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OUR BEST TEAM
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CS DUSHYANT JAIN CA CMA SOPAN R. GAIKAR

FOUNDER FOUNDER
CS AKSHAY BAHIRWADE CS VINITA VAID CS RAHIM SHAIKH
"To Be The Best

Learn From The Best"
DUSHYANT JAIN
FOUNDER
He Founded I Can Academy, Pune along with CA CMA

Sopan Gaikar, which is India’s Largest Academy for
CS Course. Has worked Some of India’s Biggest
Companies like Reliance Industries Limited, National
Securities Depository Limited and Prakash
Industries Limited. Has 11 years of Teaching
Experience and has taught over 12000 Students
Pursuing Professional Courses. From Rank 1 to Rank
25, his students have got all the Ranks in CS Course.
More than 500 Students have become
Company Secretary under his guidance.
He is also a Motivational Speaker, a
Cyclist and Marathoner.
CA CMA SOPAN R.
GAIKAR
FOUNDER
He shined as an all India merit ranker in CMA, 5th in final & 30th in
intermediate exam. He secured exemptions in 7 out of 8 subjects in CMA
final. Poised with the confidence & ability to stand different, he has been
able to make a remarkable impact in every place. Mr. Sopan R. Gaikar is a
commerce graduate from BMCC & a Chartered Accountant & Cost
Accountant by profession. He has rich practical experience of working
with companies like Infosys, T-Mobile & Orange. He is the youngest
employee to get employee of the year award while working with Infosys
and t-mobile. He has to his credit rich experience of conducting audit of
companies like Mapro, Kumar builders, Sagar Cruise India Ltd. and many
more. He is also serving as a guest faculty at leading business school. He
teaches practical subjects like Costing, Accounts, Taxation & Financial
Management. He is also author for idol publications. He is also a technical
analyst in stock market & has conducted technical analysis
workshops throughout India. He is also a practicing
Chartered Accountant & a fellow member of ICAI.
His understanding of concepts & vision makes him
stand different from masses.
CS AKSHAY
BAHIRWADE
He is an Associate Member of The Institute of Company

Secretaries of India. He is an MBA with specialization in
Finance and BBA with specialization in Finance from the
University of Pune and topper in Finance with 86 Marks in
the college. He is also pursuing LLB from The University of
Pune. He Has done his articleship in Listed NBFC in Pune
and having 4-year experience of Listed Company. He has
also prepared a project on Working Capital Requirement in
Co-operative Bank. He has more than 5 years teaching
experience and taught more than 5000 students at CA CS
CMA level. He was a professor at MIT college for 1 year. He
also got an award from the Governor of
Maharashtra for contribution to the
education sector. He is also National Judo
Player.
CS VINITA VAID
AIR 6 - CS Executive
AIR 4 - CS Professional
Vinita Vaid is a qualified Company Secretary with a proven track record

of academic excellence. Besides CS, she has also completed her
master's in commerce. Her dedication and hard work have earned her
the prestigious All India Rank 4 in CS Professional and All India Rank 6 in
CS Executive. She has also completed her CS Management Training at
LTIMindtree Limited, where she gained practical experience in various
aspects of the field (Company Law, Listing Regulations, Overseas
Compliances, etc.). With a passion for education, she has also served as
a guest lecturer in a renowned academy, teaching LODR to CS
Professional students. She has a passion for helping others learn and
achieve their goals, and her students consistently praise her engaging
teaching style and her ability to simplify complex concepts. Her
experience in both academic and the corporate world has equipped her
with a unique perspective and valuable insights into the CS
profession. With her impressive academic record, positive
attitude and a genuine desire to help students
succeed, she is well-equipped to join ICan Academy
for guiding CS aspirants towards success.
ABOUT
ICAN CS CLASSES
ICan is an Exclusive Class for CS Course Based in Pune! The

academy was started in May 2014 by CS Dushyant Jain & CA CMA
Sopan R. Gaikar. Till now more than 200 students of the academy
have become company secretary. Till now more than 200 students
of the academy have become company secretary. The academy has
great infrastructure. The academy is an exclusive academy for CS
course. The academy has produced more than 37 merit rankers at
foundation level and more than 500 students have cleared CS
executive. We are the Highest Result Producing Academy
throughout India, with Students having the
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CS EXECUTIVE – NEW SYLLABUS
INDEX
Sr. No Particulars Page No.
To be filled by
students
1 Basics Of Law
2 Constitution Of India
3 Interpretation Of Statutes
4 General Clauses Act, 1897
5 Administrative Laws
6 Law Of Torts
7 Indian Limitation Act, 1963
8 Civil Procedure Code, 1908
9 Indian Penal Code, 1860
10 Criminal Procedure Code, 1973
11 Indian Evidence Act, 1872
12 Special Courts, Tribunal Under Companies Act And Other
Legislations
13 Arbitration And Conciliation Act
14 Indian Stamp Act, 1899
15 Registration Act, 1908
16 Right To Information Act, 2005
17 Information Technology Act, 2000
ABOUT CS DUSHYANT JAIN
 Qualification – B.Com, CS
 Founder of ISME
 Founder of ICan Academy
 Graduate in commerce from Pune University.
 He pursued LLB from ILS Law College
 He is also a motivational speaker.
 He has worked in companies like RIL, NSDL, Prakash

Industries.He was involved in listing of Prakash Industries
 He has 10 years teaching experience and has taught over

10,000 students.
 Amongst students he is popular as La actwguru.
CS CS and Only CS -1-

CHAPTER: 1
BASICS OF LAW & JURISPRUDENCE
SOURCES OF LAW
The nature and meaning of law has been described by various judjes. However, there is no unanimous
opinion regarding the true nature and meaning of law. The reason for the non similarity of opinion
regarding the meaning of law is that the subject of law is dealt by different judges at different time,
from different point of view in terms of nature, scope, source and function of law as per the needs of
different times.
Therefore, it is not practicable to give a precise and definite meaning to law which may hold good for all
times to come. So for the better understanding of the term law we will refer and understand the
definition given by different judges or jurists at different times.
So we shall refer to some definitions and discuss them.

For the purpose of clarity and better understanding of the nature and meaning of law, we may classify
various definitions into five broad
1) Natural School: Most of the definitions of law Were given by Romans

Ulpine Justinians Digest Salmond Ancient Hindu view.
Law is art & science Standard of What is Body of principles Law is command of
of what is equitable just and unjust. recognized & applied god and not any
and goods by state [Govt.] in political rule
administration of
justice. Everybody including
the ruler is bound to
follow it.
2) Positivstic School :
John Austin :- Law is aggregate of rules set by men as politically superior for the men as political
subject.
(inke hisab se politically superior logon ne law banaya, un logonke liye jo ek opllitical subject hai –
insan)
Kelsen gave a ‗pure theory of law‘. According to him, law is a ‗normative science‘. The legal norms are
‗Ought‘ norms as distinct from ‗Is‘ norms of physical and natural sciences.
(kelsen ke hisab se law niyam se related hai, norms ka matlab hai niyam)
Law does not attempt to describe what actually occurs but only prescribes certain rules. The science of
law to Kelson is the knowledge of hierarchy of normative relations. All norms derive their power from the
ultimate norm called Grund norm.
3) Historical Definition of Law :

Savigny‘s theory of law can be summarised as follows:
− That law is a matter of unconscious and organic growth. Therefore, law is found and not made.
− Law is not universal in its nature. Like language, it varies with people and age.
− Custom not only precedes legislation but it is superior to it. Law should always conform to the
popular consciousness.
− Law has its source in the common consciousness (Volkgeist) of the people.
− Legislation is the last stage of law making, and, therefore, the lawyer or the jurist is more
important than the legislator.
Sir Henry Maine :- Law has come down to us in close association of 2 notions :
(a) The notion of order
(b) The notion of force.
4) Sociological definition of law :

Duguit :- Law is essentially and exclusively a social fact.
Ihering :- Law guarantees rights to citizens and also punishes citizens, if laws are not followed, so
law relates to society.
Roscoe Pound, analysed the term ―law‖ in the 20th century background as predominantly an
instrument of social engineering in which conflicting pulls of political philosophy, economic interests
and ethical values constantly struggled for recognition against background of history, tradition and
legal technique
KAHTA HAI PAUND,

LAW SAMAJ SUDHARNE WALA HAI GROUND
5) Realist Definition of Law :

Holmes : Law is statement of circumstances which is enforced through courts.
According to Johg Gray, law is what judges declare.
(Law main kafi sari situations hoti hai jinhe courts enforce karta hai)
Lets Revise all the Schools of Law quickly:
Natural Positivistic Historical Sociological Realist
Natural Law means Law is creation of Law is found and Law is a social Law is uncertain in
set of principles of state. not made, it is self institution and its nature. Societies
human conduct existant. aim is to fulfill keep on changing
which are based on demands of and so law must
a reason or divine society. also change as per
law and, it comes changes in society.
from God or
Supreme Authority
and not from
politically superior
authority.
Law relates to Without sovereign Law had its The task of law is It focuses on the
justice and ethics. there can be no existance even social engineering decisions of the
law. before the system and as per this Court.
of Government. school various
interests of society
are to be
protected by law.
The source of law The task of judges Law is independent Laws are made for Before passing
is the supreme is not to make laws of political welfare of society. judgement the
authority and the but to interpreat authority and judges are to
law is binding on the law. enforcement. consider what are
all persons. the realities
relating to case.
It is based on Typical law is The Typical Law is Roscoe Pound was Law is not just
moral ideals which statue (made by custom and in the main statue but the
have universal politically superior interpreting the contributor to this interpretation of
applicability. body) statues the judges theory. the statue.
For example, should consider
Rituals followed by history of
Hindu Dharma Can legislation.
be considered as
natural laws in
India.
SIGNIFICANCE OF LAW
Significance of Law means the importance of law in the Society. The significance of law can be
understood from the following points:
The law and the system through which the law operates has been developed over many centuries and it
now includes statues, judicial decisions, customes and conventions (personal agreements between the
parties)
The laws are not static and as socities change the laws are also changed to meet the requirements of the
society.
Existing laws must be consistent with the general statements, customs and aspirations of the people. for
example shariya law can not exist in India as it exists in Afghanistan as the customs of India and
Afghanistan are different. (law ko custmos ke khilaf nai hona chahiye)
Modern science and technologies have created new and big ambitions in men and materialism and
individualism (promoting self interest) prevails at the every sphere of life so as a result of this even laws
have undergone a transformation in terms of concepts and structures.
Now abstract justice has been replaced by social justice due to laws.
Laws provide a hope of security for the future and removes imbalances in the social structure and plays
an important role in achieving socio economic goals.
Law is the vehicle of social change and an instrument of social justice.
SOURCES OF INDIAN LAW

It means the manner in which Indian laws are made:-
 Primary source
 Secondary source
Laws are made effective:

(a) By requiring damages for the disobedience.
(b) By asking the person to perform the act, which he has failed to perform.
(c) By preventing disobedience.
(d) By administering some kind of punishment.
Significance of law
(a) Law is not static, as the societies change, the law changes.
(b) Austin contends that law originates from the sovereign.
PRIMARY SOURCE
 CUSTOMS:-
JO REET RIVAAZ PAHLE SE CHALE AARAHE HAI,
WAHI CUSTOMS KHALATE HAI
 It means accepted behavior by the society. There are two types of customs.
(i) Custom without sanction
These are non-obligatory customs. Not enforced by law.
(ii) Custom having sanction (aise cusotms jinke pas law ki Shakti hai, jihe law enforce karta hai)
a. Legal customs
Custom enforced by law. They have been recognised and enforced by the courts and
therefore, they have become a part of the law of land.
Legal customs are again of two kinds:
(a) Local Customs (b) General Customs.
(a) Local Customs: Local custom is the custom which prevails in some definite locality and
constitutes a source of law for that place only. But there are certain sects or communities
which take their customs with them wherever they go. They are also local customs. Thus,
local customs may be divided into two classes: – Geographical Local Customs – Personal Local
Customs These customs are law only for a particular locality, section or community.
(b) General Customs: A general custom is that which prevails throughout the country and
constitutes one of the sources of law of the land. The Common Law in England is equated with
the general customs of the realm
b. Conventional customs
These customs become enforceable due to any kind of contract between the parties. These
customs are binding due to an agreement between the parties, and not due to any legal
authority independently possessed by them. Before a Court treats the conventional custom as
incorporated in a contract, following conditions must be satisfied: –
It must be shown that the convention is clearly established and it is fully known to the
contracting parties.
There is no fixed period for which a convention must have been observed before it is
recognised as binding.
Convention cannot alter the general law of the land.
It must be reasonable. Like legal customs, conventional customs may also be classified as
general or local. Local conventional customs are limited either to a particular place or market
or to a particular trade or transaction
Essentials of valid customs

1. It should be ancient
2. It should have been continuously used.
3. It should be reasonable
4. It should be certain
5. It should not be opposed to public policy
6. It should not be immoral
7. It should not be opposed to law
8. It must be peacefully enjoyed
 PRECEDENT
COURTS KE DWARA JO DECISION PAAS KIYE GAYE HAI,
WO DECISIONS FUTURE KE DECCISIONS KE AADHAR BAN JATE HAI
Precedent refers to the decision passed by the Court which can be used for future references.
Example : The concept of separate legal entity of company is interpreted through the decision of
court passed in case of Saloman v Saloman Company.
The principle of stare decisis states that while interpreting any law, previous decisions passed by the
court can be referred.
Stare Decisis
As per the principle of stare decisis decision of high court is binding on all sub-ordinate courts and
tribunal.
The doctrine of stare decisis means adherence to the past decision and do not change rules which are
established.

It is a useful principle which brings uniformity and surity in the law. Under the stare decisis doctrine,
a principle of law which has been settled by a series of decisions passed by the Courts is generally
binding on the courts and should be followed in similar cases.
In simple words, this principle means that similar cases should be decided similarly. This doctrine is
based on public policy.
Although doctrine should be strictly foloowed by the Courts, it is not universally applicable.
The doctrine should not be considdered as a rigid and unchangaeable doctrine which must be applied
at the cost of justice
The intention of the doctirine of state decisis is to bring uniformity in the decision passed by the
Courts, the doctrine is not iniversally acceptable and is rigid.
Features of high court

1. In the high court, the cases are decided by
the benches of High court.
a. Smallest bench consist of single Judge
b. 2 judges of High court constitute a
division bench.
2. Supreme court is the highest court of the
country and its decisions are binding on all
the sub-ordinate courts and tribunal.
Supreme Court may depart from its earlier
decisions on account of special reasons.
3. Decision passed by one High Court is not binding on other High Court and has persuasive value
only.
Kinds of precedent
1. Original precedent
It means a new rule made by the court by its decision.
2. Declarative Precedent
When the original precedent is followed by the court in subsequent decisions such precedent
becomes declarative precedent.
3. Persuasive Precedent
The prior decisions passed by the Court which another court is not obliged to follow.
4. Absolutely Authoritative Precedent
The decision passed by a higher court which is above the present court which has decided the
matter, the decision of higher court is absolutely authoritative precedent for the lower courts.
5. Conditional authoritative precedent
The decision passed by one bench of High Court is conditionally authoritative precedent for the
other bench of High Court and such decision may be changed by other bench.
OBITER DICTA
The literal meaning of this Latin expression is ―said by the way‖, it refers to the facts and the
principle that court considers while passing a decision are not the part of decision but can provide a
guidance to future judges while deciding on similar matters. So basically these are the facts or
circumstances that the court considers at the time of passing th edecision and can be found in the
internal records of the case, but these facts are not present in the decree or judgement. The judges
are not bound to follow them but they can take advantage of those facts in case of need.
These facts are not binding on the future judges.
These are the observations or personal opinions of the Judges which are not material to the present
for instance Judge may illustrate his reasoning by refering to some hypothetical situations. These
observations are obiter dicta.
For example: if the accused was getting angry and loosing his temperament, at every point which was
raised against him during proceedings by the prosecution, the judge noted this fact in his records and
when the jugde concluded that the accused is convict, the judge also considered the fact of loosing
temperament, but this fact was not mentioned in the judgement or the decree, but this fact will be
present in the internal records of the particular case and this fact can be used by future Judges, this
is obiter dicta.
RATIO DECIDENI
JIS AADHAR PAR COURT FAISLA SUNATA HAI,
RATIO DECIDENDI WAHI KAHLATA HAI
This principle considers the reasons and facts on basis of which court passes a decision. The decision
passed by High Court is binding on sub-ordinate court so sub-ordinate court, while passing decisions
shall consider the reasons which were considered by the higher court in similar situations, these facts
and circumstances are the part of the judgement.
A decision given by the Court has 2 aspects:
1. What principle the decision of Court makes on rule of law, which becomes obligatory for the
subordinate Court is Ratio Decidendi.
2. What the case decides between the parties, it becomes res judicata between the parties.
The case of Saloman Vs Saloman in Company Law is also an example of Ratio Decidendi.
So for example if the Maharashtra, High court in its judgement states that if Couple lives in liing
relationship and produce a child then they should be considered as husband and wife, now the facts
and reasons that the Court considered at the time of passing the decision shall be considered by all
the Courts that are subordinate to the High Court of Maharashtra.
Difference Between Obiter Dicta and Ratio Decidendi

Obiter Dicta Ratio Decidendi
Facts & principals which were considered at the Reasons on basis of which any idecision is given.
tme of giving decisions.
Not the part of decision Reasons are the part of judgement.
Serves as a guidance to future judgement It is binding on inferior courts.
It can be found from the records of the case. It is mentioned in the judgement.
 STATUTES
Legislation means the ―making of law‖ (every method of making of laws is also called as legislation),
legislation is considered as best source of law, It is sometimes called jus scriptum (written law) as
opposed to the customary law or jus non-scriptum (unwritten law). Salmond prefers to call it as ―enacted
law‖.
Statute, law or statutory law is what is created by legislation, for example, Acts of Parliament or of
State Legislature.
Legislation is either supreme or subordinate (delegated) (as per Salmod).

Supreme Legislation is the law made by the parliament. These legilations are made by the Supreme
Authorities such as Parliament or State Legislature, it can not be repealed or replaced. Constitution of
India, or Any law made by Parliament or State Legilature.
Subordinate Legislation is the law made by an authority which is not the Parliament or State Legislature
but has the power of making laws or rules for its own conduct or for specific subject matters. However
laws made by subordinate authorities are controlled by Supreme Legislation, so subordinate legislation
get its validity from Supreme Legilations.
Kinds of Subordinate Legislations:

Executive Colonial Municipal Autonomus Judicial
Legislations Legislation
Rules or Orders made Power of Self Parliament and State The supreme The Supreme
by Central or State Government was Legislatures give the Law gives the Court and High
Governements or by given to Colonies. powers to municipal powers to Courts have
various statutory authorities to make certain power of making
authorities. special laws in bodies to reules for their
respect of their make rules own procedures.
areas. and
regulation for
managing
their own
affairs.
Under the Powers Such laws are called Universities, Article 145 of
contained in various as byelaws. Companies, Constitution
laws, for example the Statutorty gives the power
Central Government Corporations to Supreme Court
makes laws under are given and article 227
Companies Act, 2013. powers by gives the power
Law to make to High Court to
rules for make rules with
their internal respect to the
management. procedures and
exercising of
supervision on
subordinate
Courts.
PERSONAL LAWS
In many cases, the courts are required to apply the personal law of the parties where the point at issue
is not covered by any statutory law or custom. In the case of Hindus, for instance, their personal law is
to be found in:
(a) The Shruti which includes four Vedas.
(b) The ‗Smritis‘ which are recollections handed down by the Rishis or ancient teachings and precepts of
God, the commentaries written by various ancient authors on these Smritis. There are three main
Smritis; the Codes of Manu, Yajnavalkya and Narada.
Hindus are governed by their personal law as modified by statute law and custom in all matters relating
to inheritance, succession, marriage, adoption, coparcenary, partition of joint family property, pious
obligations of sons to pay their father‘s debts, guardianship, maintenance and religious and charitable
endowments.
The personal law of Mohammedans is to be found in:–
(a) The holy Koran.
(b) The actions, percept and sayings of the Prophet Mohammed which though not written during his life
time were preserved by tradition and handed down by authorised persons. These are known as Hadis.
(c) Ijmas, i.e., a concurrence of opinion of the companions of the Prophet and his disciples.
(d) Kiyas or reasoning by analogy. These are analogical deductions derived from a comparison of the
Koran, Hadis and Ijmas when none of these apply to a particular case.
(e) Digests and Commentaries on Mohammedan law, the most important and famous of them being the
Hedaya which was composed in the 12th century and the Fatawa Alamgiri which was compiled by
commands of the Mughal Emperor Aurangzeb Alamgiri.
Mohammedans are governed by their personal law as modified by statute law and custom in all matters
relating to inheritance, wills, succession, legacies, marriage, dowry, divorce, gifts, wakfs, guardianship
and pre-emption
SECONDARY SOURCE
 JUSTICE, EQUITY AND GOOD CONSCIENCE
 When the laws are not clear on any particular matter, the court must provide an
interpretation or make such decision which is on the lines of justice, equity and good
conscience.
 Justice, equity and good conscience may mean the rules of English Law, in if they are
applicable to Indian society and circumstances.
 The Ancient Hindu Law had its own versions of the doctrine of justice, equity and good
conscience.
 In its modern version, justice, equity and good conscience as a source of law, got its origin
when British administration began providing justice in India.
 The rules of the several High Courts established by the British Government directed that when
the law fwas silent on any matter, they should decide the cases in accordance with justice,
equity and good conscience.
 Justice, equity and good conscience have been generally interpreted to mean rules of English
law on similar matter as changed, to suit the Indian conditions and circumstances.

 The Supreme Court has stated that it is now well established that in the absence of any rule
of Hindu Law, the courts have authority to decide cases on the principles of justice, equity
and good conscience as long as it is inconsistent with, any rule or theory of Hindu Law.
Que: The charters of several high courts established by british government has laid down the rule to
decide a case where the law on the matter is silent. Explain with the help of Supreme Court of Indias
View on the similar situation.
 SOURCES OF ENGLISH LAW
i. Common law
Common law refers to legal customs that were followed in England. In England the decisions
passed by courts on the basis of legal customs were merged and laws were developed.
ii. Principles of equity

When legal customs are adopted as law, there can be many issues for example in some cases
legal customs are never against kings or chancellors so at the time of making the laws the
concept of ―fairness‖ should also be followed which will ensure equal applicability of law.
iii. Law merchant

One of the major sources of commercial laws is the commercial transactions between the
parties. The parties to the commercial transactions such as customers, agents, sellers were
asked to give their opinions and on the basis of their opinions , business laws were made in
England.
iv. Statute law

All the rules and regulations are made on the basis of law passed by Parliament.
SOURCES OF MERCANTILE AND COMMERCIAL LAW

Indian mercantile laws are formed on the lines of English Mercantile laws. England is one of the most
important part of Mercantile laws.
On the basis of judicial decisions passed from time to time, the Indian Mercantile laws have been
changed /altered from time to time.
The commercial practises and customs followed in India also regulates the commercial transactions and
contract Act does not affect such customs.
JURISPRUDENCE
JURISPRUDENCE KA MATLAB KANNON KI SAMJH
Juris means law and prudence means knowledge, so the word jurisprudence means knowledge of law.
Law can be classified into :

SUBSTANTIVE LAW PROCEDURAL LAW
It deals with rights and duties It deals with procedures
The meaning of word jurisprudence has changed over time.
Bentham and Austin, stated that jurisprudence is concerned with analysis of formal structure of law,
however in the later year more alternate concepts were offered as people were not satisfied with the
analytical composition (analyse the law as it is) done by Benthan and Austin.
One conclusion about the word jurisprudence has been drawn, that it relates to law.
Various scholars have defined ―law‖ in their own ways and due to each different definition of law, the
scope of jurisprudence also changes as, it relates to law.
There are two aspects of law :

An abstract body of rules Social objective
It means law contains different rules for different It means the laws are made to protect the
purposes, society.
However many scholars, instead of recognizing both, have chosen any one of the aspects.
Sociological jurisprudence states that the laws are made with the intention to resolve social problems.
Teleological jurisprudence states that laws are collection of facts and exists because of purpose.
Salmond states that jurisprudence means a scheme of law, which uses the words in vague or general
sense in which obligations of human are included.
As per him jurisprudence can be divided on 3 streams :
In the narrowest sense, jurisprudence includes only part of science of civil laws which are called as first
principals of civil law.
Jermy Benthan used jurisprudence in 2 senses:

Law referring to substance Interpretive history consisting of case laws & commentary.
As per Prof. Julius Stone jurisprudence is ―Lawyers Extraversion‖

As per G. W Patan ―Jurisprudence does not attempt to find universal principal of law, but to develop a
science which will explain relationship between law, concepts and the life of society.
Through the legal system disputes are settled.
BHAI PATAN TO BOLTA HAI KI,
JURISPRUDENCE SE EK LAW AUR SOCIETY,
KA RELATION SAMJHA JATA HAI!
LEGAL THEORY
It is a part of jurisprudence that involves development and analysis of foundation of law.
Two important theories
Normative legal theory Positive legal theory
What the law should be? What is law?
Why is law?
Why it is in this way?
Prof. H L A Hart gave meanings relating to positivism, as follows :

INKE HISAB SE LAW, SUPERIOR AUTHORITY KA COMMAND HAI
− Laws are command, distinct from sociological and historical enquiries.
− Logical decisions can be made
− Moral judgements cannot be established without pre- determined rules.
− Law should be kept separate from what the law should be.
− As per the Hart, it is necessary for law and morality to have certain elements of natural law as a
logical requirement
Merits Demarits
The theory of Hart has discouraged speculative Hart has compared his theory with the game of
thinking. Cricket and Umpires can be compared with
Government officers. Sometimes not only one
officer but Committee makes law, where as in
Cricket there is only one umpire.
The power of Government officers is based upon Hart has confused us with regard to powers and
law. laws.
The Powers are given to State Officers to make Hi explanation of pre legal and legal society seems
secondary laws (rules) bit vague.
THON AUSTIN also gave meaning of positivism.

AUSTIN BOLTA HAI, KI JURISPRUDENCE EK,
POLITICAL SUPEROUR AUTHORITY KA FARMAN HAI,
JO SAB KO FOLLOW KARNA HAI!
− It is a command of political authority, which the citizens have to follow.
− It is given by sovereign authority which is politically superior.
− It has sanction behind it.
Criticism of Positivism:
1. Welfare states pass a number of social legislations that does not command the people but confer
rights and benefits upon them. Such laws are not covered under the command theory.
2. According to Austin the sovereign does not have to obey anyone but the modern states have their
powers limited by national and international laws and norms. For example, the Government of India
cannot make laws that are violative of the provisions of the Constitution of India.
3. Austin does not provide for judges made laws. He said that judges work under the tacit command of
the sovereign but in reality judges make positive laws as well.
Merits of Austins Theory Demerits of Austin Theory
For the first time analytical metnod was introduced Custmos are ignored.
for inderstanding law.
Its simple and consistent No place of Judge made laws
Austin correctly said that sanction helps in better The word command is over emphasized.
enforcement of law.
Austins theory was later improved by Salmond and Law is based on religion.
Grey.
Permissive character of law is ignored.
Roscoe Pound
POUND BOLTA HAI, KI JURISPRUDENCE EK,
LAW SE SIRF SAMAJ KA ACCHA HONA CHAIYE
He was a supporter of sociological jurisprudence.

He drew a similarity between task of lawyer and engineer and gave the theory of social engineering. The
goal of his legal theory was to provide maximum satisfaction of wants of society with minimum wastage.
Such a society according to Roscoe Pound would be an ‗efficient‘ society.
Realisation of such a social structure would require balancing of competing interests.
For any legal order to be successful in making an efficient society, there has to be a recognition of
certain interests, such as individual, public and social.
As per him for any legal order (law) to be successful must have:
- Recognition of interest of individual public and society.
- The limits up to which such interest will be recognized.
- Securing such interest.
According to Roscoe Pound, for fixing the scope and the subject matter of the legal system, following
five things are required to be done:
1. Preparation of list of all interests and their classification.
2. Selection of the interests which should be legally recognized.
3. Specification of the limits up to which interest will be proteccted.

4. Creation of solutions through which laws may secure such interests when interest have been
recognised, and
5. Evolution of the principles of valuation of interests.
(kul milakar roscoe pound ke hisab se law ko sare logon ke interest ―hit‖ protect karne chahiye aur is
ke liye aap sare logon ke hiton ko categorise Karen, fir dekhen ki kis had tak unhe protect karna hai
aur fir law banaiye)
CRITICISM
− Theory talks about interest but nothing is specified regarding measuring of such interest.
− Use of the word engineering is criticized as society keeps on changing and is dynamic and not static
like factory. Law is a social process rather then result of engineering.
− His theory gives more power of interpretation to judges in comparison with legislature as judges will
have to balance different interest.
− It is difficult to differentiate between public interest and social interest.
− Apart from the interest suggested by pound, selection of new interest is a matter of policy.
− The theory says that wants of maximum number of people should be satisfied with mimimum friction
so it promotes public and social interest which may result in curtailing individual interest.
− The Classification of social and public interest is overlapping and misleading.
QUE:Critically examine Roscoe Pound‘s theory of interests
Thon William Salmond

SALMOND BOLTA HAI KI LAW KA EK HI KAAM,
LOGON KO DO JUSTIC AUR LO RAAM KA NAAM!
Law Professor of new Zealand, who also became the judge of supreme court of new Zealand, has also
made contribution towards jurisprudence.
According to him purpose of law is to deliver the justice to the people and he differentiated from
Benthan and Austin who did analysis of law without understanding its purpose.
He differentiated between ―a law and the law‖, a law refers to concrete law ( C.P.C ) , the law refers to
abstract law ( Civil Law ).
According to Salmond, some kind of compulsion is required to maintain justice and a person cannot be
compelled to do what he considers equitable in his own eyes.
One of the most important function of the state is to maintain justice.
According to Salmond the primary objective of state is the administration of justice and laws are made
to achieve such justice.
Law consists of pre- established and authoritative rules, which the judges apply in administration of
justice and judges should not apply their own discretion.
Salmond further said that the administration of justice is perfectly possible without laws though such a system is not
desirable. A court with free discretion in the absence of laws is capable of delivering justice if guided by equity and
good conscience.
CRITICISM
- As per Salmond laws must provide justice, but there are many laws that are unjust
- Justice is not only purpose of law, there are many other purposes.
- There is a contradiction when Salmond says that the purpose of law is the administration of justice but limits
‘jurisprudence’ to the study of the ‘first principles’ of civil law of a national legal system because justice is a
universal concept, the jurisprudential analysis of law should not be constrained by national boundaries.
Hans Kelson
Austrian philosopher: known for pure theory of law. He believed that contemporary theories were impure
as they were drawn from other fields like religion and morality.
He rejected the concept of justice as ―there are many laws which may be unjust but continue as law‖
Kelson described law as normative science as distinguished from natural sciences.

According to Kelsen, through legal norms we judge, whether an action is justified or not.
Kelsen developed a basic norm, which was called as Grundnorm and on the basis of such grundnorm all
other norms are developed and such grundnorm is the purest law.
For example, The Constitution of India may be treated as Grundnorm, as on the basis of Constitution of
India all other laws are developed in India.
Salient Features of Pure Theory:
 It is concerned with what law is not with how law should be.
 It tries to reduce the confusions created by natural school.
 It is not concerned with effectiveness of legal norm.
 This theory considers law as normative science.
KELSON BOLTA HAI, KI LAW SAHI HAI YA NAI HAI,
YEH PATA LAGAO GRUNDNORM SE!
Criticism of Kelsen’s Pure Theory:

1. It is difficult to trace ‗grundnorm‘ in every legal system.
2. The Pure Theory also did not give the timeframe for which the effectiveness should hold for the
requirement of validity to be satisfied.
3. Kelsen‘s theory ceases to be ‗pure‘ the moment one tries to analyse the grundnorm because then one
will have to draw upon subjects other than law like sociology, history and morality.
4. This theory ignores natural school.
5. Sociolgical experts criticized this theory on the ground that it lacks practical significance.
Merits:
 Kelsen recognised international law as law.
 It is considered as one of the best theories.
 Kelsen has uplifted the status of law by treating law as separate body of knowledge.
Jeremy Bentham was the pioneer of analytical jurisprudence in Britain. According to him ‗a law‘ may be
defined as a combination of signs, declarative of volition, assumed or adopted by a sovereign, in a state,

concerning the conduct to be observed in a certain case by a certain person or a class of persons, who in
the case in question are or are supposed to be subject to his power.
Thus, Bentham‘s concept of law is an imperative one. As per Bentham Law is a command that gives pain
and pleasure. As per the concept of pleasure Law should give happiness, and law also gives pains as it
creates obligations on Individuals.
As per him the objective of law is promotion of happiness to greatest number of persons.
As per Bentham, utility means a charecterstic through which evil can be prevented and good can be
ensured. This utility of law is considered as pain and pleasure.
As per Bentham happiness of the community can be ensured by achieving 4 goals:

Subsistence, Abundence, Equality, Security for Citizens.
BENTHEM BOLTA HAI, KI LAW EK,
COMBINATION HAI, JISMAIN, SAHI KYA HAI,
GALAT KYA HAI, AUR JO SARKAR ADOPT KARTI HAI!
Bentham said that every law may be considered in eight different respects:
1. Source:
The source of a law is the will of the sovereign.
2. Subjects:
These may be persons or things. Each of these may be active or passive subjects, i.e., the agent with
which an act commences or terminates.
3. Objects:
The goals of a given law are its objects. For example the object of Company Law is amend and
consolidate the law relating to Companies.
4. Extent:
Direct extent means that a law covers a portion of land on which acts have their termination indirect
extent refers to the relation of an actor to a thing.
5. Aspects:
Every law has ‗directive‘ and a ‗sanctional‘ part. The ―directive‖ part suggests the will of Soverien in
different situations (for example if yu have passed special resolution file MGT 14 with ROC) and the
―Sanction‖ part relates the force of a law (for example if you don‘t file the form in 30 days you will
have to pay penalty) . The four aspects of the soverign will are command, prohibition, non-
prohibition and non-command and the whole range of laws are covered under it.
6. Force:
The motivation to obey a law is generated by the force (may be in form of penalties) behind the law.
7. Remedial appendage:
These are a set of subsidiary laws addressed to the judges through which the judges cure the evil
(compensation), stop the evil or prevent future evil.
8. Expression:
A law, in the ultimate, is an expression of a sovereign‘s will. The connection with will raises the
problem of discovering the will from the expression.
Criticism of Bentham’s theory of law

1. Due to Bentham‘s strait-jacketing of laws into an imperative theory- all laws have to be either
command or permission, it does not take proper account of laws conferring power like the power to
make contracts, create title etc.
2. Bentham did not give a fair treatment to custom as a source of law. He said customs could never be
‗complete‘.
3. Bentham‘s theory did not allow for judge made laws and hoped that such laws would be gradually
eliminated by having ‗complete laws‘.
4. To judge an action according to the pleasure- pain criterion is to judge it subjectively. The theory did
not provide how a subjective criterion of pain and pleasure can be transmuted into an objective one.
5. It is not always true that an increase in the happiness of a certain segment of society will lead to an
increase in the overall happiness level because it might be associated with a diminution in the
happiness of some other rival section of the society.
6. No place of ethics, values and morals in this theory.
Benefits:
 It created a way for sociological school of jurisprudence.
 More importance is given to security of honour, property and status of a person.
 He focused on codification of customs due to which legal reform took place.
Merits Demerits
He has given more focus on security as it is related He failed to create balance between individual and
to protection of Honour, Property and status of social interest.
person.
It created a way for sociological school of Lesislation is one of the sources of law but not only
jurisprudence. the source of law.
He linked philosophy with practical legal His thoey favors capitalism.
prepositions.
Que: The sovereign power of making laws should be wielded, not to guarantee the selfish desires of
individuals, but consciously to secure the common good. Critically examine this statement of Bentham.

CHAPTER: 2
CONSTITUTION OF INDIA
SALIENT FEATURES OF THE INDIAN CONSTITUTION

1) It declares India to be a sovereign state – It means we are an independent country and the no other
external power can rule the country.
2) A democratic country (people elect their own representatives).
3) Secular country (the word secular was added in the constitution in the year 1976 by 42nd
amendment).
4) Socialist country – It means control of the Govt. in the means of production.
5) Republic state – head of the Govt. is an elected person not a monarch or any dictator.
6) Constitution gives independence to the judiciary.
7) Constitution describes relation of Govt. with the people of the country.
8) Constitution describes relation of two state Govt. & relation of state Govt. with Central Government
by way of distribution of power between state & central Govt. is also given.
9) Constitution of India constitutes 448 articles 12 schedules & divided into 25 parts.
10) Thus, constitution is a document ruling the whole country.
11) Constitution describes the basic structure of the government.
PREAMBLE
The preamble contains the fundamentals of the Constitution. It contains the purpose and objectives of
the constitution. It declares India to be Sovereign, Socialist, Secular, Democratic, Republic and secures
to its citizens;
 Justice: Social, Economic and Political
 Liberty of thought: expression, belief, faith and worship
 Equality of status and opportunity
 Fraternity, assuring the dignity of individual, and the unity and integrity of the nation.
BASIC STRUCTURE
Basic structure means the form of the Government. There are two forms of Govt. unitary and federal.
Unitary is followed in Canada, China, France, Japan federal is followed in USA.
Many times the question has been raised as to, whether our constitution and Govt. is federal or unitary,
federal means an agreement, which defines the powers of two sets of the Governments i.e. national and
regional. Unitary means the supreme power belongs to the Central Government and there is no
constitutional division of power between the national and regional Governments. The question arises
whether Indian Constitution is federal or unitary.
The constitution of India is basically federal but also has some unitary features:
a) The majority of judges of Supreme Court in the case of Keshavananda Bharati V/s. State of Kerala,
decided that Indian constitution is federal.
b) Later on some controversies were put up whether the structure is unitary or federal.
c) To decide this issue, we will have to look at the contents of the constitution & the features of unitary
& federal systems.
FEATURES OF FEDERAL SYSTEM

1) Dual Government –
India has this characteristic as we have central & state Govt.
2) Distribution of Powers-
India satisfies this feature by distributing powers between Central & State Govt. through various lists
viz. state list, unitary list and concurrent list.
3) Supremacy of constitution-
India has this feature too, as the constitution is supreme document ruling the country.
4) Independence of judiciary–
Judicial powers are separate from executive.
5) Written constitution–
We also have a written constitution.
6) Rigid procedure for amendment of constitution–

We also have a very rigid and difficult procedure for making an amendment in to the Constitution.
For amending the provisions of constitution, a Constitution Amendment Act has to be passed.
By above discussion we can say that India satisfies majority of the features of federalism However, there
are some peculiarities of Indian federalism:
i) Mode of Formation:
In American system all the independent states, by an agreement, founded a new central polity &
surrendered a fixed part of their powers to the newly formed polity. India followed Canadian mode
by which the autonomous units were created & they were combined to form a Central Govt.
ii) Position of states in federation:

In federal system number of safe-guards are provided for protection of interests of state, as they
were independent before formation of federal system. However, in India, states were not
independent units. So the powers are also exercised by union e.g. residuary powers or concurrent
list.
iii) Citizenship:
America has a dual citizenship system, India has a single citizenship system (under dual citizenship an
individual has two citizenships i.e. one for the state and one for the country).
iv) Residuary powers:

Residuary powers remains with the states in federal system, however in our country the residuary
powers are exercised by the Union in India.
(Residuary powers means, the power that is neither specified in state list or the concurrent list)
CONCLUSION
India is a quasi-federal state as it has features of both federal & unitary system.
Que: Examine how far the essentials of federal polity is incorporated in Indian Constitution.
Fundamental Rights:
The Constitution wants to give to the people ―liberty of thought, expression, belief, faith and worship;
equality of status and of opportunity; and fraternity assuring the dignity of the individual‖. With this
object, the fundamental rights are given in Part III of the Constitution.
The Concept of Fundamental Rights
Political philosophers in the 17th Century believed that the man by birth has certain rights which were
universal and inseparable, and he could not be deprived of them.
The Declaration of American Independence 1776, stated that all men are created equal, that have rights,
such as, life, liberty and the pursuit of happiness.
It was thought that these rights should be fixed in such a way that they may not be interfered even by
Legislature.
With this in view, some written Constitutions (especially after the First World War) guarantee rights of
the people and stop every organ of the Government from interfering with the same.
The Position in England: The Constitution of England is unwritten. No Code of Fundamental Rights
exists. In England doctrine of the sovereignty of Parliament exists and there is no legal check on the
power of the Parliament which so it is free to make any law.
The protection of individual freedom in England is not protected by constitution but on the basis of
public opinion, good sense of the people, strong common law, traditions favouring individual liberty, and
the parliamentary form of Government. Moreover, the participation of U.K. in the European Union has
made a difference.
(England main constitution nai hai par kanoonon ke dwara aur janta ke opinions ke aadhar par protection
de jati hai moolbhoot adhikaron ko)
The Position in America:
The USA wanted to protect the basic rights of people from the parliamentary cruelty. The power is given
to the Courts to interfear whenever parliament intends to take away the basic rights of the people by
making laws. In the United States ‗Judicial Supremacy‘, exists as opposed to the ‗Parliamentary
Supremacy‘ in England.
The Courts in the United States are competent to declare an Act of Congress as unconstitutional on the
ground of contravention of any provision of the Bill of Rights (fundamental rights).
The Position in India:

In India, the Simon Commission and the Joint Parliamentary Committee had rejected the idea of
Fundamental Rights.
The Nehru Committee recommended the inclusion of Fundamental Rights in the Constitution for the
country.
The demand of the people was not met by the British Parliament under the Government of India Act,
1935.
But due to enthusiasm of the people, Fundamental Rights were included in the Statement of May 16,
1946 made by the Cabinet Mission-(which became the basis of the present Constitution) to the effect
that the Constitution-making body may adopt the rights in the Constitution.
When Constituent Assembly began to work in December, 1947,the fundamental rights emerged are
contained in Part III of the Constitution the title of which is ―Fundamental Rights‖.
The Supreme Court in the case of Pratap Singh v. State of Jharkhand, decided that Part III of the
Constitution protects substantive (essential) as well as procedural rights and are protected by the
Judiciary.
Part III of the Indian Constitution guarantees six categories of fundamental rights.
No fundamental right is complete every right has reasonable restrictions.
From the point of view of persons to whom the rights are available, the fundamental rights may be
classified as follows:
(a) Articles 15, 16, 19 and 30 are guaranteed only to citizens.
(b) Articles 14, 20, 21, 22, 23, 25, 27 and 28 are available to any person on the soil of India – citizen or
foreigner.
(c) The rights guaranteed by Articles 15, 17, 18, 20, 24 are absolute limitations upon the legislative
power.
ARTICLE 12
DEFINITION OF A STATE
JO BHI SARKARI HAI WO SAB STATE HAI,
STATE KE UPAR KAFI SARE OBLIGATIONS HAI!
1) The word state is defined under Article 12 of constitution & it includes,
a) The Govt. and parliament of India,
b) The Govt. and Legislature of each state.
c) All local and other authorities,
i) Within territory of India,
ii) Under the control of Govt. of India.
2) Local authority means Municipal Corporation, district boards, panchayats port trust, mining
settlement board etc.
3) In Electricity Board of Rajasthan V/s. Mohanlal, SUPREME COURT held that -- Other authorities
include all the authorities that are created by the constitution. e.g. electricity board, office of CAG,
Election Commission of India.
4) In case of AngurBalaPurulit was held that all the electricity authorities all included under state.
5) In University of Madras V/s. Shantabai, it was all held that all the universities are included in the
definition of state because they discharge functions of the Govt.
6) In Bidi supply Co. V/s. Union of India, it was held that if the authorities were under the control of
Govt. of India, they shall be included in the definition of state irrespective of their geographical
location. E.g. Foreign embassies.
7) In Sukhdev Singh V/s. Bhagatram& R.D. Shetty V/s. Indian Airport Authority, it was held that
Airport authority is also a state.
8) In SatishNayak V/s. Cochin Stock Exchange, it was held that stock exchanges are not state as they
do not discharge any function of the state.
9) In Ajay Hasia V/s. Khalid Mujib, The SUPREME COURT held that under the given circumstances the
corporations or authorities will become state:
a) If the entire share capital of a corporation is held by the Govt.
b) If the financial assistance provided by the Govt. is such that it will meet all the expenditure of
corporation. E.g. IIT, NavodayaVidyalaya, housing boards.
c) If the corporation enjoys monopoly status granted by the Govt. such corporation enjoys the status
of state. E.g. Railway, RBI.
d) If the functions of the corporation are of public importance & closely related to Govt. e.g.
airports, defense, nuclear power etc.
e) Existence of deep & pervasive control of the Govt. in any corporation will make it state. E.g.
Govt. departments.
f) If a department of Govt. is transformed to a corporation then such corporation would be a state.
10) Zee Telefilms V/s. Union of India, it was held that BCCI is not state. As no financial assistance is
provided by the state and also it does not discharge the functions of the Government.
Que: Explain the test laid down by the Supreme Court of India for determining whether an entity is an instrumentality
or agency of the state.
ARTICLE 13
JUSTIFIABILITY OF FUNDAMENTAL RIGHTS
Fundamental rights are the basic rights granted by the constitution to every citizen of the country. These
rights are contained in part III of the Constitution of India.
The word ‘law’ according to the definition given in Article 13 itself includes – “... any Ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the territory of India, the force of law.”
EXISTING LAWS – Article 13(1)
The laws which were in force at a time when the fundamental rights were enacted.
Eg. Contract Act, Negotiable Instrument Act, Partnership Act.
FUTURE LAWS – Article 13(2)

It means the laws which were enacted after fundamental rights.
DOCTRINE OF SEVERABILITY
JO LAW CONSTITUION KE AGAINST HAI,
WO POORA INVALID NAHI HOGA
a) It is given in Article 13 of Constitution of India.
b) Doctrine of Severability is related to the provisions of law which are inconsistent or does not support
the fundamental rights.
c) According to this doctrine if any provision or provisions of any law are inconsistent with the
fundamental rights, in this case only such provisions which are inconsistent with fundamental rights
will become invalid rest of the law will remain valid and intact, if it is not inconsistent with the
fundamental rights.
d) A.K. Gopalan V/s. State of Madras, In this case the Supreme Court declared section 14 of the
Preventive Detention Act as invalid as it was against the article 22 of the fundamental rights relating
to protection against arrest and detention.
DOCTRINE OF ECLIPSE
JISE TUM SOCH RAHE THE KI WO MAR GAYA,
WO SIRF SO RAHA HAI, ZINDA HO JAEGA AGR CONSTITUION MAIN CHANGE AAYA TO
1) This is contained in Article 13 (1) of the Constitution of India. According to this doctrine the laws
which were inconsistent with the fundamental rights remained invalid but they did not die
altogether.
2) If any amendment is made in the constitution due to which the invalid part becomes consistent with
the fundamental rights, in this case such invalid part will again become valid.
Case laws:
Bhikaji Narain Dhakras V/s. State of M.P.
MP Govt. passed an act called C.P and Berar Motor Vehicles Act, 1947, the act gave power to the M. P
Govt. to regulate & control public transport business. It restricted the freedom of private bus
operators to do public transport business.
But when the constitution was passed the fundamental rights gave freedom to trade & business.
 And the C.P. & Berar Motor Vehicles Act became invalid.
 An amendment was made in the constitution which gave power to state Govt. to create monopoly
in its favor in the matter of public transport.
 After this amendment C. P. Berar & Motor Vehicles Act 1947, became valid.
DOCTRINE OF WAIVER
It is contained in Article 13 of the COI According to this doctrine, a person is the best judge himself to
decide whether he wants to avail or not to avail fundamental rights given to him by the Constitution.
 If a person denies any Fundamental Rights, he cannot claim it as per American Constitution.
 In India whether a person can waive his Fundamental right was decided in the Basheswar Nath V/s.
CIT.
In this case it was held that an individual / citizen cannot waive his F.R. granted to him by the
Constitution on the grounds of public policy.
ARTICLE 14
RIGHT TO EQUALITY
1) Equality before Law
2) Equal Protection of Law.
EQUALITY BEFORE LAW

1) It is a negative concept, which ensures that there is no special privilege in favour of any person & all
persons are treated equally & subject to ordinary laws of the land.
2) Whatever may be the status of the person all persons are treated equally by the law –
Case Kalyan Sarkar V/s. Rakesh Ranjan.

In this case it was decided by the Supreme Court that the members of the parliament & influential
politicians are not above the law & while in a police custody are to be kept in the same prison like an
ordinary prisoner.
We can conclude that before law everybody is equal.

President, State Governors & Foreign Diplomats are the exceptions to the above rule.
(Privilage is not for person but for the post)
QUE:Article 14 of the Constitution of India says that state shall not deny to any person equality before
the law or the equal protection of laws within the territory of India. Explain it. Refer the relevant
Judgements.
EQUAL PROTECTION OF LAW

1) It is a positive statement which ensures that all the persons will get an equal treatment in the similar
situations both in case of privileges & liabilities.
2) Equal laws should be applied to all the people.

Case Law :State of West Bengal V/s. Anwar Ali Sarkar.
In this case it was decided by the court that though equality before law & equal protection of law
appears to be contradictory but both the expressions means one thing & both provide a single
meaning & single objective.
DOCTRINE OF REASONABLE CLASSIFICATION

BHAI APNE CONSTITUTION MAIN CLASSIFICATION,
KIYA HUA HAI UNEQUAL LOGON KE LIYE
The Constitution of India permits a reasonable classification in legislations so that the ―equals may be
treated equally & unequal may be treated differently‖
The Article 14 allows classification but prohibits class legislation, it means on valid ground classification
can be made but class legislation is the law that provides privilege to specific class of persons without
any justifiable ground, so tosum up we can say if privilages or rights are provided to persons on
reasonable grounds by any law we can say its classification but if privilages are granted in unjustified
manner without any lawful gorund to some persons, it will mean class legislation, Constitution allows
classification but prohibits class legislation. This rule was established in the case Ram Kishan Dalmiyan
Vs Justice Tendulkar.
(matlab agar uchit reasons ke chalte different treatment diya to wo classification hai aur bina uchit
karan ke different treatment diya to wo class legislation hai)
For example we can not provide the benefit of Labour Laws to a Company Secretary who is working as a
Practicing Company Secretary, so we must make reasonable classification in each law so as to achive
some specific objectives.
Classification in terms of applicability of law is essential so that all equals may be treated equally for
example all 3 years child must start their education from Nursery and not directly from class 12.
According to this doctrine a classification may be made by the parliament for the purpose of achieving
specific objective classification can be made between the people to whom the protection should be
granted & to whom protection should not be granted.
The classification to be valid must satisfy the following 2 conditions.

1) It must be made on intelligible ground (intelligible differentia) & with specific reason.
2) Classification should result in the achievement of the objectives.
For example, in the Contract Act, 1872 a classification has been made between the persons who are
major & minor & a special protection has been provided to the minors. The object is to protect the

minors, so when the reasaoble classification is made the minors are protected. The contract act makes a
classification which is reasonable.
In the case of P. Rajandran v. State of Mysore, a provision for district-wise distribution of seats in State
Medical colleges on the basis of population of a district to the population of the State was held to be
void.
The Supreme Court in State of Bihar v. Bihar State ‘Plus-2’ lectures Associations, held that now it is well settled and
cannot be disputed that Article 14 of the Constitution guarantees equality before the law and gives equal protection
of laws. It prohibits the state from denying persons or class of persons equal treatment; provided they are equals
and are similarly situated. It however, does not forbid classification. In other words, what Article 14 prohibits is
discrimination and not classification if otherwise such classification is legal, valid and reasonable.
Classification may be made on the following ground:

1) Geographical classification
Some privileges & exemptions, can be granted to people who stay in a tribal area or any backward
region case laws. M.P. Oil extraction V/s. State of M.P.
2) Classification in favour of a state

The term person in article 14 does not include state therefore a classification that treats the state
different from the persons will be a valid classification.
SagirAhenmad VS. State of U.P

In this case it was decided that a monopoly created by state in its favor with reference to the motor
transport business will not violate the provisions of article 14.
3) Special courts & special procedures

Some special courts are formed by legislature for some special offences e.g. TADA COURT. These
Courts are created under special laws for special objects.
4) Single Personal Law

Case Law: CharanjitLalChowdhary V/s. Union of India.
SINGLE PERSON LAW
CASE LAW
Charanjit Lal Chowdhary V/s. Union of India. In this case it was held that the law will be valid even if
it applies to a single individual if that individual is treated as a different class.
The petitioner was CLC as shareholder of Sholapur Spinning & Weaving Company Ltd. The Company
SSWCL was functioning well but later on, on account of mismanagement of the funds by the directors,
the Company was about to be closed down. Later on, the Government thought if the Company will stop
functioning the production of essential commodity will be affected & large amount of unemployment will
be caused.
The Government decided to take over & control the management of the Company & for this purpose the
Government passed an act Sholapur Spinning & Weaving Company Emergency Provisions Act, 1950. The
shareholders were denied the voting rights & also the right to attend meetings of the Company. The
Petitioner contended that he was not given equal protection of laws if he compares himself with the
shareholders of other Companies.
The Supreme Court held that the law will be valid even if it applies to a single individual in some special
circumstances, if single individual is treated as a class himself (i.e. the shareholders of Solapur Spinning
and Weaving Company)
To Conclude we can say Article 14 allows classification but it does not allow class legislations, i.e in same
law on reasonable grounds classification can be made i.e unequals my be treated differently but for each
class of persons separate laws can not be made for providing special benefits or provilages on
unreasonable grounds.
In the case of RK Garg Vs Union of India, the Government made a law called as Special Bearer Bonds
(Immunities and Exemptions) Act, 1981, which gave option to all black money holders to invest their
black money in the Special Bonds without any question being asked, this law was challenged as it
discriminated and affected the honest tax payers and supported the black money holders, the Supreme
Court decieded that it is a reasonable classification as it had the objective of bringing the black money in
to the Economy.
In the case of UP Suger Corporation Limited Vs Sant Raj Singh, it was decided that classification also
may be made on the basis of professional qualification for example the persons with higher qualification
can be given better remuneration. It does not affect article 14.
Que: 'A' a state in the Union of India made provisions for district-wise distribution of seats in state
medical colleges on the basis of population of a district to the population of the state. Decide the
validity of this classification with the help of relevant case law.
Equality is a comparative concept. A person is treated unequally only if that person is treated worse than
others, and those others (the comparison group) must be those who are ‗similarly situated‘ to the
complainant. (Glanrock Estate (P) Ltd. v. State of T N.
Legislative classification
The Supreme Court in a number of cases has supported the view that Article 14 does not rule out
classification for purposes of legislation. Article 14 does not forbid classification or differentiation which
rests upon reasonable grounds of distinction (it means law can make a reasonable classification)
ARTICLE 15
PROHIBITION OF DISCRIMINATION ON GROUNDS OF RELIGION ETC.
As per Article 15(1) there is a complete Prohibition of discrimination on the grounds of Religion, race,
caste, sex place of birth.
Article 15(2) lays down that no citizen shall be stopped from entering in to shops, hotels, places of public
entertainment on the ground of Religion, race, caste, sex place of birth.
Article 15(3) the State can make special provision for women and children.
Article 15(4) permits the State to make special provision for the advancement of –
(a) Socially and educationally backward classes of citizens;
(b) Scheduled casts; and
(c) Scheduled tribes.
Article 15(5) permits the State to make special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in relation
to their admission to educational institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions.
Further, Article 15(6) provides that nothing in this article (article 15) or relating to freedom of trade in
article 19 or article 29, shall stop the State from making, –
(a) any special provision for the advancement of any economically weaker sections of citizens other than
the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any economically weaker sections of citizens other than
the classes mentioned in clauses (4) and (5) if provisions relate to their admission to educational
institutions including private educational institutions, whether aided or unaided by the State, other than
the minority educational institutions referred to in clause (1) of article 30, which in the case of
reservation would be in addition to the existing reservations and subject to a maximum of ten per cent.
of the total seats in each category.
Explanation. – For the purposes of Article 15 and Article 16, ―economically weaker sections‖ shall be
such as may be notified by the State from time to time on the basis of family income and other
indicators of economic disadvantage.
ARTICLE 16
EQUALITY OF OPPORTUNITY IN MATTERS OF PUBLIC EMPLOYMENT
SARKARI NAUKARI MAIN SAB KO BARABARI SE MAUKA MILEGA
Article 16(1) guarantees to all citizens equality of opportunity in matters relating to employment or
appointment of office under the State.

Article 16(2) prohibits discrimination against a citizen on the grounds of religion, race, caste, sex,
descent, place of birth or residence.
Article 16(3) states that there should be equality or equal opportunity should be provided by the state in
the matters of public employment.
Exceptions to the general rule:

1) Parliament can make law related to reservations of job for the people residing in any territory or in
any backward part of the country.
2) Reservations can be made for upliftment of any backward class.
3) Reservations can be made in respect of promotions.
4) If a law states that particular religious office shall be held by person belonging to the specific
religion then that law shall not be invalid.
5) Parliament can also make laws that particular vacancy in any state will be filled by appointing a
person from the same state.
6) If the reserved vacancies are not filled up in any year, then such vacancies can be filled in succeeding
year and when such vacancies are carry forwarded they shall not be the part of overall limit on
reservation of 50%. (agar reserved class ke vacany nai bhrti to use agle sal bhara jaega aur yeh
unfilled vacancies ko alag treat kiya jaega aur 50% ki limit main yeh pichle sal vali vacancies nai
aayengi)
7) Apart from the maximum reservation limit of 50% reservations can be made up to 10% in favor of
people belonging to economically weaker sections.
ARTICLE 17
ABOLITION OF UNTOUCHABILITY
1. Now there is a complete prohibition of untouchability & untouchability is punished.
2. Untouchability is punishable up to 3 months.
Insitigation to social boycott is not untouchability – Davarajiah Vs Padamanna
In 1955 Parliament enacted the Untouchability (Offences) Act 1955. In 1976, the Act was amended and renamed as
the “Protection of Civil Rights Act, 1955” making changes in the existing law namely, all offences to be treated as
non-compoundable and offences punishable upto three months to be tried summarily; punishment of offences
enhanced; preaching of untouchability or its justification made an offence; a machinery envisaged for better
administration and enforcement of its provisions
ARTICLE 18
ABOLITION OF TITLES
Now no one can use titles such as Raja, Maharaj, Zamindar etc.
Article 18 is a prohibition rather than a fundamental right.
An Indian citizen shall not accept any title from a foreign state without approval of the president.
State can grant only academic or military titles.
National Awards do not violate article 18.
British Government used to confer titles upon persons who showed special allegiance to them. Many persons were
made Sir, Raj Bahadur, Rai Saheb, Knight, etc. These titles had the effect of creating a class of certain persons which
was regarded superior to others and thus had the effect of perpetuating inequality. To do away with that practice,
now Article 18 provides as under:
(i) No title, not being a military or academic distinction, shall be conferred by the State.
(ii) No citizen of India shall accept any title from any foreign State.
(iii) No person, who is not a citizen of India shall, while he holds any office or trust under the
State, accept without the consent of the President, any title from any foreign State.
(iv) No person, holding any office of profit or trust under State shall without the consent of the
President, accept any present, emolument or office of any kind from or under a foreign State
ARTICLE 19
RIGHTS RELATING TO FREEDOM
It is the most important Fundamental right granted to the citizen by the constitution. This is divided into
6 parts:

FREEDOM OF SPEECH & EXPRESSION 19(1) (a)
FREEDOM OF ASSEMBLY 19 (1) (b)
FREEDOM OF ASSOCIATIONS 19 (1) (c)
FREEDOM OF MOVEMENT 19 (1) (d)
FREEDOM OF RESIDENCE 19 (1) (e)
FREEDOM TO TRADE & OCCUPATIONARTICLE 19 (1) (g)
FREEDOM OF SPEECH & EXPRESSION 19(1)(a)

This freedom means a right to express opinions and ideas freely through words (written or spoken), signs,
prints, pictures etc.
This freedom is divided into following 2 parts:
b) Expression of an opinion by any individual,
c) Freedom given to media to publish the opinions of any individual.
CASE LAW
a) Cricket Association of Bengal V/s. Ministry of Information & Broadcasting.
The SUPREME COURT held that freedom of speech & expression includes freedom to communicate
through any media i.e. print, electronic & audio-visual.
b) Benet Coleman V/s. Union of India.

In this case law the Newsprint Control Order which fixed the maximum number of pages in the
newspaper (10 pages) with an object to stop the monopoly of big news paper & to grow the small
newspapers was declared as unconstitutional by the Supreme Court as it an unreasonable restriction
on the freedom of Press.
However it shall be remembered that the freedom of press may also be restricted under article
19(2) - general restriction on article 19
c) Maneka Gandhi V/s. Union of India.

The SUPREME COURT decided that freedom to press is basic nature of freedom of speech &
expression.
d) Hamdard Dawakhana V/s. Union of India.

In this case the SUPREME COURT decided that commercial advertisements do not come under the
purview of freedom of speech & expression; but is covered under freedom of trade & commerce. But
later on in TATA Press Ltd. V/s. MTNL. In this case it was decided that commercial speech in any
form printed, electronic or audio-visual comes under article 19 i.e. freedom of speech & expression.
e) Navin Jindal Vs Union of India

In this case the SUPREME COURT held that flying the national flag is an expression of respect towards
the flag & the country. So this right has been covered under the freedom of speech & expression.
Drammatic Performance is also the part of freedon of speech and expression – K.A Abbas Vs Union of
India.

In the case of TELCO Vs State of Bihar, it was said that company is not a citizen and hence no
fundmental rights are granted to it and the Court will not lift the corporate veil to protect the right
of shareholders but in the case of RC Cooper Vs Union of India (also known as Bank Nationalisation
case) the Supreme Court decided that if any law affects the rights of shareholder as well as Company
then the Courts can provide a relief.
PERMISSIBLE RESTRICTIONS
1) Sovereignty & integrity of India.
2) Security of the state.
3) Friendly relations with foreign states.
4) Public Order (Public peace).
5) Decency or Morality or
6) Contempt of court (Disobedience of court)
7) Defamation or (say something bad about someone)
8) Incitement to an offence.
The restrictions imposed under article 19 (1)(a) shall be subject to following conditions:
1. Restriction to be imposed by a Law.
2. Restriction to be reasoable.
3. Restriction to be imposed for achieving the objects given in article 19.
In case any person is aggrieved by restriction he can approach the courts for claiming of his rights.
On the grounds such as, the objective of restriction, its duration, the urgency behind restriction, the
coditions that were existing at the time of imposing of restrictions are the basic factors that Court
considers to check the reasonableness of restrictions.
The Courts just check the reasobaleness of restrictions and not the law which provides for restrictions. It
has been established that if restrictions are imposed for carrying out the duties given in directive
principles than it amounts to a reasonable restriction. In the American Constitution, it has been said
―due process‖ should be followed for imposing restrictions.
1) FREEDOM OF ASSEMBLY 19(1)(b)

Right of citizens to assemble peacefully & without arms. This right gives the right of public meetings.
The State can restrict this right on the grounds of sovereignty and and integirity of India and public
order. Calling a public meeting and putting views before it by speaking and expressing is the right
under this article.
2) FREEDOM OF ASSOCIATIONS 19(1)(c)

Under this freedom also public meetings can be held and processions can be taken without arms and
also associations can be formed.
Association means meeting of people for a common purpose e.g. charity, Club, Trust, Unions etc.
The freedom of association also includes a right not to form association, however this position was
cleared by Andhra Pradesh High Court in the case of, Sitharamachary Vs Senior Inspector of School,
by stating that a school teacher can not be compelled to beome the member of school teachers
association.
The State can restrict this right on the grounds of sovereignty and and integirity of India, morality
and public order.
In the case of O.K Ghosh Vs Joseph, the Supreme Court said that, the right of forming an association
for achieving a particular object or for running a particular associations in not the part of freedom of
association.
QUE: Explain the freedom of association under the Constitution of India. What reasonable restrictions
have been imposed on this freedom under Article 19 of the Constitution of India ?
3) FREEDOM OF MOVEMENT 19(1)(d)

A right to move freely throughout the territory of India is another right guaranteed under Article
19(1)(d).
Restrictions which can be imposed by state:
1) In the interests of the general public.
2) For the protection of the interests of any scheduled tribe.
A law authorising for externment (kisi ko nikal dena, tadipar kar dena) should be reasonable.
4) FREEDOM OF RESIDENCE 19 (1) (e)

Article 19(1)(e) of the constitution of India guarantees to a citizen a right to reside and settle in any part
of the territory of India. The freedom removes internal barriers on the citizens and they can freely reside
and travel in any part of the country. However the state can put reasonable restriction on the freedom
granted under this article In the interests of the general public or For the protection of the interests of
any scheduled tribe.
In the case of Ebrahim Vs State of Bombay, it was decided that Certain areas may be prohibited for
certain kinds of persons such as prostitutes.
Article 19(1)(f) giving a right to acquire and hold property – Deleted by 44th Amendment to Constitution.
5) FREEDOM TO TRADE & OCCUPATIONARTICLE 19 (1) (g)
Article 19(1)(g) of the Constitution of India gives the individual a freedom to carry on any trade
business & profession.
CASE LAW
In the case of Safdarjung Hospital V/s. K.S. Sethi it was decided that trade includes buying & selling
barter or commerce or any skilled work etc.
 But the term business is wider than the term trade.
 ―What is business & what is not‖ can be decided by applying common sense.
 Business includes trade.
 In the freedom of trade & business, reasonable restrictions can be imposed by the parliament e.g.
1) In some case Govt. has created monopoly for itself,
2) There is a restriction on dealing in narcotic drugs
PROFESSION
Profession means an occupation requiring an intellectual skill & a prescribed education qualification.
There is a freedom that any person may engage himself in any kind of profession.
However the state can impose restrictions in practice of profession on the following grounds:
1) By prescribing educational or technical qualification for practicing any profession, oron carrying of
occupation, trade or business e.g. The Government can make law and stat that in order work as a CS
a person should have membership of ICSI.
2) The Government (state) or corporation owned by state can carryout any trade, occupation or
profession and may restrict the citizens wholly or partially from carrying out any trade profession or
occupation. For example RBI Act, 1934 states that currency note printing activity will be carried out
by the RBI.
3) In the interest of general public also there can be reaosonable restrictions on this freedom.
So state by making a law can impose restrictions on the freedom granted under article 19(1) (g).
MONOPOLY
SARKAR APNE FAVOR MAIN MONOPOLY KAR SAKTI HAI,
PAR WO UNREASONABLE NAI HONI CHAHIYE
The state has been given a right under the constitutional amendment act to create monopoly in its favor.
However, there must be reasonable grounds for creation of monopoly. If monopoly is created on
unreasonable ground then such monopoly will be invalid.
CASE LAW: Chintamana Rao V/s. State of M.P.

 MP Govt. passed Madhya Pradesh Act, As per the Act, during agricultural season no person Could be
employed for bidi manufacturing.

 Due to this no person could employ himself with bidi manufacture even the old man and women and
children could not get employment because it was diffuclt for them to carry agricultural activities.
This caused large scale unemployment. The Supreme Court held that, the monopoly created for
agriculture sector was unreasonable.
In the case of Association of Registration Plates Vs Union of India, it was decided that State is free to
create monopoly in its favour, however the benefit of such monopoly must be in favour of state and not
in faovr of some limited class of persons.
ARTICLE 20
PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES
A) Protection in respect of ex-post facto laws
Ex post facto laws mean the laws which are made after the commitment of any offence. According to
this rule, if a person has committed any wrong act then he should be punished for that act according
to the law of land at that time. If due to any amendment in law, punishment has been increased for
that act it should not be applicable to the person who committed the crime before the amendment.
For example in 1994 I abused Mohan and in 1994 abusing was not offence, In 1996 a law was made
and abusing was made offence so I will not be punished for the abusing which I did in 1994.
Case Law: Kedar Nath V/s. State of West Bengal.

In this case a person was convicted under prevention of corruption Act, 1947. In the year 1949 by an
amendment the punishment for a corruption was increased. It was decided by the court that the
increased imprisonment was not applicable to Kedar Nath.
In the case of Shiv Bahadur Singh Vs State of Vindhya Pradesh it was decided that the protection in
respect of ex post facto laws is available in respect of imprisonments, fine and penalties and not in
respect of procedureal laws.
B) Protection against double jeopardy

According to this rule, no person shall be prosecuted & punished more than once for a single offence.
Case Law: Maqbool Husain V/s. State of Bombay
In this case, a person‘s goods were confiscated by the custom authorities as he was travelling with
undeclared goods. The prosecution was started against him under the Custom Act 1878 and another
prosecution was started against him under FERA Act, 1947. The Supreme Court decided that the
prosecution under FERA Act, was a valid prosecution.
C) Protection against self-incrimination

Article 20(3), according to this rule, no accused shall be compelled to state something which goes
against him. Every person is presumed to be innocent till any contrary is proved & it is the duty of
prosecution to proof the guilty commitment by the accused.
Case Law: In case of M. P. Sharma V/s. Satishchandra, it was decided that right of protection from
self-incrimination will be available to a person if the following conditions are fulfilled:
1) A person must be accused.
2) He is being compelled to give an evidence against himself.
In the case of Selvi Vs State of Karnataka it was decided that, this protection is also available to a
witness who believes that if he states something he will be exposed to criminal proceedings.
ARTICLE 21
PROTECTION OF LIFE & PERSONAL LIBERTY
1) This article of the constitution has received the maximum no. of interpretation.
2) Article 21 states that no person shall be deprived of his life or personal liberty except, according to
the procedure established by law.
CASE LAW (LIFE)

1) Kharak Singh V/s. State of U.P. :

In this case it was decided by the SUPREME COURT that life means something more than animal
existence. It means life with human dignity.
2) Life also means those things which make the life meaningful so the right of couple to adopt a child
also comes under life in Philips Alfred Malvin V/s. Y.J. Gonsalvis.
3) Aruna Shanbaug V/s. Union of India (2011)

In this case it was decided by the court that right to live does not include right not to live.
4) Olga Tellis Vs Bombay Municipal Corporation, in this case it was decided that right to livelihood is
the right of life as no person can live without the means of living, that is the means of livelihood.
5) Unnikrishnan Vs State of Andhra Pradesh, in this case it was decided that life includes education &
now the right of education has been declared as a fundamental right under article 21.
PERSONAL LIBERTY
It means a freedom; it means to live the life according to one‘s own wish.
CASE LAWS
1. A. K. Gopalan V/s. State of Madras:
In this case the SUPREME COURT gave a very narrow & restrictive meaning to personal liberty & it
was held by the SUPREME COURT that personal liberty is limited only to the body of the person.
The SUPREME COURT said that a person can be deprived of his life & personal liberty if following
conditions are satisfied:
a) There must be a law &
b) The restriction should be made according to the procedure given in law.
This decision of SUPREME COURT was criticized later or
2. Maneka Gandhi V/s. Union of India :

1) In this case the judgment given by SUPREME COURT in case of A. K. Gopalan was over ruled.
2) The SUPREME COURT held that a person can be deprived of his personal liberty if the following
conditions are satisfied.
i) There must be law.
ii) According to the procedure established by the law.
iii) The procedure should be fair & reasonable & the principal of natural justice should be
followed.
3. Sathwant Singh Sawani V/s. APO New Delhi

Personal liberty includes right to travel across the world & restriction can be imposed on this
freedom by a procedure est. by the law.
Denial of passport amounts to deprivation of personal liberty.
4. State of Maharashtra Vs Amdhulkar Narain, in this case it was decided that the right to live the life
with privacy when a person likes to live in privacy is a fundamental right.
ARTICLE 21A
RIGHT TO EDUCATION
The state shall provide free & compulsory education to the children of the age of 6 to 14 years.
In the case of State of Tamil Nadu v. K. Shyam Sunder the Court decided that right of a child should not
be restricted only to free and compulsory education, but should be extended to have quality education
without any discrimination on the ground of their economic, social and cultural background.
In Fahima Shareen RK v. State of Kerala the High Court of Kerala on September 19, 2019 said that
‗Right to Internet Access‘ as a fundamental right.
The Court declared that the right to have access to Internet becomes the part of right to education as
well as right to privacy under Article 21 of the Constitution of India.
ARTICLE 22
PROTECTION AGAINST ARREST & DETENTION
AGAR TUM HONE WALE HO ARREST,
TO ARTICLE 22 KAREGA TUMHE PROTECT!!
Article 22 grants protection to every citizen from arrest & detention. However the few persons are
excluded from this protection.
1) Alien enemies.
2) The person who are arrested or detained under preventive detention.
3) To other person.
The following protections will be provided by the constitution against arrest & detention:
1) Inform the person the ground on which he is being arrested or detained.
2) Such person shall have a right to consult and to be defended by a legal practitioner (lawyer).
3) No person can be detained in the police custody for more than 24 hours unless he has been produced
in front of a magistrate.
PREVENTIVE DETENTION
AGAR AAP KOI OFFENCE KARNE WALE HAI,

TO AAP KO OFFENCE SE ROKNE KE LIYE, DETAIN KIYA JATA HAI
It means detaining a person without approaching the court in police custody. The objective of
preventive detention is not to punish a person but preventing a person from committing any unlawful
activity. A person is kept under preventive detention because the police authorities are of the opinion
that if such person is left free he can commit a crime. Parliament & state legislatures can make a law on
preventive detention for the security of the Govt. / State.
SAFEGUARD AGAINST PREVENTIVE DETENTION

a) Under preventive detention a person cannot be detained for a period of not more than 3 months.
If a person has to be detained for more than 3 months an advisory board should be made of the H.C.
judges & if before the expiration of 3 months if the advisory board is of the opinion that the period of
preventive detention should be increased, than such period of 3 months can be increased, however the
maximum period of preventive detention has been reduced to a period of 2 months by the 44th
amendment Act to the constitution, nut such changes are not notified till now so we will consider it as 3
months only.
b) The person who has been detained shall be communicated with the reasons of detention & give him
the earliest opportunity of making a representation / being heard.
Que: State the justifiable grounds for Parliament and State Legislature to pass law of preventive detention and
briefly explain safeguards against such preventive detention laws.
ARTICLE 23 & 24
RIGHT AGAINST EXPLOITATION
Article 23 & 24 provides an individual a protection from exploitation. It means if a person is being
exploited in any manner he gets constitutional remedies.
1) Prohibition of traffic in human beings & forced labour

i) Traffic in human beings means buying & selling of human being like animals / goods. The
constitution puts a complete ban on trafficking in human beings.
ii) No person shall be compelled to work without his will or without wages & traditional system of
beggary has been completely prohibited.
2) Prohibition of employment of children

A child below the age of 14 shall not be employed to work in any factory or mines. Legislature must
make laws to protect the children and labours. Refer to the employment of Children Act, Factories
Act, etc.
ARTICLE 25
RIGHT TO FREEDOM OF RELIGION
1) Right to practice or profess any religion
An individual has a complete freedom to practice or support any religion of his choice.
2) Freedom of Conscience
Every person has a right to listen to his inner sense & to follow any religion of his choice.
STATE CAN PUT A RESTRICTION ON FREEDOM OF RELIGION ON FOLLOWING GROUNDS

a) Public order or morality & health.
b) Other provision of part 3 of the constitution (reasonable restrictions).
c) On ground of any financial, political / economic activity related with religious practice.
d) On ground of social welfare and reforms
In the case of State of Karnataka Vs Pravin Bhai Togadiya, it was decided that the State does not have
its own religion and it is the duty of the state to protectrelegion of all.
In case of Ratilal Vs. State of Bombay, it was decided that the freedom of religion is not available only
to the persons residing in India but is also available for aliens or other individuals or institutions.
In the case of Bijoe Emmanuel Vs. State of Kerla, It was decided that no person can be compelled to
sing national anthem if he has a genuine or religious objection.
The term “hindu” includes person professing the sikh, jain or budddhist. Special rights are accorded to
the Sikhs to wear ―kirpan‖ as a part of professing their religion.
FEATURES OF FREEDOM OF RELIGION

1) Concept of Religion
a) There is no perfect definition of religion.
b) It is just a belief on some particular religion or God.
c) There are different kinds of religions existing in India.
2) Freedom to manage religious affairs – Article 26

a) Constitution grants a freedom to all the religions to manage their religious affairs.
b) Every religion has a right to maintain religious institutions & for that purpose to acquire movable
or immovable property. Ex - Sai Baba Trust.
3) Freedom as to payment of taxes/donations for promotion of any religion – Article 27

No person can be stopped from making payment towards religious trusts and religious functions
4) Freedom as to attendance in religious instruction or taking part in worship conducted in any

educational institution –Article 28
a) No person can be compelled to attend any religious instruction or any religious worship in any
educational institution or at any particular place.
b) No religious instructions shall be provide in the institutions maintained by state.
Collective Rights of Relegious Denomination – Article 26
Word denomination means the persons belonging to a same class. In the case of Dr Subhraminam Swami
Vs State of Tamilnadu, it was decided that that article 26 was formed to protect the rights of the people
belonging to a particular class or section.
Relegious denomination is not a citizen, menas article 26 grants right to class of people or to a religious
denomination.
The rights such as maintaining institutions of religious and charitable nature, freedom to manage affairs
relating to religion, to own and acquire immoveable property, and to manage the property are the rights
granted under article 26 to religious denomination.
ARTICLE 29
CULTURAL & EDUCATIONAL RIGHTS [RIGHTS OF MINORITY]
Who are minorities?
CASE LAW
D.A.V. College V/s. State of Punjab :
1) The SUPREME COURT held that minorities should be determined on the basis of area of operation of any
particular law.
2) The population of a state should be considered when the law is made for any state.
When law for whole of India is made then the population of whole of the country should be
considered. E.g. when the reservations are given to minorities for central govt. jobs, population of
whole of India should be considered in determining the minorities.
3) Any community which is less than 50% of the population of state should be treated as minority.
RIGHTS OF MINORITY
 Protection of interest of Minority.
 Right of minorities to establish & administer educational institutions of their own choice.
1) Protection of interest of Minority :
a) All minorities whether based on language or religion shall have a right to preserve their culture.
e.g. A resident of Bihar can do chhatt Pooja in Mumbai. A resident of Delhi can speak Hindi when
he stays in Chennai.
b) No citizen can be denied admission in any educational institution receiving help from the Govt.
on basis of religion, race, caste, & sex.
The only exception to this rule is in case of admissions of persons from socially or educationally
backward classes.
2) All the minorities weather religious / linguistic shall have a right to establish & administer
educational institution of their own choice.
E.g. medical, language, engineering college, schools.
The maladministration can be checked by state – but the right to manage the institution should not
be transferred to any outsider.
The Govt. while granting help to any educational institution cannot make a discrimination on the
ground that any particular educational institute is managed by some particular minority.
The help given by the Govt. should be granted unconditionally.
In the case of Delhi Abhibhvak Mahasangh Vs Union of India, it was decided that the Constitution doest
not permit minorities to involve in commercialisation of education under the protection of Constitution.
For getting protection of minority rights minority institutions are calegorised in 3 categories:
(i) Institution which neither take aid nor recognition from the State.
(ii) Institution that take aid from the State.
(iii) Institutions which take recognition but not aid.
While the institutions of class (i) cannot be subjected to any regulations made by the Government,
however they will be subject to general law of the land such as labour, contract or tax laws, the
institutions in classes (ii) and (iii) can be subjected to regulations relating to the academic standards and
to the better administration of the institution, in the interest of that institution itself.
The right conferred on religious and linguistic minorities to adminster educational institutions of their choice, though
couched in absolute terms, is not free from regulation. Delhi High Court in Delhi Abibhavak Mahasangh v. U.O.I. and
others; held that Article 30 of the Constitution does not permit, minorities to indulge in commercialisation of
education in the garb of constitutional protection.
he Constitution (44th Amendment Act) has introduced new sub-clause (1A) which provides that wherever
compulsory acquisition of any property of an educational institution established and administered by a minority is
provided under any law, the State shall ensure that the amout fixed by or determined under any such law is such as
would not restrict or abrogate the right guaranteed under this Article
ARTICLE 31A, 31B & 31C

RELATING TO PROPERTY
Right to property is not a fundamental right, however article 300A of Constitution of India states that
―No person shall be deprived of property except as per the procedure established by Law‖
The Article 31A provides that the state may make laws in relation to the following matters:
1) The state may acquire or modify any right in a particular property.
2) The state can take over the management of any company or properties of any company.
3) There can be amalgamations or mergers of 2 municipal corporations.
4) The state can cancel or modify any right of managing agent or manager or secretary of any trust or
any municipal corporations.
5) The state can extinguish or modify lease or licenses or right of any person on a particular property
which contains oil, minerals etc.

However it shall be remembered that if state legislature has made any law then the law made by state
legislature will prevail and rights under article 31A will not be exercised and if, such law has received
consent of the president and if any law provides for acquisition or any building or structure on land then
such land will be acquired by paying a compensation which shall not be less then the market value of the
land.
As per Article 31C, The state can also make laws for ownership and control of minral resources so that
they can be used in best possible manner for the benefit of society and for making sure that the
economic system does not result in concentration of wealth which affects common people.
Validation of certain Acts and Regulations : Article 31B protects certain laws against attack on the ground of
violation of any fundamental rights. The laws so protected are specified in the Ninth Schedule to the Constitution.
These laws also relate mainly to land reforms.
ARTICLE 32 OF CONSTITUTION OF INDIA, PART III
RIGHT TO CONSTITUTIONAL REMEDIES
AGAR KOI KARTA HAI FUNDAMENTAL RIGHTS KO VIOLATE,
SUPREME COURT JAKAR KARO US LALLU KO TARGET
1) Constitutional Remedies means the remedies provided by the constitution.
2) It is a well-established principle of law that where there is a right there is a remedy & if, no remedy
is provided for enforcement of a right the right is of no use.
3) So for the enforcement of fundamental rights, the right of constitutional remedies has been included
in the constitution.
4) If a person is stopped from making any use of Fundamental Rights., such person has got a
constitutional remedy, i.e. to approach the apex court of the nation.
5) Justice Patanjli Shastri stated that the Supreme Court cannot refuse to entertain a case where the
plaintiff is seeking a protection against infringement of Fundamental Rights. In discharging the duties
assigned to it, this Court has to play the role of ‘sentinel on the qui vive’ (State of Madras v. V.G. Row, and it
must always regard it as its solemn duty to protect the said fundamental rights ‘zealously and vigilantly’.
6) In the case of Romila Thapar Vs Union of India, it was decided that Article 32 empowers the
Supreme Court to issue orders which enforce the fundamental rights.
Case Law:
MenakaGandhi V/s. Union of India
Kharak Singh V/s. State of U.P.
A. K. Gopalan V/s. State of Madras.
(here we can give reference to all the case laws that we have covered in articles 14-32, where rights
of people have been protected
7) The SUPREME COURT grants a protection of F.R. by way of a written order like
a) Habeas Corpus,
b) Quo warrants,
c) Certiorari,
d) Mandamus,
e) Prohibition.
From the above discussion on Article 32 it can be concluded that if the Fundamental Rights are violated /
restricted the aggrieved party may approach to the Apex Court of the country.
In discharging the duties assigned to it, this Court has to play the role of ‘sentinel on the qui vive’ (State of Madras v.
V.G. Row) and it must always regard it as its solemn duty to protect the said fundamental rights ‘zealously and
vigilantly’.
In the case of Nithya Anand Raghvan Vs State of NCT Delhi, it was decided that the writ of habeas
corpus can not be used for implementing the directions given by the Foreign Courts given against the
person in jurisdiction of foreign court and to convert the jurisdiction of Foreign Court to the Supreme
Court.
Assam Sanmilata Mahasangha v. Union of India, the Court held that article 32 which has been described as the ‘heart
and soul’ of the Constitution guarantees the right to move to the Supreme Court for enforcement of all or any of the
fundamental rights conferred by Part III of the Constitution. This article is therefore, itself a fundamental right.

The right guaranteed by Article 32 shall not be suspended except as provided in the Constitution. Constitution does
not contemplate such suspension except by way of President’s order under Article 359 when a proclamation of
Emergency is in force.
The right given under article 32 shall not be suspended in any case except in the case of proclamation of
emergency by the President of India.
The power of Supreme Court to issue directions may also be assigned to other Courts by the Parliament
without affecting the powers of Supreme Court.
ARTICLES 33, 34 and 35 SUPPLEMENTARY PROVISIONS
Article 33 authorises Parliament to restrict the application of fundamental rights in relation to members
of armed forces, para-military forces, police forces and similar forces.
Article 34 is primarily concerned with granting protection by law in respect of acts done during operation
of martial law. Constitution does not have provision of martial law.
Parliament may by law indemnify any person in the service of the Union or of State or any other person,
for an act done during martial law.
Article 35 provide that wherever Parliament is empowered to make a law restricting a fundamental right
Parliament alone can do so, (and not the state legislature).
AMENDABILITY OF FUNDAMENTAL RIGHTS
FUNDAMENAL RIGHTS KO AMEND KARO BUT,
BASIC STRUCTURE MAIN KADI MAT KARO
Many times a question has been raised in SUPREME COURT that the F.R. given in Part III of the
constitution are amendable or not.
CASE LAWS
1) Shankri Prasad V/s. Union of India.
In this case the first amendment made to the F.R. was challenged. In this case the SUPREME COURT
decided that the power to make an amendment in the F.R. was given in Article 368 of the
Constitution of India & the parliament was empowered to make an amendment in the constitution.
2) The same judgment was given by the SUPREME COURT in case of Sajjan Singh V/s. State of
Rajasthan.
3) I.C. Golakhnath V/s. State of Punjab.

In this case the SUPREME COURT held that the parliament by passing a constitutional Amendment Act
can amend any part of constitution as well as F.R. but the amendment shall not take away the rights
of the people.
To cancel the effect of GolakNath‘s case, the parliament passed 24th Amendment Act, 1971,
according to which the power was given to parliament to make amendments in F.R. which can take
away rights of the people.
24th Amendment was challenged in the court in KeshavanandBharti V/s. State of Kerala.
The SUPREME COURT held that the parliament can make any amendment to F.R. but cannot amend or
alter the basic structure of the constitution.
Indira Gandhi V/s. Raj Narain :

In this case the Allahabad H.C. dismissed the election of Indira Gandhi on ground of corrupt practices
in meanwhile parliament passed 39th amendment Act to the constitution according to which the
power of SUPREME COURT to interfere in the elections of Prime Minister‘s was withdrawn.
In the same case, the SUPREME COURT held that the elections are related with basic structure of the
constitution & hence they cannot be amended by the parliament.
The parliament can make any amendment to constitution as well as F.R. but basic structure of
constitution cannot be amended.

To neutralize the effect of Supreme Court decision the parliament passed 42nd Amendment Act to the
Constitution of India, by which the power of Court to interrupt in any amendment made by
parliament to the constitution after or before the 42nd amendment was withdrawn.
In the case of Minerva Mills vs. Union of India, the Supreme Court stated that the 42nd amendment
relates to the basic structure of Constitution of India and hence it‘s unconstitutional.
In the case of L. Chandra Kumar v. Union of India the Supreme Court decided that power of judicial
review is an integral and essential feature of the Constitution.
In GVK industries v. The Income Tax Officer the Supreme Court decided that Under our
Constitution, while some features are capable of being amended by Parliament, as per the amending
power granted by Article 368, the essential features - the basic structure - of the Constitution is
beyond such powers of Parliament.
DIRECTIVE PRINCIPLES
The Constitution guarantees two kinds of F.R.
1) It is contained in Part III of the Constitution & can be enforced in court of Law; these rights are
known as F.R.
2) The second kind of F.R.s is contained in part IV of the Constitution of India & these cannot be
enforced in court of law. These rights are known as Directive Principles.
a) Fundamental Rights are available to citizens of the country.
b) But Directive Principles are available to state.
c) Fundamental Rights provide various privileges to the citizens of the country.
d) Directive Principle guides the state in management & administration of affairs of the state.
e) If any law restricts or limits Fundamental Rights it will become invalid.
f) If any law is against the Directive Principle it is not declared as invalid.
g) The courts are not competent to compel the state to carry out any D.P. or make any law for
carrying out D.P.
h) The courts are competent to compel the Govt. to carry out the F.R.
i) The directive principles of state policy have to conform to and run as subsidiary to Fundamental
rights.
DIRECTIVE PRINCIPLES
1) State to provide social welfare.
2) State to provide protection to its people.
3) State must promote education. State to promote & build infrastructure.
4) State should protect monuments & place of national importance.
5) State should protect environment, forest & wildlife.
6) State should make the policy that treats men & women equally.
ARTICLE 51
FUNDAMENTAL DUTIES (42ND AMENDMENT 1971)
When the Constitution has provided certain rights to citizens of the country, the citizens also have some
duties towards the nation & those duties are contained in Article 51A of the Constitution of India of
Fundamental Rights.
1) To protect the public property & control the violence.
2) To protect sovereignty, unity & integrity of India.
3) To abide by Constitution & respect its ideals & institutions, the National Flag & the Flag & National
Anthem.
4) To cherish the ideas which motivated or inspired our national struggle for freedom.
5) To promote harmony & the spirit of command brotherhood amongst the people of India.
6) To develop the scientific temper, humanism & the spirit of inquiry & reform.
7) To protect & improve the national environment. Including forest, lakes, rivers & wild life & to have
compassion for living creature.
8) To value & preserve rich heritage of our composite culture.
9) To defend the country & render national service when called upon to do so.
10) To provide opportunities for education to one‘s child, as the case may be, ward between the age of 6
to 14 years.
11) To strive towards excellence in all spheres of individual & collective activity.
ORDINANCE MAKING POWERS
PRESIDENT: Article 53
President is the head of the republic,
He has the supreme powers of the country he also exercises the executive powers of the Central Govt.:
The powers which can neither be exercised by Govt. nor by judiciary is known as executive power.
Power to appoint Prime Minister, Chief Justice of the Supreme Court.
EXECUTIVE POWERS
(i)Administrative power, i.e., the execution of the laws and the administration of the departments of Government.
(ii) Military power, i.e., the command of the armed forces and the conduct of war.
(iii) Legislative power, i.e., the summoning; prorogation, etc. of the legislature.
(iv) Judicial power, i.e., granting of pardons, reprieves etc. to persons convicted of crime. These powers vest in the
President under each of these heads, subject to the limitations made under the
ORDINANCE MAKING POWER
 Normally the president exercises the power to make ordinance on advice of his council of
ministers.
 The president can exercise his ordinance making power only when both the houses of the
parliament are not in session & there exist an emergency to pass the law.
 The president cannot be compelled to make an ordinance.
 The ordinance passed by the president must be put & approved in the next session of the
Parliament.
 If within 6 weeks from the date of start of parliament session, if the ordinance is not
approved by the Parliament, the ordinance becomes invalid.
 6 weeks will be counted from later date if the houses of Parliament start a session on
different dates.
CASE LAW
Gurudev Dutt V/s. State of Maharashtra.
The SUPREME COURT decided that the ordinance passed by the president will stand on the same footing
as the law passed by the parliament.
POWERS OF GOVERNER
 Governor is head of the executive power of the state.
 Governor appoints the Chief Minister of the state.
EXECUTIVE POWER
ORDINANCE MAKING POWERS OF THE GOVERNOR

If the governor wants to pass any ordinance related to state law then he has the same powers as the
president enjoys for whole of India, (the Governor will exercise the power on the advice of council of
ministers and when house of legislature is not in session and he can not be compelled for making the
law, If within 6 weeks from the date of start of parliament session, if the ordinance is not approved by
the State Legislature, the ordinance becomes invalid, 6 weeks will be counted from later date if the
houses of Legislature, start a session on different dates) but in the following cases the Governor cannot
pass an ordinance without instructions of the President.
a) An ordinance which requires prior permission of President as provided in Constitution of India.
b) Where it is necessary to take permission of the president according to the governor.
c) Where the State legislature deems it necessary to take the assent of President before approving the
ordinance.
POWERS OF THE UNION & STATE
The distribution of between union & state govt. is given under various lists contained in the constitution
these lists are:
1) STATE LIST
In the state lists the powers are given to the state legislature to make laws. E.g. Maharashtra Stamp
Duty Act, Matters related to Land Registration, matters related to VAT & Sales Tax.
2) UNION LIST
In the matters contained in the union lists the power is given to the Parliament to make the laws.
e.g. Income Tax Act, Wealth Tax Act, Limited Liability Partnership Act, Contract Act, Companies Act,
Sale of Goods Act, etc.
3) CONCURRENT LIST
The matters given in concurrent list both the State Legislature and Parliament, can make the laws.
E.g. matters related to security & Defense.
POWERS OF THE PARLIAMENT TO MAKE LAWS ON STATE LIST

In some circumstances the parliament can pass laws on the matters given in the state list such
circumstances are discussed hereunder.
1) IN THE MATTERS OF NATIONAL INTEREST
The Parliament by passing a resolution by 2/3rd majority can make law for whole of the country or for
any particular state.
National interest can vary in different circumstances, it can be related to :
a) Security of the state,
b) Inflation,
c) Deflation,
d) For protecting resources of the state,
e) To control riots.
NOTE:-
The law passed by Parliament for the state will remain valid for a period of one year. For extending
the period a fresh resolution will be required to be passed (with 2/3rd majority).

2) DURING PROCLAMATION OF THE EMERGENCY :
a) During the emergency the parliament shall have the powers to make laws for whole of India or
any territory of India with respect to all powers given in state list.
b) These laws passed by the parliament will be valid for 6 months.
c) If the president is satisfied that there is an emergency related to security of the country or any
part of the country or chances of any war or some financial emergency the President can declare
emergency on the recommendation of Parliament. e.g. emergency declared by Indira Gandhi.
3) BREAKDOWN OF CONSTITUTIONAL MACHINERY IN THE STATE :

a) When the President is satisfied on the report of governor of the state that the constitutional
machinery in the state has collapsed, the President can take the charge of the state or authorize
the governor to take the charge of the state.
b) The power to control the state will remain with President / Governor for a period of 6 months.
However, this period can be renewed for another period of 6 months by passing a fresh order.
c) Order by President, should be passed for a further period of 6 month subject to overall period of
3 years.
4) ON THE REQUEST OF 2 OR MORE STATE WHEN TWO OR MORE STATES:When two or more states
request the Parliament to make any law for them, the Parliament can make laws for such state. But
such request should be approved by the Legislature of both the states.
5) Parliament can also make laws on the matters contained in state list for:
a) Enforcing the agreements with foreign countries.

b) For giving effect to any decision taken in international conferences & associations
WRIT JURISDICTION OF High Courts (CONSTITUTIONAL REMEDIES)
TYPES OF WRITS
JAB AAP KE FUNDAMENTAL RIGHTS KO PAHUCHTA HAI NIKSAAN,
WRITS KE ZARIYE AAP KO MILTI HAI RELIEF!
Writ means an official order by High Court or Supreme Court for enforcement of Fundamenal Rights.
These writs are issued by Supreme Court under article 32 for the protection of fundamental rights.
Under article 226 High Courts can be approached for the protection of fundamental rights. The remedy
under article 226 is not fundamental right where as the remedy under article 32 is a fundamental right.
In all the below mentioned wits we can directly approach the Supreme Court under aticle 32 but
normally Supreme Court before accepting the writ asks the parties, the reasons as to why they did not
approach High Court first. So it‘s better to approach the High Couts.
HABEAS CORPUS
a) These writs are issued by the c ourts for protection of personal liberty. When any person has been
detained by the authorities, the court questions the authority about the grounds on which such a
person has been detained.
b) If the courts find that the reason for detention is insufficient, the court can issue the writ of habeas
corpus & pass an order for release of the person.
c) Under the Article 32 & 226 of COI, any person can move to the SUPREME COURT / H.C. for issuance of
this writ. If H.C. has rejected the writ an appeal can be made to the SUPREME COURT
Case Law :A. K. Gopalan V/s. State of Madras.
MANDAMUS
a) This writ is issued by High Courts and Supreme Courts.
b) Mandamus means a command / instruction.
c) The writ of Mandamus is issued when and person, authority, court, Government fails to perform the
functions which they are legally bound to perform, but they do not perform.
In these cases, the Court can issue a command/instruction for discharging of the function.
Case Law :State of Maharashtra V/s. M.P. Vashi.
In this case it was decided that the court can direct the officers of the Govt. to carry out the directive
principles given in the C.O.I.

Covered under Article 32 & 226 of Constitution of India. It does not lie against president, Governor or
private persons.
In the case Gujarat State Financial Corporation Vs Lotus Hotel, in this case the GSFC refused to finance
the project of Lotus Hotels after entering in to an agreement, the High Court of Gujarat issued a writ of
Mandamous and asked GSFC to issue funds as promised.
PROHIBITION
a) This writ is issued by High Court and Supreme Courts.
b) It is just opposite to writ of Mandamus.
c) Writ of Mandamus is issued to command on activity or to initiate an action, but writ of prohibition is
issued to restrict or restrain any activity.
d) When an inferior court exercises a jurisdiction which is not legally vested in it, or violates some rules
or laws the superior court can issue writ of prohibition & stop the inferior court from exercising such
jurisdiction.
e) This writ is issued before exercise of judgement by the Lower Courts.
WRIT OF CERTIORARI – It means to be ceritified.

This means setting aside a judgement or decree passed by an inferior court.
Through this writ the High Court or Supreme Court calls for the record of the cases decided by the lower
courts and if they find that lower court has not given the justice properly than decisions of lower courts
can be quashed by the Superior Courts.
This writ is issued in the following cases :
a) When any inferior court has passed a judgment which is in excess of its powers.
b) When there is a material defect in the judgment passed by the inferior court.
c) When any inferior court has passed a judgment which is not vested in it.
d) Where the inferior court has contravened the rule of natural justice.
In all the above mentioned cases, superior court can quash the judgment passed by the inferior court by
issuing writ of certiorari.
In the case of AK Karpik Vs Union of India, the decision of lower Court was quased by the High Court.
WRIT OF QUO WARRANTO

a) It is issued by the courts to check legality of a claim in relation to any public office.
b) Quo Warranto – Means ―by what Authority‖
c) The person who asserts to hold a public office can be asked to give proofs or the grounds on basis of
which he holds the office.
d) This writ is issued when:
 The office is a public importance.
 Office is created by constitution.
 Any person makes a claim to hold that office.
FREEDOM OF TRADE, COMMERCE & INTERCOURSE

1) Travel from one place to another place to do a business is called inter course.
2) Trade & commerce means exchange of goods & services for profit motive.
3) Every citizen of India has been give a right or freedom of trade & comer under Article 301 – 306 of
COI.
4) Later on Article 306 was repealed.
5) Article 301 gives complete freedom to individuals to carry on any kind of business & the parliament
has got a limited power to impose a restriction on freedom of trade, commerce & intercourse.
E.g. at the time of unprecedented increase in prices of onion, the Govt. had put a ban on the exports
of onion.
Article 302, 303, 304, 305 & 307 of COI gives powers to the parliament to put any kind of restrictions on
freedom of trade, commerce & intercourse on reasonable grounds.
The reasonable grounds are as follows :

1) By imposition of taxes on sale or purchase of the goods.
2) In public interest.
3) Taxes on import & export of goods.
4) Taxes on interstate trade.
5) State can create monopoly in its favour.
DELEGATED LEGISLATION
LAW BANANE KO POWER PARLIAMENT,
EXPERT BODIES KO DELEGATE KARTA HAI!
As law making bodies of our country are already overburdened so in some cases the power to make &
regulate the law can be delegated to some other authorities by the Constitution.
Benefits of Delegation:
1) Expertise of the bodies which make the law.
2) Reducing the burden of law making bodies of the country.
There are two types of legislation:
CLASSIFICATION OF SUBORDINATE LEGISLATION

1) Executive Legislation :
This system empowers the executive to make rules and orders which do not require express
confirmation by the legislature. Thus, the rules framed by the Government under the various
Municipal Acts fall under the category, powers are also given to Central State Government by various
laws to make rules and various statutory bodies are also given powers to make reules or regulations
by various laws. Like SEBI exercises powers under SEBI Act, 1992.
2) Judicial Legislation :
Powers are given to various HC‘s to make their own rules in respect with the procedures to be
followed with the court. Such rules have been framed by the High Courts under the Guardians of
Wards Act, Insolvency Act, Succession Act and Companies Act, etc.
3) Municipal Legislation :
Powers are given to various Municipal Corporations to make rules & laws for their area & their
jurisdiction.
4) Autonomous Legislation :
Powers are given to the various autonomous bodies like universities, hospitals, etc. to make their
own rules.
5) Colonial Legislation :
Sometimes a part of the country may be treated as a colony & powers are given to such colonies to
make their own laws & rules.

The principals regarding delegation are based on varios court decision as the Constituion does not
directly mentions about delegation, some principals laid down by the Court with regard to delegation are
as follows:
a) The basic function of legislature is to makw the policy of the law and making the law a binding rule
of conduct. So the Legislature legislature must make policy and it must provide guidance to rule
making bodies for carrying out the declared policy.
b) The legislature makes the policy of the law and through this policy the legislature decides the
matters that can be delegated, and the scope of delegation.
c) If the delegation is made byt no standard o guidance has been provided in respect of delegation ,
than such delegation of the power is invalid.
d) In order to know, whether any guidance or standard has been provided or not by the parlianment, the
preamble pf law (for which delegation is made) must be taken in account.
e) The relevant provisions of law for which delegation is madde must also be considered to know the
standards and guidance of delegation.
f) Delegated legislation may take different forms, viz. conditional legislation, supplementary legislation
subordinate legislation etc., but each form is subject to the one and same rule that delegation made
without indicating intelligible limits of authority is constitutionally incompetent.
Conditional legislation means a law that provides for control or restecitions, however such law will
come in to force only which some of the conditions as specified by the parliament are fulfilled.
RULE OF INTERPRETATION OF CONSTITUTIONAL PROVISIONS

RULE OF PITH AND SUBSTANCE
1) Parliament and State Legislature get the power of making the laws from the lists mentioned in the
Constitution of India i.e. Union List, State List and Concurrent List.
2) It may happen some time, mostly on the matters stated in the Concurrent list that, Parliament as
well as State Legislature both have made laws, and if we look closely then we may find that either
Parliament or State Legislature has exceeded its powers.
3) For example the laws made by the parliament may touch the state subject or vice versa and in this
case such laws will not be invalid only on the goround that it relates to the subject contined in the
other list.
4) According to the rule of pith & substance, the rule which affects the law making power of some other
body will remain valid.
Case Law : D.N. Banerjee V/s. D. N. Mukherjee :
a) Parliament passed industrial dispute act which was applicable to the workers of whole of India but
the municipal corporation raised an objection & said that it has got its own laws for resolving the
dispute between the workers.
b) The Supreme Court held that the law passed by the Parliament will be held to be valid.
In the case of G. Chawla Vs State of Rajasthan, the State Legilature of Rajasthan Passed a Law on on
restriction of use sound amplifiers as per the entry number 6 in state list which relates to health and
sanitation, but this law was challenged on the ground that sound amplifiers come in entry 81 of union list
which relates to post, telegraphs, wireless and other modes of communication, the Supremer Court
decided that the law passed by Rajasthan Legislature is valid as it focuses on public health by restricting
the use of sound amplifiers.
COLOURABLE LEGISLATION
JO NAHI HO SAKTA DIRECTLY,
USE NAI KARO INDIRECTLY
1) It is a rule of interpretation of constitutional provisions.
2) According to this rule, what you cannot do directly the same thing cannot be done indirectly.
3) The laws cannot be violated by adopting an indirect method.
4) The prohibition cannot be given different colours.
5) So if the legislature can not make law on any subject as such subject does not fall within its powers
as per the Union, State or Concurrent list then in this case such legislature can not adopt indirect
methods to make laws on that subject.
6) The legislature can not violate the constitutional prohibition by adopting indirect method.
7) This principle is relevant only on the questions relating to legislature competence (legislature ki law
banane ki powers ke case main hi is doctrine ko use karenge)
Kameshwar Singh V/s. State of Bihar :

The Bihar Land Reforms Act, 1950 provided that the unpaid rents by the tenants shall be given to the
state and one half of the rent shall be paid by the State to the landlord or zamindar as compensation
for recovering of unpaid rents.
According to the provision in the State List under which the above law was passed, no property
should be acquired without payment of compensation.
The question was whether the taking of the whole unpaid rents and then returning half of rent back
to them who were entitled to claim, (i.e., the landlords) is a law which provides for compensatioin.
The Supreme Court found that this was a colourable (indirect) exercise of power of acquisition by the
State legislature, because ―the taking of the whole rent and returning a half means nothing more or
less than taking of without any return and this is naked confiscation, no matter in whatever baseless
form it may be named‖
IMPORTANT POINTS
 In the case of State of Bihar v/s Bihar state plus two lecturers association, it was decided that a
legal and reasonable classification may also be based on educational qualification
 In the case of Ram Kishan Dalmiya v/s Justile Tendulkar, it was decided that article 14 forbids class
legislation but does not forbid classification
 In the case of K.A.Abbas v/s union of India, it was decided that pre-censorship of films is justified
under Article 19(1)(a)
 At present, the term personal liberty extends to variety of matters like write to bail, not to be
handcuffed except under very cases, right to speedy trail, right to free legal aid .
 The judiciary:
In India there are basically 3 kinds of courts –
1. Supreme court
2. High court
3. Sub-ordinate court
Supreme Court is the highest court in the country and is created by constitution
 Prior to independence, the council was the highest appellate authority
 High court and Supreme Court are created under constitution and they enforce fundamental rights
and hence they are state and also they got funding from government
 The high court in (British) India were established under Indian High court Act 1861 (passed by U.K
parliament ).High courts are also created by constitution and some of the High courts in India existed
even before the creation of constitution.
 There are various sub-ordinates civil and criminal courts, these courts are not created by constitution
but under the laws of the state government.
 Besides court there are many other tribunals created under various laws such as security Appellate
tribunals, Income tax appellate Tribunals etc.
 For the trial of cases of corruption, there are special judges appointed under criminal law
amendment Act, 1952.
 In England ,the parliament may delegate all its powers to an outside authority
 In the case of Delhi laws Act 1912, it was decided that essential legislative functions cannot be
delegated
 In USA, all the powers have been separated and there exist a doctrine of separation according to
which, each authority should make laws on the matters that are assigned to it.
LEGISLATIVE FUNCTIONS
BILL – Just Read one or two times!

A Bill is a draft statute which becomes law after it is passed by both the Houses of Parliament and
assented to by the President. All legislative proposals are brought before Parliament in the forms of Bills.
Types of Bills and their Specific Features

(i) Bills may be broadly classified into Government Bills and Private Members‘ Bills depending upon their
initiation in the House by a Minister or a Private Member.
(ii) Content wise, Bills are further classified into:
a) Original Bills which embody new proposals, ideas or policies,
b) Amending Bills which seek to modify, amend or revise existing Acts,
c) Consolidating Bills which seek to consolidate existing law/enactments on a particular subject,
d) Expiring Laws (Continuance) Bills which seek to continue Acts which, otherwise, would expire on
a specified date,
e) Repealing and amending Bill to cleanse the Statute Book,
f) Validating Acts to give validity to certain actions,
g) Bills to replace Ordinances,
h) Money and Financial Bills, and
i) Constitution Amendment Bills.
(iii) However, procedurally, the Bills are classified as
a) Ordinary Bills
b) Money Bills and Financial Bills
c) Ordinance Replacing Bills and
d) Constitution Amendment Bills.
(iv) Money Bills are those Bills which contain only provisions dealing with all or any of the matters
specified in sub-clauses (a) to (f) of clause (1) of article 110 of the Constitution. Financial Bills can be
further classified as Financial Bills Categories A and B. Category A Bills contain provisions dealing
with any of the matters specified in sub-clauses (a) to (f) of clause (1) of article 110 and other
matters and Category B Bills involve expenditure from the Consolidated Fund of India.
Except Money Bills and Financial Bills, Category A, which can be introduced only in the Lok Sabha, a
Bill may originate in either House of Parliament. As per the provisions of article 109 of the
Constitution, the Rajya Sabha has limited powers with respect to Money Bills. A Money Bill after
having been passed by the Lok Sabha, and sent to Rajya Sabha for its recommendations, has to be
returned to Lok Sabha by the Rajya Sabha, with in a period of fourteen days from the date of its
receipt, with or without recommendations.
It is open for the Lok Sabha, to either accept or reject all or any of the recommendations of the
Rajya Sabha. If the Lok Sabha accepts any of the recommendations of the Rajya Sabha, the Money Bill
is deemed to have been passed by both Houses with the amendments recommended by the Rajya
Sabha and accepted by the Lok Sabha.
If the Lok Sabha does not accept any of the recommendations of the Rajya Sabha, the Money Bill is
deemed to have been passed by both Houses in the form in which it was passed by the Lok Sabha
without any of the amendments recommended by the Rajya Sabha. In case a Money Bill is not
returned by the Rajya Sabha to the Lok Sabha within a period of fourteen days from the date of its
receipt, it is deemed to have been passed by both Houses in the form in which it was passed by the
Lok Sabha after the expiry of said period.
(v) Financial Bill Category A can only be introduced in the LokSabha on the recommendation of the
President. However once it has been passed by the LokSabha, it is like an ordinary Bill and there is no
restriction on the powers of the RajyaSabha on such Bills.
(vi) Financial Bill Category B and Ordinary Bills can be introduced in either House of Parliament.
(vii) Ordinance replacing Bills are brought before Parliament to replace an Ordinance, with or without
modifications, promulgated by the President under article 123 of the Constitution of a subject. To

provide continuity to the provisions of the Ordinance, such a Bill has to be passed by the Houses of
Parliament and assented to by the President within six weeks of the reassembly of Parliament.
(viii) As per the procedure laid down in the Constitution, Constitution Amendment Bills can be of three
types viz.,
a) requiring simple majority for their passage in each House;
b) requiring special majority for their passage in each House i.e., a majority of the total
membership of a House and by a majority of not less than two-thirds of the members of that
House present and voting (article 368); and
c) requiring special majority for their passage and ratification by Legislatures of not less than one
half of the States by resolutions to that effect passed by those Legislatures (proviso to clause (2)
of article 368). A Constitution Amendment Bill under article 368 can be introduced in either
House of Parliament and has to be passed by each House by special majority.
(ix) Under provisions of article 108 of the Constitution, if after a Bill passed by one House and
transmitted to the other House:-
a) is rejected by the other House; or
b) the Houses have finally disagreed as to the amendments to be made in the Bill; or
c) more than six months elapse from the date of its receipt by the other House without the Bill
being passed by it, the President may, unless the Bill has elapsed by reason of a dissolution of the
Lok Sabha, summon them to meet in a joint sitting for the purpose of deliberating and voting on
the Bill. If at the joint sitting of the two Houses, the Bill, with such amendments, if any, as are
agreed to in joint sitting, is passed by a majority of the total number of members of both Houses
present and voting, it shall be deemed to have been passed by both Houses. However there is no
provision of joint sittings on a Money Bill or a Constitution Amending Bill.
(x) After the dissolution of Lok Sabha all Bills except the Bills introduced in the Rajya Sabha and pending
therein, lapse.
LAW MAKING PROCESS (HOW A BILL BECOMES AN ACT)

(i) A Bill undergoes three readings in each House of Parliament. The First Reading consists of the
Introduction of a Bill. The Bill is introduced after adoption of a motion for leave to introduce a Bill in
either of the House. With the setting up of the Department-related Parliamentary Standing
Committees, invariably all Bills, barring Ordinance replacing Bills; Bills of innocuous nature and
Money Bills, are referred to the these Committees for examination and report within three months.
The next stage on a Bill i.e., second reading start only after the Committee summits its report on the
Bill to the Houses.
(ii) The Second Reading consists of two stages: the ‗first stage‘ consists of discussion on the principles of
the Bill and its provisions generally on any of the following motions: that the Bill be taken into
consideration; that the Bill be referred to a Select Committee of the RajyaSabha ; that the Bill be
referred to a Joint Committee of the Houses with the concurrence of the LokSabha; that it be
circulated for the purpose of eliciting opinion thereon; and the ‗second stage‘ signifies the clause-by
clause consideration of the Bill as introduced or as reported by the Select/Joint Committee.
Amendments given by members to various clauses are moved at this stage.
(iii) The Third Reading refers to the discussion on the motion that the Bill (or the Bill as amended) be
passed or returned (to the LokSabha, in the case of a Money Bill) wherein the arguments are based
against or in favour of the Bill. After a Bill has been passed by one House, it is sent to the other
House where it goes through the same procedure. However the Bill is not again introduced in the
other House, it is laid on the Table of the other House which constitutes its first reading there.
(iv) After a Bill has been passed by both Houses, it is presented to the President for his assent. The
President can assent or withhold his assent to a Bill or he can return a Bill, other than a Money Bill,
for reconsideration. If the Bill is again passed by the Houses, with or without amendment made by
the President, he shall not withhold assent there from. But, when a Bill amending the Constitution
passed by each House with the requisite majority is presented to the President, he shall give his
assent thereto.

A Bill becomes an Act of Parliament after being passed by both the Houses of Parliament and
assented to by the President.
PARLIAMENTARY COMMITTEES
The parliament has lot of work so it delegates its work to parliamentary committees consisting of
experts.
The Committees work as a link between the parliament, executive and the public.
The need of committees arise due to 2 main reasons:
1. To keep a watch on the Executive
2. To reduce the work volume of the parliament as the parliament cannot scruitinize every matter.
Committees also has expertise.
The Committee considers in-depth analysis of the matter and public is also involved in the decisions of
the committee as the committee also invites suggestions from the public.
Committees prevent misuse of the power by the Executive.
It may, however, be remembered that Parliamentary control in the context of the functioning of the
Committees may mean influence, not direct control; advice, not command; criticism, not obstruction;
scrutiny, not initiative; and accountability, not prior approval. This, in brief, is the object of the
Committee System.
There are 2 types of Committees
AD HOC AND STANDING COMMITTEE

Ad hoc Committees are appointed for a specific purpose and they cease to exist when they finish the task
assigned to them and submit a report. Apart from the Ad Hoc Committees, Each House of Parliament has
Standing Committees like the Business Advisory Committee, the Committee on petitions, the Committee
of Privileges and the Rules Committee, etc.
OTHER COMMITTEE
These committees act as Parliament‘s ‗Watch Dogs‘ over the executive. These are the Committees on
Subordinate Legislation, the Committee on Government Assurances, the Committee on Estimates, the
Committee on Public Accounts and the Committee on Public Undertaking and Departmentally Related
Standing Committees (DRSCs).
IMPORTANT SECTION:-
SR.NO. Articles Heads
1. Article 12 State
2. Article 13(1) Existing law
3. Article 13(2) Future law
4. Article 14 Equality before the law and equal protection of the law
5. Article15 Prohibition of discrimination on ground of religion etc.
6. Article 16 Equality of opportunity in matter of public employment.
7. Article 17 Abolition of untouchability.
8. Article 18 Abolition of titles.
9. Article 19(1)(a) Freedom of speech and expression.
10. Article 19(1)(b) Freedom of assembly.
11. Article 19(1)(c) Freedom of Association.
12. Article 19(1)(d) Freedom of movement.
13. Article 19(1)(e) Freedom of residence.
14. Article 19(1)(g) Freedom to trade and occupation.
15. Article 20(1) Protection against ex-post facto laws.
16. Article 20(2) Protection Against double jeopardy
17. Article 20(3) Protection against self-incrimination.
18. Article 21 Protection of life and personal liberty
19. Article 21A Right to education.
20. Article 22 Safeguards against preventive Detention.
21. Article 23 Prohibition of traffic in human beings and force labour.
22. Article 24 Prohibition of employment of children.
23. Article 25 Right to freedom of Religion.
24. Article 26 Freedom to manage religious affairs.
25. Article 27 Freedom as to payment of tax for promotion of any religion.
26. Article 28 Freedom as to attendance at religious instruction or religious
worship in educational institution.
27. Article 29 Protection of interest of minorities.
28. Article 30 Right of minorities to establish and administer education
institution.
29. Article 31A Saving law providing for acquisition of estate.
30. Article 31B Validation of certain Acts and regulation.
31. Article 31C Saving of laws giving effect to certain directive principles.
32. Article 32 Right to constitutional remedies.
33. Article 51A Fundamental duties.

CHAPTER: 3
INTERPRETATION OF STATUTES
KANNON KO SAHI TARAH SE SAMJHNE KE NIYAM KO HUM,

INTERPRETATION OF STATUES KAHTE HAI
1. In Maxwell book of interpretation of statues the word ―statues‖ is defined as the ―will of
legislature‖ legislature means law making body.
2. As per Bouvier‘s law dictionary ―statues‖ means a law established by the legislative power.
However the word statue is not used in Constitution of India, & it uses the word ―Law‖. So We can use
the words law and statue interchangeably.
STATUTES ARE COMMONLY DIVIDED IN FOLLOWING CLASSES:-

1. CODIFYING LAW:-
A law which codifies the unwritten law.
2. DECLARATORY LAW:-
A law that does not amend an existing law but provides explanation relating to an existing law.
Ex. General clause act, 1897.
3. REMEDIAL LAW:-
These laws are rules made by judges (non statutory) in order to provide remedies to aggrieved party –
Remedial laws may also alter the common law.
4. AMENDING LAW:-
A law that amends any existing law.
Ex. Companies Amendment act, 2017.
5. CONSOLIDATING LAW:-
A law that consolidates all the previous law in it.
6. ENABLING LAW:-
A law that removes previous restrictions.
7. DISEABLING LAW RESTRAINING LAW:-

A law that puts a restriction on any act which was previously allowed.
8. PENAL LAW:-
A law that provides punishments for various act and misconduct.
BASIS FOR
INTERPRETATION CONSTRUCTION
COMPARISON
Meaning We try to get the meaning Legal effect of provision considering the
of law in true sense. intention of law maker is drawn.

BASIS FOR
INTERPRETATION CONSTRUCTION
COMPARISON
Determines Linguistic meaning Legal effect
Used when Court complies with simple Legal text exhibits confusing meaning and the
meaning of the legal text. court has to decide whether the words used
in the legal text covers the case or not.
NEEDS FOR AND OBJECT OF INTERPRETATION :-

1. Justice Denning L.J. in case of Seaford Court Estates Ltd Vs Asher, stated that, ―English
language is not as perfect as mathematics , it is not possible to provide an interpretation which is
perfect in all regards and there is always a scope of ambiguity (confusion) mostly the draftsman
of parliament are criticized for ambiguity in any law.
2. Hence it becomes very important for all of us to interpret the law in correct and fair manner in
order to get a remedy by law. The duty of the Court is to make interpretation and punish the
guilty.
3. A judge is fettered or restricted by the written law so he must just interpreat the language and
nothing else.
4. Lot of time of judges will be saved if the laws were drafted with clarity and unambiguity.
5. In case the laws are not clearly drafted the judige can not just fold his hands and blame the
dreafters of law, rather he must do the interpretation and find the intention of the parliament,
which he will do from the language of the law and other social conditions and mischief and
remedies in the particular case.
6. While interpreting the judge must ask a question that if in his place the makers of law were
interpreting the law, how would have they interpreted the law.
7. A judge must not alter the material of which it is woven, but he can and should iron out the creases.
8. The object of interpretation has been explained in Halsbury‘s laws of England as, the object of
interpretation of a written document is to interpret the intention of the author of the law who
wrote it and as a result the interpretation must be as near as possible to the apparent intention
of the parties to the case as per the law.
9. The court will ascertain the intention of the parties by the words used by the parties that are
written on the instrument and from what was intended to be written but could not be written.
10. The courts give interpretation to what is expressed between the parties as to know the intention
of the parties.
11. So the object of interpretation is to know the real intention of the parties in relation to any case
and also to know the intention of the law makers of the law that applies to a particular case.
Que: In the interpretation of a statute a Judge must not alter the material of which it is WOven, but he can and
should iron out the creases. Comment
Meaning of Interpretation of Statues
1. It is judicial process of fixing, in accordance with certain rules and presumptions, the true
meaning of the Acts of the Parliament
2. The object of interpretation is to see what is intended by the words used by the
lawmaker. But, sometimes it is very difficult to understand the meaning without making
further inquiry. So, it becomes necessary to find out the correct meaning by applying
various rules of interpretation.
3. There is a clear distinction between Interpretation and Legislation.
4. The court only interprets the law and does not legislate it.
5. If the provision of law is misused and subjected to the abuse of the process of law, it is
the Legislature which will amend modify or repeal it by following proper procedure.
6. Therefore, statutory interpretation is an exercise which requires the court to identify
the meaning borne by the words in question in the particular context
CASUS OMISSUS RULE
According to definition of Merriam-Webster, casus omissus rule is a situation which is not present in law
or omitted from law and hence its governed by the common law.
There are two basic rules of interpretation:
1. Every word in a statute to be given meaning.
2. The court cannot read anything into a statute or rewrite a provision which is unambiguous. A
court generally interprets the law against rewriting.
It is the effect of the general rule of literal construction that nothing is to be added to or taken out from
a statute unless there are adequate grounds to justify the inference the legislature intended something
which it omitted to express.
When the language is clear and unambiguous and when there is no need to apply the tools of
interpretation, there is no need to interpret the word ‗or‘, nor any need to read it as a substitute word,
instead of its plain and simple meaning denoting as ‗alternative‘.
However, 3the judge may read in or read out words which he considers to be necessarily implied or
surplus by words which are already in the statute; and the judge has a limited power to add to, alter or
ignore statutory words in order to prevent a provision from being unintelligible, absurd or totally
unreasonable, unworkable, or totally irreconcilable with the rest of the statute.
INTERPRETATION OF DEFINITION CLAUSE

Usually, every statute has a definition section (also called ‗interpretation clause‘) which provides
definitions of various words and phrases used in the statute.
In order to keep the definition relevant the words ―unless the context otherwise required‖ are used in
the provisions relating to definition. These words means that the definition is only conclusive unless
otherwise context requires.
While interpreting, the interpreter should consider the context in which a word has been used, where
the definition of a word has not been given – the construction must be given in its popular sense and
Object of the statute should be given due consideration.
Further, the definitions may be exhaustive definitions and inclusive definitions. In exhaustive definitions,
a restricted meaning is provided for a particular word and in inclusive definitions, there is a scope of
further reading into of the words according to the context.
Example
Exhaustive Definition: “abridged prospectus” means a memorandum containing such salient features of a prospectus as may
be specified by the Securities and Exchange Board by making regulations in this behalf. (section 2(1) of the Companies Act,
2013.
Inclusive Definition: As per section 2(22AA) of the Income-tax Act, 1961 “document” includes an electronic record as defined
in clause (t) of sub-section (1) of section 2 of the Information Technology Act, 2000
PRINCIPLES OF INTERPRETATION:
Primary Rules

 The Primary Rule: Literal Construction
 The Mischief Rule or Heydon’s Rule
 Rule of Reasonable Construction i.e. Ut Res Magis Valeat Quam Pareat
 Rule of Harmonious Construction
 Rule of Ejusdem Generis
Other Rules of Interpretation
 Expressio Unis Est Exclusio Alterius

 Contemporanea Expositio Est Optima Et Fortissima in Lege
 Noscitur a Sociis
 Strict and Liberal Construction
1. Primary Rules of Interpretation:

1. RULE OF LITERAL CONSTRUCTION:-
As per this rule, word, phrase, sentence which is a
part of any law should be interpreted in its plain,
natural, ordinary, grammatical, popular or
dictionary meaning.
This rule has to be applied in all cases of
interpretation till the time natural, ordinary,
popular or dictionary meaning destroys the
purpose or objective of law or makes other
provisions of law redundant:-
NAND PRAKASH VOHRA VS. STATE OF
HIMACHAL PRADESH-
The other principals of literal construction are:-
a) Every word in law should be given a
meaning and no unnecessary word should be used.
b) If any word is not present in the statue, it
should not be interpreted.
c) The burden of providing that the words are not correct or the interpretation is not correct as per
dictionary meaning is on the party, who challenges such interpretation.
Example: When any section says 45 days, then we mean it 45 calender days and not 45 working days –
we interpret in the plain manner.
IN CASE OF SARBJIT RICK SINGH VS. UNION OF INDIA:-
It was decided that interpretation of any law should be done in a manner that gives effect to all it‘s
provisions.
In the case of State of Himachal Pradesh Vs Pawan Kumar, the Supreme Court stated that, one of the
basic principals of interpretation of statues is that the law should be interpreted as per the plain,
literal and grammatical meaning of the word + if grammatical or plain meaning is not used than it
must be proved by the party who challenges such interpretation that, such interpretation is opposed
to the intention of law makers and shows any absurdity (unreasonable)
(beta normanlly yeh rule kahta hai ki law ke words aap uski dictionary meaning ya plain meaning
main samajhiye aur yeh rule tab tak use kigiye jab tak plain meaning se kuch ulta pulta
interpretation na nikal jaye)
This rule is also known as golden rule of interpretation.
2. HAYDON’S RULE OR MISCHIEF RULE:-

AISA KARO LAW KO INTERPRET JIS SE MIL JAYE RELIEF,
AUR KAM HO JAYE MISCHIEF

As per this rule, whenever interpretation of any
provision is to made, 4 things are to be
considered:-
a) What was the common law before passing
of the law by parliament.
b) What was the mischief and defect for which
the common law did not provide.
c) The remedy provided by the parliament.
d) The true reason of remedy provided by
parliament.
SMITH VS. HUGHES:-

In this case the court interpreted the meaning of
the word ―street ― and decided that the word
street used in Street Offences Act 1959 , includes a Balcony too as per the principals laid down in
Heydon‘s rule.
In the case of UMED SINGH VS. RAJ SINGH, the court decided that the interpretation must be made
in the manner , which supresses the mischief and advance a remedy, however this does not mean
that natural and ordinary meaning is to be ignored.
In the case of SODRRA DEVI, Supreme court decided that the rule in the Heydon‘s case apply when
the words in question are ambiguous and capable of more than one meaning.
This rule is also known as purposive rule of interpretation.
(Bhai simle si cheej hai yeh rule apply karne ke pahle 4 cheeje deko, common law kya that, kon s
agunah tha jiske bare main common law shant tha, parliament ne kya kiya aur parliament ne kis
reason se remedy di fir aisa interpret karo ki mischief kam ho aur remedy mil jaye!)
3. RULE OF REASONABLE CONSTRUCTION – UT RES MAGIS VALEAT QUAM PAREAT:-

DICTIONARY MEANING KE SATH,
APNE COMMON SENSE KA BHI KARO UPYOG
―It may rather become operative than null‖
Normally the words are interpreted in ordinary, popular, dictionary, or grammatical meaning.
However exclusive reliance on the natural, popular dictionary meaning may not give a true
interpretation all the time . So as per the rule of reasonable construction, we must also apply our
common sense, also consider the intention of law makers to make a correct interpretation.
Normally laws are made to supress the mischief but if dictionary or plain meaning is not able to
supress the mischief then the court may ignore the dictionary meaning and make an interpretation
which will supress the mischief and provide remedy to the aggrieved party.
In the case of TIRATH SINGH VS. BACHITTAR SINGH, It was decided that if, the natural or ordinary
meaning of a statute (law) provides an inconvenience or absurdity or hardship of justice, an
interpretation can be made which modifies the meaning of words or even a sentence.
In the case of GITHA HARIHARAN, the supreme court interpreted the word ‗after‘ in hindu minority
and guardianship act, when provisions of the act stated that ―the Right of mother to be guardian is
after father ‗ . The court said if the mother is given a right after father, it will violate the
constitution of India (right of equality) so word after should be interpreted as equal.
In the case of Newman Manufacturing Ltd Vs Marrables, it was decided that, if court believes that
ordinary or natural meaning of any word is not clear than, interpretation must be made as per
purpose, policy and intention of law.
(Kai bar dictionary meaning ya plain meaning se sahi interpretation nai milta to yeh rule use kar
sakte hai common sense use kar ke)
4. RULE OF HARMONIOUS CONSTRUCTION:-

AGAR EK HI LAW MAIN DO PROVISIONS, CONTRADICTORY, CHEEZEN BOLTE HAI,
TO YEH RULE HOGA LAGUU
According to this rule, one provision of law should be interpreted in harmony with the other provision of
law, where there is head on clash between the
provisions of same law, the court should give
interpretation which should avoid clashes between
section and give the best possible meaning.
In the case of Raj Krishna Vs Pinod Kanugo, it was

decided that, It is the duty of the Courts to avoide any
inconsistency between the two provisions of the same
law.
If the interpretation makes one of the provisions dead,

it is not a harmonious construction.
(Samajhiye agar ek law main do provisions hai aur wo dono opposite hai matlab ek bolta hai ki aisa kar
sakte hai par dusra bolta hai ki aisa nai kar sakte to aap ko aisa interpretation nikalna hai ki donon ko
meaning mil jaye aur unka jhagda khatam ho jaye)
In the RAMKRISHNA’S Case:
Section 33(2) of People‘s Representation Act, stated that the government servant may nominate
candidate for election. However 123(8) of People‘s Representation Act , stated that the government
servant can‘t assist the candidate for election except by voting. The court decided that the government
servant can assist the candidate for election by voting and may also nominate him, as per Harmonious
Construction.
In DADI JAGANNATHAN’S CASE:- It was decided that-: the court must start with the presumption
that the legislature did not make any mistake. The court must interpret or carry out the obvious
intention of law. The court should not make any addition or deletion in law.
5. EDJUSDEM GENERIS (It means types of species):-

When law lists specific persons or things and refers to them in general, in such manner that the
specific word forms a class, then in this case the general word shall also include only those words
which are of the same class as established by specific words.
(jab kisi law main kuch specific words likhe hue hai aur fir ek general word se unhe describe kiya hai
to general word ke andar job hi words aayenge wo specific works ke class ke hi honge)
For example in any law it is stated that ―this provision applies to plant, machinery, and all heavy
goods, now in this case specific words are used such as plant, machinery and general word is also
used as heavy goods now in this case whenever we have to interpreat the word heavy goods we can
not use the interpretation that is not heavy good such as heavy goods can not include a mobile
phone)
Specific words must belong to same kind of species.
In the case of JAGE RAM VS. STATE OF HARYANA: it was decided that the rule of Edjudem Generis
will apply if the following condition is satisfied:-
1. Law or provision of law uses specific words.

2. Specific words are referred to as general words.
3. Specific words form a class.
4. General words need to be interpreted.
Advantages
 there is no requirement for the draftsmen to write an full or exhaustive list of everything that is
included

 the act can cover circumstances which might not have been covered by the draftsmen
 it allows the act to adapt to changes in society
Disadvantages
 it is not always predictable what the judges will consider to be the same category as the specific
words
 it allows for judicial law-making which is not desirable
QUE:Explain the rule of ‗Ejusdem Generis‘ under the Interpretation of statute.

Que: The rule of Ejusdem generis must be applied with great caution. Critically examine the merits and
demerits of this rule.
Literal Heydons Rule Reasonable Harmonious Edjesdum Generis

Construction Construction Construction
Use Dictionary Before interpreting When dictionary When there is When we have to
Meaning any word aaply 4 meaning destroys conflicting interpreat the
rules the purpose of provisions in the specific words
law, we apply same law we use which are
common sense and this interpretation described under
intention of law general words we
makers use this
interpretation.
OTHER RULES OF INTERPRETATION:-
1. EXPRESSIO UNIOS EXCLUSIO ATERIS:-

AGAR ACCHA INTERPRETATION AAEGA,
TO KHARAB INTERPRETATION JAEGA!
It means express mention of one thing implies exclusion of other. As per this rule, whenever we get a
better interpretation of any word, we must ignore the previous meaning of the word and adopt the
new meaning.
This rule is normally used when plain meaning creates confusion.
Ex:- If we get a better meaning of the word by applying the rule of reasonable construction, then we
must consider the meaning suggested by reasonable construction and should leave the meaning
suggested by literal construction.
In the case of PARBHANI CO-OPERATIVE TRANSPORT SOCIETY VS. REGIONAL TRANSPORT

AUTHORITY:- It was decided that this rule doesn‘t apply when language of law is very clear.
2. CONTEMPORANEA EXXPOSITIO EST OPTIMA ET FORTISSIMO IN LEGE:-
This rule is used when the meaning of any word given in law has been changed over the period of
time.
As per this principal ―Contemporaneous exposition is best and strongest in law‖. When the word used
in law have been changed in course of time, interpretation of the word shall be made as per it‘s
meaning represents the true intention of law makers.
So we must use the contemporary menaing that existed at the time when law was made
(is rule ke hisab se wo meaning hi consider kigiye jo us vakt thi jab law bana tha)
STATE OF MADHYA PRADESH VS. G.S. DALL AND FLOWER MILLS:-

In this case the court decided that the state can‘t interpret any law in order to widen it‘s power.
R.S. NAYAK VS. A.R. AUNTULEY:-

In this case the court interpreted sec 121 of IPC 1860 and said that MLA‘s are not public servant as,
when IPC was enacted MLA were not included in the definition of public servant.
However, if any wrong meaning is attached to any word , the court can give the correct
interpretation if new interpretation doesn‘t affect any title to the property or any transaction
already entered.
3. NOSCITUR A SOCIIS:-
This rule means ―known by it‘s associates‖. As per this rule meaning of any word in a law should be
known by it‘s accompanying words or sorrounding words or associatewords. This rule is normally used
in cases when word in any law suggests more than one meaning.
―It also means that when 2 or more words have same meaning they can be understood in cognate (same)
sense – Maxwell‖
In the case of CIT Vs Bharti Cellular, The Supreme Court interpreted the word ―technical service‖ used
in section 194J of Income Tax Act, and said as the meaning of word technical service is not given in
income tax act but the word technical service involves consultancy by human being so in order to provide
technical services there has to be a human element. The meaning of technical service was discovered by
the use of principal of noscitur a sociis.
When 2 or more words have a similar meaning, they can be coupled together in cognate sense.
In the case of FOSTER VS. DIPHWYS CASSON, a law stated that explosives products shall be carried in
case or canister . However, the defendant used a cloth bag. The court had to decide whether cloth bag
comes into definition of case or canister . By applying the principle of Noscitur a sociis, the court
decided that the word ―case or canister‖ to show the strength in the terms of carrying the explosive ,
the cloth bag can‘t come under the definition of case or canister.
This rule cannot apply:-

a. When it causes confusion.
b. When different circumstances exist.
c. When the words are used in different content.
d. A sufficient reason can be given for different of proceeding and succeeding words.
This rule should not be confused with the rule of edjesdum generis where we interpret the specific words
which belong to same class.
(agar ek word law main use kiya hai aur us ka similar word bhi use kiya hai to aap donon ki menaing ek hi
tarah ki rahiye)
4. STRICT CONSTRUCTION:-
BHAI APNA DIMAK MAT LAGAO,
JAISA LIKHA HAI VAISA INTERPRET KARO
When there is a mandatory duty upon any person and such person breaches such duty, law will strictly
apply to such person.
This rule has a limited applicability now a days. If an interpretation suggests 2 alternate constructions
out of which one provides a remedy, and the other does not provides a remedy, the courts will use the
interpretation which provides a remedy.
In one of the cases, the IPC punished a person who was proved to be guilty of stabbing the accused had
given injury to other party by ―biting‖, the court interpreted the word stabbing strictly and held ―biting‖
is not covered in the scope of ―stabbing‖.
For example the tax laws must be interpreted strictly. In the case of Harshad Mehta, it was observed by
the Court that when laws are interpreted strictly, nothing should be left to presumption and one has to
look fairly at the language used in law.

Example: if the companies act requires any form to be filed within 30 days then the 30 days must be
interpreted as 30 calender days and even if delay of 2 day is made it will be considered as contravention
as per the particular provision.
Strict interpretation is also known as Litra Legis.
(kanoon main jaisa likha hai vaisa interpret karo apna dimak mat lagao)
5. LIBERAL CONSTRUCTION:-
While interpreting welfare laws, widest interpretation shall be used. The courts should extend the scope
of law in order to provide remedy. This rule states that the court must interpret the words or language
in the law to promote the public good.
It is also known as sociological interpretation or beneficial interpretation. Here the court widens the
meaning of any word given in law to provide benefits to the parties who need benefits on account of
their condition.
(victims ya dukhi logon ke fayde ke liye law ke scope ko badhaya ja sakta hai)
AIR INDIA STATUTORY CORPORATION V/S UNITED LABOUR UNION:-
In this case, the court interpreted section 20 of contract labour act and said that the employment in
which the appropriate government prohibits the contract labours, such contract labours shall be
absorbed by the employers, there was no provision of absorption of contract labour, but the court gave a
liberal interpretation to section 20.
In the case of Comptroller And Auditor General Of India V/S K.S. Jagannathan, the court decided that
constitution of India shall be interpreted in such a manner that members of Schedule Cast and Schedule
Tribe gets the maximum benefits.
INTERNAL AND EXTERNAL AIDS IN INTERPRETATION

A. Internal aids in Interpretation:-
LAW KO SAMJHNE KI MADAT,
LAW SE HI MILEGI!
1. TITLE:-
There are two types of title:-
LONG TITLE SHORT TITLE
It contains full name of act of the law and a title that
These are abbreviated title on short
represents the purpose of law. title. The purpose of short title is to
facilitate ease of reference.
Ex:- Companies act 2013 act to consolidate and amend Ex:- Short title of Companies Act is
the law relating to companies. Companies Act, 2013
Title are stated before preamble . Initially, England didn‘t recognise the title as an aid of
interpretation, but now they have recognised long title as an aid to an interpretation.
The long title generally covers law and its purpose so we can also consider it as preamble. Long title can
not override the clear provisions of law.
In ASHWIN KUMAR GHOSH CASE:-

The court decided that title is a part of law. Short titles are used for description and identification of
law, whereas long titles may be used as an aid to interpretation.
In the case of Union of India Vs Elphinston Spining and Weaving Company Limited, it was decided that
the long title alone or along with the preamble is good guide regarding the abject, scope and purpose of
law.
2. PREAMBLE:-
It begins before the section and after the title. It is a part of law, it is an aid in interpretation, it
suggests(unlocks) the legislative intent. If the law and it‘s provisions are very clear, then there will be no
need to refer preamble.

If preamble is not separately given in any statue then it can also be the part of long title.
However the morden laws do not have preamble due to which the importance of preamble is declining
and instead of preamble long titles are given in morden laws.
ANIT DAS VS. STATE OF BIHAR:-

The court decided that, preamble states, what the act law intends to deal with, if the provisions of law
are not clear, then the courts are suggested to look into preambles.
In BURAKAUV COAL CO. CASE:-

The court decided that if meaning of provisions is clear, preamble can be disregarded.
Preamble suggest the true intention of law makers or the object and purpose of the law.
3. HEADING:-
It is a short nomenclature or caption. There are two types of heading:-
Short heading Long heading
They are prefix to a section. They are prefixed to group of section.
For example : Section 4, Memorandum of For example: Chapter 11 of Companies Act,
Association, in companies act. which includes section 149 to 171 under the
title Appointment and Qualification of
Directors.
There are 2 opinions on heading:-
It is key to interpretation of clauses, unless Reference of heading be made only when
the wording of heading is inconsistent with the statute are ambiguous.
the contents of provisions.
CIT VS. AHMEDBHAI UMEDBHAI:-

IN this case the court decided that heading or titles cannot be used to restrict the plain meaning of
law.
BHINKA VS. CHARAN SINGH:-

In this case, heading of section, 180 of UP tenancy act stated ―Ejectment of person without title‖. The
section contains ―a person who retains the possession of property without consent of the person who is
entitled to admit, may be ejected.‖
In this case, the court ignored the heading as heading talks about ejection of person without title and
section talks about ejection of any person who occupies the possession without the consent of owner
(person entitled to admit)
4. MARGINAL NOTES:-
The headings or the notes that are put at one side of section are called as marginal notes. These heading
decides the effect of the sections. In past marginal notes, were considered as source of interpretation,
but now, by majority of views, the marginal notes cannot be considered as source of interpretation.
Marginal notes are insterted by drafters and not by legislators.
In the case of SHRIKANT PADAMRAJE R. KADAMBANDE VS. CIT:- The
court decided that marginal notes cannot control the meaning of section,
when they are clear. However, it must be noted that they are the part of
law, and the key pointer to the intention of law maker.
In the case of BANGAL IMMUNITY CO. LTD:-

It was decided that marginal notes attached to article of constitution are
part of constitution and can be used for interpretation for article of
constitution.
(section ke side main likhte hai yeh batane ke liye ki section kab se lagu hua tha ya fir section ke bare
main aur jada clarity dene ke liye)
5. INTERPRETATION CLAUSES:-
Every law contains definitions. These definitions explain the words, which are used in law. The
interpretation clause or the definition given to any word provides a meaning to the word in law.
The kinds of definitions:-
1. RESTRICTIVE:-
When the word defined as ―means‖. Ex:- definition of company given in companies act 2013.
2. EXTENSIVE:-
When the word is defined as ―it includes but not limited to‖.
3. INCLUSIVE AND EXCLUSIVE:-
This kind of definition includes one thing and excludes the other thing. Ex:- the definition of GOODS
given in sale of goods act, 1930.
6. PROVISO:-
In the words of HIDAYTULLA J. proviso are used to qualify (condition) a statement or provide
exceptions.
Exceptions or conditions are provided in law through:-
PROVISO EXCEPTIONS SAVE AS
Proviso are used to remove It restricts the meaning of It preserves from destruction
special cases from the general section. certain rights, privileges and
statement. damages.
7. ILLUSTRATION:-
Illustrations are the examples given in the law itself, in order to explain the provisions of any law.
Illustrations are the part of the law and they explain the intention of law. It explains the meaning of a
provision and become the parcel of section.
Illustration cannot curtail or expand the scope of the section. If there is any conflict between the
illustration and section, the section shall prevail.
Mahesh Chandra Sharma v. Raj Kumari Sharma
It was held that illustrations are parts of the Section and help to explain the principles of the section.
8. SCHEDULES:-
Laws are basically divided In section and schedules. Schedules are attached to a law. They are part of
law to which they are attached. They contain the details, which cannot be included in sections,
schedules may go beyond sections.
If there is a conflict between schedule and the law, the law has upper head.
In the case of RAMCHAND VS. SALE TAX OFFICER :- It was decided that the language of schedule in
order to be clear must contain the heading of section, to which it relates.
EXTERNAL AIDS TO INTERPRETATION:-

It means a remedy in interpretation from outside the law.
1. PARLIAMENTORY HISTORY:-
LAW PAS KARTE WAQT JO DISCUSSIONS HOTE HAI PARLIAMENT MAIN,
US SE BHI SAMJHATA KI LAW KE PEECHE NEEYAT KYA HAI
Parliamentary history means the discussions that were held in the parliament at the time of passing a
particular law.
In England parliamentary history, is not considered as a remedy of interpretation.
However, in India it has been decided by the court in multiple cases that parliamentary history, may be
considered by the Courts for proper understanding of law.
In S.S. Suryavanshi case:- The case was to interpret section 53A, of transfer of property act, 1882,
which was included on recommendation of special commitee formed by government, in the discussion
made in parliament , it was decided that the purpose of introducing the section 53A is to protect the
buyers of immovable property on the ground of non- registration , the court considered the discussion
made in the parliament and the report of special committee.

In order to interpret the constitutional provision, the court considered the decision made in the
constituent assembly.
2. REPORTS OF COMMITTEE:-
Basically, laws are made on the report of committees that are appointed to draft the particular law,
after the discussions that are held in the parliament.
To check the background of any law, a reference can be made to the report of the committee that
drafted the law. However, the parliament in order to avoid the mischiefs, changes the actual report of
the committee, so the reports of committee cannot be always relied.
In the case of MUHAMMAD HANIF QUERESHI VS. KUSUM KUMARI:- the court on the question of banning
of slaughtering of cows, referred the report of GOSAMVARDHAN COMMITTEE.
3. Reference to other status (Pari materia)
This concept of Pari materia can be covered under the following parts:-
a. Pari materia:-
EK JAISE LAWS PARI MATERIA KAHLATE HAI
Laws are considered as pari materia (latin word, same nature) if they relate to same object, same
subject matter, same persons or same things.
As per Viscount Symonds, the pari materia laws can be used for interpretation for understanding
meaning of one or more word in pari materia law.
For example, in order to know the menaing of the word company used in SEBI Act, 1992, we can refer
to the Companies Act, 2013 (for the purpose of definition of company in SEBI Act, 1992, the
Companies Act, 2013 can be considered as pari materia law)
In the case of BABU KHAN VS. NIZAN KHAN:- The court decided that while interpreting a provision
given in any law , the court can consider the similar provision in pari materia law.
Through the concept of Pari Materia, ambiguous provision of one law can be interpreted through the
other law.
b. EARLIER LAWS:-
Earlier laws cannot be used to interpret later laws and later laws cannot be used to interpret
previous laws.
c. REPEALLED LAWS:-
The repealed laws should not be used for interpretation of any law, however the court may refer to
repealed laws if the Court considers the repealed law to be pari-materia.
d. RULES AND REGULATIONS:-
The rules and regulations made by the government can also be considered as a source of
interpretation.
DICTIONARY:-
When any word is not defined in the act, it is permissible to refer to dictionaries to find out a general
sense in which the word is used in the law. Whenever, the dictionary meaning is used, it should be borne
in mind that the purpose of law and intention of law maker should not be affected by the dictionary
meaning.
In cases where the word has a legal or technical meaning , such words must be interpreted as per the
intention of law makers.
―Meaning of any word given in Pari Materia law will be given more weightage then the dictionary
meaning.‖
USE OF FOREIGN DECISIONS

Now a days, in order to have a uniformity in International jurisprudence, the court refers to foreign
decisions and the foreign courts also refer to Indian decisions. However at the time of using foreign
decisions, the language of Indian law should be given first priority.
For example we use the case of Saloman Vs Saloman Ltd to understand the concept of separate legal
entity. We use the case of Reylands Vs Fletcher to understand the rule of strict liability in torts.
PRESUMPTIONS
While interpreting the laws following presumptions are to be kept in mind:-
a. The law is never against state.
b. The law never punishes a person who does not have a guilt intension.
c. The word Mensrea is normally used for interpreting the criminal laws.
d. Indian laws are not interpreted in the manner foreign laws are interpreted.
e. Principle of natural justice shall be followed before passing any decision .
f. Law is never against public policy.
g. Law always suppress mischief.
h. Law always provide remedy to aggrieved party.
SUMMARY NOTES FOR INTERPRETATION OF STATUES
Law is not perfect as mathematics and hence interpretation of law is required.
Interpretation is concerned with understanding the meaning of the words in law while construction is
concerned with applying the legal context of the word in court cases.
*Primary Rules of Interpretation :

a)Limited construction :Refer to dictionary ,ordinary ,popular and grammatical meaning of law.
b)Mischief Rule :make an interpretation which suppresses the mischief and advances remedy (Consider
those 4 questions)
c)Harmoneous Construction :If two provisions of same law conflicting ,make an Interpretation which
provides meaning of both the provisions.
d)Rule of Reasonable Construction :Along with dictionary meaning also apply common sense.
e)Rule of Adjusdem Generes :When in any law specific words are used and they are described by a
general word, the interpretation of specific words shall be limited to the same class of words.
Other rules of Interpretation:

1) Expressive unis Exclusive alteris:It means express mention of one thing implies the exclusion of other
so if a better interpretation is received by applying other rule of interpretation ,apply the rule and
ignore the meaning suggested by previous rule.
2)Contempronea Est Optima in fortission in lege:This rule applies when the meaning of any word has
been changed over a period. As per this rule Interpretation must be made as per the contemporary
meaning of the word, when law was enacted.
3) Noscitor a soiciis: It means known by its associate bodies.When any words meaning is not clear its
interpretation can be drawn from its accompanying words.
4) Strict Construction: we must not extend or limit the scope of law .Strict Construction is used to
provide remedy to accused.
5) Liberal Construction: Scope of law can be extended or reduced to provide remedies to aggrieved
parties or backward class people.
INTERNAL AIDS TO INTERPRETATION
It means the remedy from the law itself.

A) Title of law :Long title which mentions the full title of law can be used as a source of interpretation
b) Preamble : Part of law can be used as a source of Interpretation to know the meaning and object of
law,however if provisions of law are clear then there is no need of using preamble.
c) Heading : The headings which are used with section may be used as interpretation if there is conflict
between heading and content of section, the latter will prevail.
d)Illustration : In order to explain a provision in a practical way they are used and are part of law.
Cannot extend law.
e) Marginal Notes: They are basically written on one side of section ,basically explain the effect of
section.
f) Interpretation clause :The words that are frequently used in law they are defined in law itself in
interpretation clause.
g)Proviso :They are used to qualify the provision
h) Schedules :The content of law which could not be covered in section of law may be separately
attached to law with the help of schedules ,it can extend limit /scope of law.
*EXTERNAL AIDS TO INTERPRETATIONS

1) Parliamentary history: In India the discussions that are made in parliament at the time of enacting the
laws are source of interpretation.
2) Reports Of committee on whose recommendation law was enacted is also referred as source of
interpretation.
3) Dictionary meaning can be referred as the source of Interpretation.
4) Foreign Decisions : decisions passed by foreign courts.
*PRESUMPTIONS RELATED TO INTERPRETATION:

a) Law is never against the state
b) Mens rea is used in criminal cases
c) No person can be punished unless he has guilty intention
d) Principle of natural justice
e) Law also suppresses the mischief
f ) Law is never against public policy .
TEST
1) Literal rule of interpretation is the best rule of Interpretation .Comment
2) Court must make the interpretation which suppresses the mischief and advances the
remedy.Comment
3) All the Indian laws are to interpret in same manner as foreign laws .Comment
4) what is the impact of pari materia laws of interpretation of statues ?
Test Answers
1) Literal rule of interpretation refers to the interpretation of the words from natural, ordinary, popular
or dictionary meaning. Literal rule of interpretation is the primary rule of interpretation and this rule is
given priorty over all other rules of interpretation. In many decisions passed by the Courts it has been
decided that the natural, popular or dictionary meaning of the word should always be given a priority
unless the use of dictionary meaning destroys the purpose of the law.
So to a large extet we can say that literal rule of interpretation is one of the most commonly used rule of
interpretation and one of the best rules of interpretation.
2. When a single word used in any law suggest a meaning which is ambiguous or causes a confusion in this
case the Courts can use the heydons rule of interpretation. As per the Heydons Rule the Courts must
make an interpretation which suppresses the mischief and advances a remedy.
This rule is used based on four questions:

a) what was the common law,
b) what was the mischief that common law did not provide for,
c) what remedy was provided by parliament,
d) true reason of remedy provided by the parliament.
It has been also decided in many cases that as per Haydons Rule the Court must make an interpretation
which supresses the mischief and advances a remedy.
3.When the Courts make interpretation of any provision of law than the Courts follow certain
assumptions. One of the Assumptions is that the Indian laws are not interpretated in the same manner as
foreign laws are interpreted, it is due to different legislative Intent. That means the intention with
which any law is passed in foreign country, the intention of Indian legislature may be different with
regard to the law on the same subject matter. So one can conclude that the Indian Laws are not
interpreted in the same manner as foreign laws.
4. Pari Materia Laws are the laws that have the subject matter and deals with same class of persons or
things. In India the Courts generally refer to the pari materia laws. For example if a meaning in any word
in any law is not clear than the Courts can refer to the replealed law on the same subject matter.
Pari Materia Laws can be classified as:
Earlier Laws: Not referred by the Courts.

Repealed Laws: May be referred by the Courts for interpretation.
Rules made by Executive: May be referred for interpretation.
.

CHAPTER: 4
GENERAL CLAUSES ACT,
1897
SARE KANNONI SHABDON KA MATAL,
IS KANOON MAIN BATAYA GAYA HAI
This [law] Act contains definitions of the words and expressions that are used in various central acts and
regulations. Ans: The General Clauses Act, 1897 is a consolidating Act.
It consolidates the General Clauses Act, 1868 and the General Clauses Act, 1887.
The General Clauses Act, 1897 has been passed with the aim and objective to provide one single law as
for definng the words and provisions that are used in the other laws.
The General Clauses Act, 1897 contains 'definitions' of some words and also some general principles of
interpretation.
The General Clauses Act is very operational in the absence of clear definition in the specific law and in
the construction or interpretation of statute.
The Act gives a clear suggestion for the conflicting provisions and differentiates the legislation according
to the commencement and enforcement to avoid uncertainty.
This Act also defines certain words or expressions so that there is no unnecessary repetition of definition
of those words in other Acts. It also provides a set of rules which regulate certain aspects of operation of
other enactments.
The definitions of General Clauses Act, 1987 are applicable to all Central Acts and Regulations made
after the commencement of this Act, unless there is anything repugnant in the subject or context
The General Clauses Bill was referred to the Select Committee and the Select Committee submitted its
report on March 4, 1987. Based on the report of the Select Committee the Bill was passed by the Council
of the Governor-General and it came on the statute book as the General Clauses Act, 1897.
Section 3 of the General Clause Act provides that in this Act, and in all Central Acts and Regulations
made after the commencement of this Act, unless there is anything repugnant in the subject or
context,─
(1) "Abet", with its grammatical variations and cognate expressions, shall have the same meaning as in
the Indian Penal Code (45 of 1860);
(2) "Act", used with reference to an offence or a civil wrong, shall include a series of acts, and words
which refer to acts done extend also to illegal omissions;
(3) "Affidavit" shall include affirmation and declaration in the case of persons by law allowed to affirm
or declare instead of swearing;
(4) "Barrister" shall mean a barrister of England or Ireland, or a member of the Faculty of Advocates in
Scotland;
(5) "British India" shall mean:
a) as respects the period before the commencement of Part III of Government of India Act, 1935, all
territories and places within His Majesty's dominions which were for the time king governed by His
Majesty through the Governor General of India or through any Governor or Officer subordinate to
the Governor General of India,
b) For any period after that date and before the date of establishment of the Dominion of India
means all territories for the time being comprised within the Governor' Provinces and the Chief
Commissioners' Provinces, except that a reference to British India in an Indian law passed or made
before the commencement of Part III of the Government of India Act, 1935, shall not include a
reference to Bearer;
“British possession” shall mean any part of Her Majesty's dominions exclusive of the United Kingdom,
and where parts of those dominions are under both a Central and a Local Legislature, all part under
the Central Legislature shall, for the purposes of this definition, be deemed to be one British
possession;
"Central Act" shall means an Act of Parliament and shall include:

a) An Act of the Dominion legislature or of the Indian Legislature passed before the commencement
of the Constitution, and
b) An Act made before such commencement by the Governor General in Council or the Governor
General, acting in a legislative capacity;
"Central Government" shall,-

(a) In relation to anything done before the commencement of the Constitution, mean the Governor
General or the Governor General in Council, as the case may be; and shall include,-
(i) In relation to functions entrusted under sub-section (1) of Section 124 of the Government of
India Act, 1935, to the Government of a Province, the Provincial Government acting within
the scope of the authority given to it under that sub-section; and
(ii) In relation to the administration of a Chief Commissioner‘s Province, the Chief Commissioner
acting within the scope of the authority given to him under sub-section (3) of section 94 of
the said Act; and
(b) In relation to anything done or to be done after the commencement of the Constitution, mean
the President; and shall include,-
(i) in relation to Functions entrusted under clause (1) of article 258 of the Constitution, to
the Government of a State, the State Government acting within the scope of the
authority given to it under that clause;
(ii) In relation to the administration of a Part C State before the Commencement of the
Constitution(Seventh Amendment) Act, 1956, the Chief Commissioner or the Lieutenant-
governor or the Government of a neighbouring State or other authority acting within the
scope of the authority acting within the authority given to him or it under Article 239 or
Article 243 of the Constitution, as the case may be; (and)
(iii) In relation to the administration of a Union territory, the administrator thereof acting
within the scope of the authority given to him under article 239 of the Constitution;
(9) "Chapter' shall mean a Chapter of the Act or Regulation in which the word occurs;
(10) "Chief Controlling Revenue Authority" or "Chief Revenue Authority" shall mean
a) In a State where there is a Board of Revenue, that Board;
b) In a State where there is a Revenue Commissioner, that Commissioner;
c) In Punjab, the Financial Commissioner; and
d) elsewhere, such authority as, in relation to matters enumerated in List I in the Seventh
Schedule to the Constitution, the Central Government, and in relation to other matters, the
state Government, may by notification in the Official Gazette, appoint;
(11) ''Collector" shall mean, in a Presidency-town, the Collector of Calcutta, Madras or Bombay, as the
case may be, and elsewhere the chief officer-in-charge of the revenue-administration of a district;

(12) Colony
a. In any Central Act passed after the commencement of Part III of the Government of India Act,
1935, shall mean any part of His Majesty's dominions exclusive of the British Islands, the
Dominions of India and Pakistan (and before the establishment of those Dominions, British
India), any Dominions as defined in the Statute of Westminster, 1931, any Province or State
forming part of any of the said Dominions, and British Burma; and
b. In any Central Act passed before the commencement of Part III of the said Act, means any part
of his Majesty's dominions exclusive of the British Islands and of British India and in either case
where parts of those dominions are under both a Central and Local Legislature, all parts under
the Central Legislature shall, for the purposes of this definition, be deemed to be one colony.
(13) "Commencement" used with reference to an Act or regulation, shall mean the day on which the Act
or regulation comes into force;
(14) "Commissioner" shall mean the chief officer-in-charge of the revenue administration of a division;
(15) "Constitution" shall mean the Constitution of India;
(16) "Consular officer" shall include consul-general, consul, vice-consul, consular agent, pro-consul and
any person for the time being authorized to perform the duties of consul-general, consul, vice-
consul or consular agent;
(17) "District Judge" shall mean the Judge of a principal civil court of original jurisdiction, but shall not
include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction;
(18) "document" shall include any matter written, expressed or described upon any substance by means
of letters, figures or marks, or by more than one of those means which is intended to be used, or
which may be used, for the purpose of recording that matter;
(19) "Enactment" shall include a regulation (as hereinafter defined) and any regulation of the Bengal,
Madras or Bombay Code, and shall also include any provision contained in any Act or in any such
regulation as aforesaid;
(20) "Father", in the case of any one whose personal law permits adoption, shall include an adoptive
father;
(21) "Financial year" shall mean the year commencing on the first day of April;
(22) A thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is
done negligently or not;
(23) "Government" or "the Government" shall include both the Central Government and any State
Government;
(24) "Government securities" shall mean securities of the Central Government or of any State
Government, but in any Act or regulation made before the commencement of the Constitution
shall not include securities of the government of any Part B State;
(25) "High Court", used with reference to civil proceedings, shall mean the highest civil court of appeal
(not including the Supreme Court) in the part of India in which the Act or regulation containing the
expression operates;
(26) "Immovable property" shall include land, benefits to arise out of land, and things attached to the
earth, or permanently fastened to anything attached to the earth;
(27) "Imprisonment" shall mean imprisonment of either description as defined in the Indian Penal Code;
(28) "India" shall mean-

(a) as respects any period before the establishment of the Dominion of India, British India
together with all territories of Indian Rulers then under the suzerainty of his Majesty, all
territories under the suzerainty of such an Indian Ruler, and the tribal areas;
(b) as respects any period after the establishment of the Dominion of India and before the
commencement of the Constitution, all territories for the time being included in that
Dominion; and
(c) as respects any period after the commencement of the Constitution, all territories for the
time being comprised in the territory of India;
(29) "Indian law" shall mean any Act, ordinance, regulation, rule, order, bye-law or other instrument
which before the commencement of the Constitution had the force of law in any Province of India
or part thereof, or thereafter has the force of law in any Part A State or Part C State or Part
thereof, but does not include any Act of Parliament of the United Kingdom or any Order in Council,
rule or other instrument made under such Act;
(30) "Month" shall mean a month reckoned according to the British calendar;
(31) "Movable property" shall mean property of every description, except immovable property;
(32) "Oath" shall include affirmation and declaration in the case of persons by law allowed to affirm or
declare instead of swearing;
(33) "Offence" shall mean any act or omission made punishable by any law for the time being in force;
(34) "Official Gazette" or "Gazette" shall mean the Gazette of India or the Official Gazette of a State;
(35) "Part" shall mean a part of the Act or regulation in which the word occurs;
(36) "Part A State" shall mean a State for the time being specified in Part A of Schedule I to the
Constitution, as in force before the Constitution (Seventh Amendment) Act, 1956, "Part B State"
shall mean a State for thetime being specified in Part B of that Schedule and "Part C State" shall
means a State for the time being specified in Part C of that Schedule or a territory for the time
being administered by the President under the provisions of article 243 of the Constitution;
(37) "Person" shall include any company or association or body of individuals, whether incorporated or
not;
(38) "Political Agent" shall mean,-

a) in relation to any territory outside India, the Principal Officer, by whatever name called,
representing the Central Government in such territory; and
b) in relation to any territory within India to which the Act or regulation containing the
expression does not extend, any officer appointed by the Central Government to exercise all
or any of the powers of a Political Agent under that Act or regulation;
(39) "Presidency-town" shall mean the local limits for the time being of the ordinary original civil
jurisdiction of the High Court of Judicature at Calcutta, Madras or Bombay, as the case may be.
(40) "Province" shall mean a Presidency, a Governor's Province, a Lieutenant Governor‘s Province or
Chief Commissioner‘s Province;
(41) "Provincial Act" shall mean an Act made by the Governor in Council, Lieutenant Governor in Council
or Chief Commissioner in Council of a Province under any of the Indian Councils Acts or the
Government of India Act, 1915, or an Act made by the Local Legislature or the Governor of a
Province under the Government of India Act, or an Act made by the Provincial Legislature or
Governor of a Province or the Coorg Legislative Council under the Government of India Act, 1935;
(42) "Provincial Government" shall mean, as respects anything done before the commencement of the
Constitution, the authority or person authorized at the relevant date to administer executive
government in the Province in question;
(43) "Public nuisance" shall mean a public nuisance as defined in the Indian Penal Code;
(44) "Registered", used with reference to a document, shall mean registered in 6[India] under the law
for the time being in force for the registration of documents;
(45) "Rule" shall mean a rule made in exercise of a power conferred by any enactment, and shall include
a Regulation made as a rule under any enactment;
(46) "Schedule" shall mean a schedule to the Act or Regulation in which the word occurs;
APPLICATION OF ABOVE DEFINITIONS TO INDIAN LAWS

(1) The definitions in section 3 of the following words and expressions, that is to say, "affidavit",
"barrister", "District Judge", "father", "immovable property", "imprisonment", "Magistrate", "month",
"movable property", "oath", "person", "section", "son", "swear", "will", and "year" apply also, unless
there is anything repugnant in the subject or context, to all Central Acts made after the third day of
January, 1868, and to all regulations made on or after the fourteenth day of January, 1887.
(2) The definitions in the said section of the following words and expressions, that is to say, "abet",
"chapter", "commencement", "financial year", "local authority", "master", "offence", "part", "public
nuisance", "registered", "schedule", "ship", "sign", "sub-section" and "writing" apply also, unless there
is anything repugnant in the subject or context, to all Central Acts and Regulations made on or after
the 14th day of January, 1887. [Section 4]
(3) Application of certain definitions to Indian laws (Section 4A)
(1) The definitions in section 3 of the expressions “British India”, “Central Act”, “Central Government”, “Chief
Controlling Revenue Authority”, “Chief Revenue Authority”, “Constitution”, “Gazette”, “Government”,
“Government securities”, “High Court”, “India”, “Indian law”, “Indian State”, “merged territories”, “Official
Gazette”, “Part A State”, “Part B State”, “Part C State”, “Provincial Government”, “State”, and “State
Government” shall apply, unless there is anything repugnant in the subject or context, to all Indian laws.
(2) In any Indian law, references, by whatever form of words, to revenues of the Central Government or to any
State Government shall, on and from the first day of April, 1950, be construed as references to the Consolidated
Fund of India or the Consolidated Fund of the State, as the case may be.
GENERAL RULE OF CONSTRUCTION

Section 5 to 13 of the Act contain provisions relating to general rules of construction. Section 5 to 8 dealing with the
commencement and repeal of enactments. Section 9 to 13 deals with certain matters of detail, such as, time,
distance, rate of duty, gender, and number, and the like
Coming into operation of enactment (Section 5)

(1) Where any Central Act is not expressed to come into operation on particular day, then it shall come
into operation on the day on which it receives the assent-
(a) in the case of a Central Act made before the commencement of the Constitution, of the Governor
General, and
(b) in the case of an Act of Parliament, of the President.
(3) Unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into
operation immediately on the expiration of the day preceding its commencement
RETROSPECTIVE AMENDMENT
1) The law is to be enforced from the date which is mentioned in law.
2) If no date is mentioned in the law, such law will be enforced from the date it received the assent of
president.
3) The regulations made by the president under article 240 and 242 or by Central Government, such
regulation shall come into force on the ending of the day prior to its commencement, unless a
specific date is mentioned.
4) If the Government repeals any act, then such repeal shall not (effect of repeal under section 6) :
a) Renew anything which was not enforced, during the repeal period.
Example: The provisions of law that were not enforced during the period when the Act was
enforceable, the same acts can not be done during the repeal period.
b) Affects the acts that were done prior to repeal.
c) Affect any claim, responsibility, suit, appeal, privilege, which was initiated or done prior to
repeal.
d) Affect any punishment, enquiry, investigation or litigation which was initiated prior to repeal.
e) If any reference is given in any law to the provision that has been repealed, then it shall be
considered that such repealed provision has been re-enacted.
6) If any legal procedure or regulation is ordered or permitted to be performed in the court on any fix
date and on such date the court is not open or does not function then it shall be considered that the
order of the court has been followed if it is performed on the next day when the court reopens.
The below mentioned powers and functions will be exercised by Central Government or by any person or
body of persons or any authority authorized by Central Government and these powers are given to
Central Government by the Central Act.
Que: Discuss the effect of repeal under Section 6 of General Clauses Act, 1897
Repeal of Act making textual amendment in Act or Regulation (Section 6A)

Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the
text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter,
then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made
by the enactment so repealed and in operation at the time of such repeal.
At one time doubts appear to have been entertained as to whether the repeal of an Act which had altered the
wording of an earlier Act, did or did not have the effect of restoring the original wording.
To remove the doubt, section 6A was inserted by an amendment in 1936. The law on this subject, however, is fairly
clear and such doubts appear to have been needlessly entertained.
This section refers only to enactments making amendments which are textual amendments.
The word “text” in its dictionary meaning means “subject or theme”. When an enactment amends the text of
another, it amends the subject or theme of it, though it may sometimes expunge unnecessary words without
altering the subject. In Jethananad v. The State of Delhi, it was held that the word “text” is comprehensive enough to
take in the subject as well as the terminology used in a statute.
Revival of repealed enactment (Section 7)
(1) In any Central Act or Regulation made after the commencement of this Act, it shall be necessary, for the purpose
of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose.
(2) This section applies also to all Central Acts made after the third day of January, 1868, and to all Regulations made
on or after the fourteenth day of January, 1887. Under this section, if any enactment is repealed wholly or partially
and if any part of the repealed enactment is sought to be revived, then, it is necessary to state the purpose of doing
so specifically. In other words, to revive a repealed statute, it is necessary to state an intention to do so.
Construction of references to repealed enactment (Section 8)

(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-
enacts, with or without modification, any provision of a former enactment, then references in any other enactment
or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as
references to the provision so re-enacted.
(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-
enacted, with or without modification, any provision of a former enactment, then references in any Central Act or in
any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as
references to the provision so re-enacted.
Commencement and termination of time (Section 9)
(1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose
of excluding the first in a series of days or any other period of time to use the word “from”, for the purpose of
including the last in a series of days or any other period of time, to use the word “to”.
on or after the fourteenth day of January, 1887
Computation of time (Section 10)

(1) Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is
directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if
the Court or office is closed on that day or the last day of the prescribed period, the act or proceedings shall be
considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office
is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act,
1877, applies.
(2) This section applies also to all Central Acts or Regulations made on or after the fourteenth day of January, 1887.
Section 10 provides that where any act or proceeding is directed or allowed to be done or taken in any court or
office on a certain day or within a prescribed period, and the court of office is closed on that day or on the last day of
the period, the act or proceeding can be done or taken on the next day afterwards on the Court or office is open
Measurement of distances (Section 11)

In the measurement of any distance, for the purpose of any Central Act or Regulation made after the
commencement of this Act, that distance shall, unless a different intention appears, be measured in a straight line
on a horizontal plane.
Duty to be taken pro rata in enactments (Section 12)

Where, by any enactment now in force or hereafter to be in force, any duty of customs or excise, or excise, or in the
nature thereof, is leviable on any given quantity, by weight, measure or value of any goods or merchandise, then a
like duty is leviable according to the same rate on any greater or less quantity
Gender and number (Section 13) In all Central Acts or Regulations, unless there is anything repugnant in the subject
or context-
(1) words importing the masculine gender shall be taken to include females; and
(2) words in the singular shall include the plural, and vice versa.
Powers conferred to be exercisable from time to time (Section 15)
Section 14 provides that, where by any Central Act or Regulation made after the commencement of this Act, any
power is conferred, then, unless a different intention appears, that power may be exercised from time to time as
occasion arises.
Power to appoint to include power to suspend or dismiss (Section 16) Where, by any Central Act or Regulation, a
power to make any appointment is conferred, then, unless a different intention appears, the authority having for the
time being power to make the appointment shall also have power to suspend or dismiss any person appointed
whether by itself or any other authority in exercise of that power
Substitution of functionaries (Section 17)
(1) In any Central Act or Regulation, made after the commencement of this Act, it shall be sufficient, for the purpose
of indicating the application of a law to every person or number of persons for the time being executing the function
of an office, to mention the official title of the officer at present executing the functions, or that of the officer by
whom the functions are commonly executed.
on or after the fourteenth day of January, 1887.
Successors (Section 18)

Section 18 provides that in any Central Act or Regulation made after the commencement of this Act, it shall be
sufficient, for the purpose of indicating the relation of a law to the successors of any functionaries or of corporations
having perpetual succession, to express its relation to the functionaries or corporations.
Official’s chiefs and sub-ordinates (Section 19)

In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of
expressing that a law relative to the chief or superior of an office shall apply to the deputies or subordinates lawfully
performing the duties of that office in the place of their superior, to prescribe the duty of the superior.
Construction of notifications, etc., issued under enactments (Section 20)
Where, by any Central Act or Regulation, a power to issue any notification, order, scheme, rule, form, or bye-law is
conferred, then expressions used in the notification, order, scheme, rule, form or bye-law, if it is made after the
commencement of this Act, shall, unless there is anything repugnant in the subject or context, have the same
respective meanings as in the Act or Regulation conferring the power.
Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws (Section
21) Where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred,
then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if
any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.
Making of rules or bye-laws and issuing of orders between passing and commencement of enactment (Section 22)
Where, by any Central Act or Regulation which is not to come into force immediately, on the passing thereof, a
power is conferred to make rules or bye-laws, or to issue orders with respect to the application of the Act or
Regulation, or with respect to the establishment of any court or office or the appointment of any Judge or officer
thereunder, or with respect to the person by whom, or the time when, or the place where, or the manner in which,
or the fees for which, anything is to be done under the Act or Regulation, then that power may be exercised at any
time after the passing of the Act or Regulation; but rules, bye-laws or orders so made or issued shall not take effect
till the commencement of the Act or Regulation.
Provisions applicable to making of rules or bye-laws after previous publication (Section 23)
Where, by any Central Act or Regulation, a power to make rules or bye-laws is expressed to be given subject to the
condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply,
namely,-
(1) the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the
proposed rules or bye-laws for the information of persons likely to be affected thereby;
(2) the publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with
respect to previous publication so requires, in such manner as the government concerned prescribes;
(3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into
consideration;
(4) the authority having power to make the rules or bye-laws, and, where the rules, or bye- laws are to be made with
the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or
suggestion which may be received by the authority having power to make the rules or bye-laws from any person
with respect to the draft before the date so specified;
(5) the publication in the Official Gazette of a rule or bye-law purporting to have been made in exercise of a power to
make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly
made
Continuation of orders, etc. issued under enactments repealed and re-enacted (Section 24) Where any Central Act
or Regulation, is, after the commencement of this Act, repealed and re-enacted with or without modification, then,
unless it is otherwise expressly provided any appointment, notification, order, scheme, rule, form or bye-law, made
or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted,
continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until
it is superseded by any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the
provisions so re-enacted and when any Central Act or Regulation, which, by a notification under section 5 or 5A of
the Scheduled Districts Act, 1874, or any like law, has been extended to any local area, has, by a subsequent
notification, been withdrawn from and re-extended to such area or any part thereof, the provisions of such Act or

Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this
section.
Recovery of fines (Section 25) Sections 63 to 70 of the Indian Penal Code and the provisions of the Code of Criminal
Procedure for the time being in force in relation to the issue and the execution of warrants for the levy of fines shall
apply to all fines imposed under any Act, Regulation, rule or bye-law, unless the Act, Regulation, rule or bye-law
contains and express provision to the contrary.
Provision as to offences punishable under two or more enactments (Section 26)

SECTION 26 – A Person Punishable Under 2 Laws’
Section 26 of the General Clauses Act 1897, deals with offences punishable under two or more
enactments. According to this section, where an act or omission creates an offence under two or more
enactments, then the offender shall be liable to be prosecuted and punished under either or any of those
enactments, but shall not be liable to be punished twice for the same Offence.
The Supreme Court observed in the case of Baliah v. Rangachari , a plain reading of section 26 shows
that there is no restriction on the trial or conviction of an offender under two enactments, but there is
only a bar to the punishment of the offender twice for the same offence.
In other words, the section provides that where an act or omission constitutes an offence under two
enactments, the offender may be prosecuted and punished under either or both the enactments but shall
not be liable to be punished twice for the same offence.
(means as per Supreme Court we can prosecute the offender under both laws but we have to ensure that
for the same act he is not punished twice)
Que: Discuss the provision as to offences punishable under two or more enactments as stated under Section 26 of
the General Clauses Act, 1897.
Meaning of service by post (Section 27) Where any Central Act or Regulation made after the commencement of this
Act authorizes or requires any document to be served by post, where the expression “serve” or either of the
expressions “give” or “send” or any other expression is used, then, unless a different intention appears, the service
shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing
the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be
delivered in the ordinary course of post.
Meaning of service by post (Section 27) Where any Central Act or Regulation made after the commencement of this
Act authorizes or requires any document to be served by post, where the expression “serve” or either of the
expressions “give” or “send” or any other expression is used, then, unless a different intention appears, the service
shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing
the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be
delivered in the ordinary course of post.

CHAPTER: 5
ADMINISTRATIVE LAW
JO KANNON SARKAR KO SHAKTIYAN DETE HAI,
WO KANOON ADMINISTRATIVE LAWS KAHLATE HAI!
Administrative laws are the laws that defines
roles, powers, obligations and functions of
government and its office.
It is the law that deals with functions of
Government towards the public.
As per Kenneth Culp Davis, an American
scholar, the administrative laws are the laws
that deals with the powers and functions of the
government bodies except the court and law
making bodies.
(Sarkar apni zimmedariya public ke liye kaise
discharge karegi yeh administrative laws batate
hai)
As per Albert Venn Dicey:- Administrative laws

determine legal status and liabilities of all the
state officials who define the rights and
liabilities of private person when they deal with
state officials.
The definition given Albert Venn Dicey is very narrow in scope as the employees of government
Corporations are not covered in definition.
SARKAR KO KAISA CHALANA CHAHIYE APNA KAAM KAAJ,
YEH BATATE HAI, ADMINISTRATIVE LAWS
Ivor Jennings defined administrative law as the law relating to administration. It determines the
organization, powers and duties of administrative authorities. This formulation is too broad and general
as it does not differentiate between administrative and constitutional law. It excludes the manner of
exercise of powers and duties.
Administratve Law deals with the following Matters:

 Who are the administrative authorities?
 What are the powers exercised by those authorities?
 Procedure to be followed while using the power.
 What are the remedies available if fundamental rights are affected by administrative laws?
 What limits are to be followed while exercising the powers.
NEED FOR ADMINISTRATIVE LAW

Three main organs or parts of legal system:-
A. Legislative :- which makes laws
B. Executive :- which implements laws
C. Judiciary:- which makes sure that the laws are implemented in a correct manner.

At present due to lack of time with the above institutions we have seen the government bodies do not
discharge their functions in a proper manner and the court are also not able to timely direct the
government to discharge its duties in a correct manner.
The solution is to make good administrative laws that clearly defines the powers, functions and
obligations of the government towards the citizens.
(Solution yahi hai ki aise laws bana digiye jis se Sarkar ke upar jimmedari aaye, so jo kanoon Sarkar ke
upar ximmedari dalte hai unhe hum administrative laws kah te hai)
For example:- The Government officers did not share information with the public and every citizen did
not have resources to approach the court, to get an order which directs the government to provide a
particular information and hence the parliament of India passed a Right to Information Act, which
ensures that information are shared by public authorities.
Government ne Band kar diya, Apni duties ko sahi tareeke se karna Discharge,
Isliye Hame Chaiye, Administrative Laws
As the State does not have only the duty to protect its citizens but also has various other duties towards
the citizens, so administrative laws are needed so that the states are in the position to better discharge
their duties towards the citizen.
Development produces great economic and social changes and creates challenges in the field of health,
education, pollution, inequality etc. These complex problems cannot be solved except with the growth
of administration. States have also taken over a number of functions, which were previously left to
private enterprise. All this has led to the origin and the growth of administrative law.
We need administrative laws as the 3 organs of the state i.e the Legislative (the body that makes the
laws) is not able to make good quality laws due to limitation of time and the other factors. Second is
Executive, i.e the Government whose duty is to implement the law is also not able to implement the
laws in correct manner. Third is Judiciary, which has become much expensive and time consuming.
So due to all these factors, study of administrative laws has become much more important.
The Administration Deals with:

1. It makes policies,
2. It executes, administers and adjudicates the law
3. It exercises legislative powers and issues rules, bye- laws and orders of a general nature.
(Administration means Government – so Government ka kaam hai, Policy banana + law apply karna +
legislative power bhi discharge karna jaise ki rules aur regulations banana)
The Purpose of Administrative Law is to make sure that the citizens are not aggrieved by the action of
administration.
Lets Check more features of administrative laws:

a. The increasing administrative functions have created a new complex (area) of relation
between administration and citizen.
b. As the purpose of providing powers to administration is to improve the life of citizens, so
it must be ensured that the administration does not violate the rights of the citizens.
c. There has always been a conflict between individual liberty and Government control, as
exercise of Government control affects the liberty of the individuals. So there has to be a
check to maintain a balance between the prevate interst and government which
represents the public interest.
d. It is the demand of the people that there has to be a check on the powers of the
Government s that the Government does not exercise its powers for unwarranted or
unneeded purposes.
e. The task of administration law is to ensure that the Government functions are exercised as
per legal prinicples and as per rules and resosns of justice.
f. If an individual is aggrieved by administrative action, he gets a redressal or remedy.
g. There is no antithesis (difference or contradiction) between effective Government and
control of administrative powers, which means effective government can be ensured by
having a control on administrative powers. Administrative powers are exercised by by
many government employees so if it is controlled properly it will result in effective
Government.
h. The careful and proper study of administrative law becomes desideratum (need) as the
administrative law apart from providing powers to administration also controls the
administration.
SOURCES OF ADMINISTRATIVE LAW

ISMAIN HUM PADHENGE KI ADMINISTRATION KO
KISNE POWER DIYA LAW BANA NE KI
There are 4 main sources of administrative laws:-
It means from these 4 sources the roles and responisibilities of Administration is fixed or roles and
reponisibilites of the Govt. departments is defined.
1. CONSTITUTION OF INDIA
The constitution of India imposes many duties on the state:-
Through directive principles
Through distribution of power between union and

state by way of list
The constitution also provides fundamental rights to

the citizen.
The government has to protect the fundamental rights of the citizen. Some Scholers believe that there is
no difference between constitutional law and administrative law as both are concerned with the
functions of the Government. But some Scholers believe that constitutional law describes various organs
of the Government and administrative law describes how these functions will be exercised.
2. ACTS AND STATUTES
Various laws which are passed by Indian legislature contain the roles and functions of the government.
Such laws relate to economy, taxation, security etc.
3. ORDINANCE DIRECTIONS AND NOTIFICATIONS
Ordinances are the laws that are passed by the president of India when the legislature is not in session.
The ordinances allow the administration to take necessary steps to deal with such developments.
Administrative directions, notifications and circulars are issued by the executive in the exercise of power
granted under various Acts.
4. JUDICIAL DECISION
Whenever there is dispute between the citizens and the government before the court, the court decides
the matter and after considering the case the court by its order fix the responsibility for the
government.
ADMINSITRATIVE DISCRETION
Sarkar ki power khud ke iccha se law bana ne ki aur kaam karne ki
As framing laws for every function of the government and
its officer is not practically possible so the government
and its officers while discharging their function exercise
administrative discretion.
Discretion allows the government officers to choose the
best alternative amongst the available alternative.
When the discretion is exercised:

Even if the administration is dealing with a problem on a case to case basis it can change its approach according to
the demand of situation and the demands of justice.
The government cannot function without the exercise of some discretion by its officials. It is necessary because it is
humanly impossible to make a rule for every conceivable eventuality that may arise in day-to-day affairs of the
government. It is, however, equally true that discretion is likely to be abused.
Que: The biggest check over administrative action is the power of judicial review. Elaborate
It should be It should not It should not

exercised in be against be biased
good faith constitution or
any law for
time being in
force
JUDICIAL CONTROL OVER ADMINSITRATIVE ACTION

Court hamesha sarkar ke kam main kadi karta hai
In India, the judiciary controls over the administrative functions in the following manner:
Through constitution Through statutes In ordinary or equitable
Done in 2 stages: manner
A) At the time of
delegation of discretion
B) At the time of
exercise of
administrative
discretion
1) Through constitution -
Constitution is the supreme document that rules the entire country. All the organs of government get
their power from constitution. The constitution of India grants power to the legislature to enact the
various laws.
The court decides whether a laws is constitutional or not & If the court believes that laws is
unconstitutional then the court may declare such laws as void. This process is known as Doctrine of
judicial review which was established by Supreme Court of America.
The Court scrutinizes the executive act for determining the issue as to whether it is within the scope of
authority or power conferred on the authority exercising the power.
The Courts attitude appears to be stiffer in respect of discretionary powers of the executive or administrative
authorities. The Court is not against the giving of discretionary power in the executive, but it expects that there
would be proper guidelines for the exercise of power.
The Court interferes when the uncontrolled and unguided discretion is vested in the executive or administrative
authorities or the repository of the power abuses its discretion
Any law which is Ultra virus the constitution is void.

When any uncontrolled or misguided discretion is exercised by administration or executive the court
interferes.
In case of Mansukh Lal Vitthaldas chouhan VS state of GujaratSupreme Court decided that when the
Supreme Court makes a judicial review it does not sit as a court appeal but merely reviews, whether the
decision was taken in a correct manner. The court lacks expertise to correct the administrative decision.
THE COURT JUST CHECKS THE LEGALITY.
The Supreme Court decides –

1) Whether the power are exceeded by the administration
2) Whether there is error of laws
3) Whether principle of Natural justice was ignored.
4) Whether the power is abused
5) A decision is made which should have not been made.
Judicial reviews is done in 2 stages

A) At the time of delegation of discretion – Jab kisi law ke andar Sarkar ko powers milti hai
B) At the time of exercise of administrative discretion – jab Sarkar apni powers ko exercise karti hai!
A) At the time of delegation of discretion
When the laws delegate the discretion to administrative body, the judicial reviews is made in the
following manner:
Any law can be challenged on the ground that it is violative of the Constitution and therefore laws giving
or conferring administrative discretion can thus also be challenged under the Constitution. If any law is
vague & provides wide discretionary powers to the administration then the courts can declare such law
as void.
(kahi Sarkar ko milne wali power se constitution ko to nuksaan nai hora hai)
In some cases or under some laws, Statutory power is not given to administrative authorities but the
power of making rules is given to the administrative authorities through which the authority may affect
the rights of the citizens. The court can control such power of making rules.
The fundamental rights provide a basis to the judiciary in India.
Article 14 prevents unreasonable discretion given to the’ Executive’
In many cases, laws have been challenged on the ground that it violates article 14 of constitution of
India. When the administration exercises any discretion the court consider whether the classification is
valid or not.
In the case of State of west Bengal vs Anwar Ali sarkar the government had formed special courts for
special category of offences to try such offence in speedy manner. However such special courts were
challenged on the ground that they violate the article 14.
The supreme court decided that the formation of special courts is not the right classification& is against
article 14.
Article 19 of constitution gives various power to the citizen ( Freedom of speech & expression,
association business, residence) & the article also allows the parliament to put a reasonable restrictions
on such rights / power of citizens.
So whenever the administrative actions unreasonably restrict any person to exercise the right given
under article 19, the court can declare such action as void.
In the case of HR Banthis VS Union of India,

The government passed law& required license for making a trading in gold. The Supreme Court declared
this action of government as invalid as it violates the freedom of business& found it unreasonable.
In a large number of cases, the question as to how much discretion can be given to the executive to control and
regulate trade and business has been raised. The general principle is that the power conferred on the executive
should not be arbitrary, and that it should not be left entirely to the discretion of any authority to do anything it likes
without any check or control by any higher authority
In Hari VS. Deputy Commissioner of Police, the Supreme Court justified the validity of section 57 of the
Bombay Police Act authorizing any of the officers specified therein to extern convicted persons from the
area of his jurisdiction if he had reasons to believe that they are likely to commit any offence similar to
that of which they were convicted. This provision of law, which apparently appears to be a violation of
the residence, was upheld by court mainly on the considerations that certain safeguards are available to
the extern, i.e., the right of hearing and the right to file an appeal to the State Government against the
order.
B) At the time of exercise of administrative discretion

This review will be made by the court when the administrative discretion in exercised:
The court will interfere when:

1) Authority has not exercised the discretion property - Abuse of discretion
2) When the authority does not exercise any discretion – Non application of Mind
In the following cases it will be considered that the authority has abused the discretion :
A) When the authority acts with the malafide intention. Malafide (bad faith) may be taken to mean
dishonest intention or corrupt motive. In relation to the exercise of statutory powers it may be said to
comprise dishonesty (or fraud) and malice. In relation to the exercise of statutory powers it may be said to
comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if it intends to achieve an object other
than that for which he believes the power to have been conferred.
Tata cellular vs Union of India, In this case, in one of the tenders invited by the Government, lower bid
was not accepted by the Government, the aggrieved party approached the court & the court cancelled
the tender on the ground that it violated article 14.
B) Irrelevant consideration -:
POWER DI KISI KAM KE LIYE MILI,
USE KISI AUR KAAM KE LIYE KIYA!
When the power given for one purpose is exercised for the other purpose, the court can interfere and
cancel the decision of the Government. In the case of State of MP Vs Ram Shankar, the services of
Governemnt teacher were terminated on the ground that he had taken part in RSS and Jan sangh
Activities, Suprement Court decided that taking away employment on account of political ideology will
violate his article 14 and 16 of Consitution. Hence the order of Government was set aside on account of
irrelevant consierations.
C) Leaving relevant consideration: - when the government authority takes any decision on the basis of
any irrelevant facts, the court can interfere.
D) Arbitrary orders: - If the government takes any decision without any sound reason court can
interfere.
In case of Air India Vs Nargesh Mishra, the Air India (When Air India was Government Undertaking)
framed a regulation providing for termination of services of air hostess on her first pregnancy, this
regulation was challenged in the Coiurt and Court held it to be arbitrary and unreasonable.
E) Improper purpose – If the government passes any order for improper purpose or without any purpose
or object the court can interfere.
In the case of Nalini Mohan Vs District Magistrate, the law provided powers to the District Magistrate to
rehabilitate the persons displaced from Pakistan as a result of communal violence, however the power
was exercised to accommodate the persons who had come from Pakistan on medical leave. The order of
district magistrate was set aside by the Supreme Court.

F)Ignorance of Principal of Natural Justice: When the administrative discretion is exercised without
complying the rule of natural justice, the court can interfere. The principal of natural justice must be
observed and the person concerned must be heard.
G) Beyond the Powers: When the administrative action is beyond the power of administration, it is ultra
vires and the courts can declare it void.
2) In the following cases the court will interfere on the ground that the authority does not exercise
its jurisdiction – Non application of mind by the executive.
A) ACTING UNDER DICTATION
JAB SARKAR BINA DIMAK LAGAYE KISI KE ORRDER KE ANDAR KAAM KARE
When the government acts under the direction of superior authority, without application of its own
mind, the court can interfere.
Commissioner of police VsGowardhan Das Bhanji
In this case, the commissioner of police was authorised to cancel the petroleum Licenses, the
commissioner of police on the order of state government passed order & cancelled license without
applying his own mind. The court cancelled the decision of commissioner
B) Self Restriction: Sometime an authority restricts itself from taking an action on account of some rigid
rules or procedure made by such authority as result of which no action is taken, the court can interfere
& cancel such rigid rules. The authority entrusted with the discretionary power is required to exercise it after
considering the individual cases and the authority should not imposes restrictions or fetters on its discretion by
adopting fixed rule of policy to be applied rigidly to all cases coming before it. For example if the Government Makes
a rule that for having a passport a person needs to clear some kind of current affairs exam, this might be considered
as a self restriction by fixing some rule and it can be challenged.
C) Acting mechanically without due Care - When the government authority acts mechanically without
any due care, the Court can interfere.
2) THROUGH STATUES:
Many laws that are passed may contain provisions for making an appeal to the high court or Supreme
Court or a reference to the high court or Supreme Court in different situation so indirectly the
administrative action under any statute is reviewed by the high court or Supreme Court
Eg – If any party is not satisfied with the decision given by SAT (Securities appellate tribunal) then such
party may prefer an appeal to the Supreme Court as per SEBI ACT 1992
The method of statutory review can be divided into two parts:

Statutory appeals: There are some Acts, which provide for an appeal from statutory tribunal to the High Court on
point of law. e.g. Section 30 of Workmen’s Compensation Act, 1923
Reference to the High Court or statement of case: There are several statutes, which provide for a reference or
statement of case by an administrative tribunal to the High Court. Under Section 256 of the Income-tax Act, 1961
where an application is made to the Tribunal by the assessee and the Tribunal refuses to state the case the assessee
may apply to the High Court and if the High Court is not satisfied about the correctness of the decision of the
Tribunal, it can require the Tribunal to state the case and refer it to the Court.
3) ORDINARY OR EQUITABLE REVIEW BY THE COURT –

If any injustice is done to any party due to administrative action such party can approach the court & the
court may, through injunction stop the administrative action.
TYPE OF EQUITABLE REVIEWS

JAN HIT MAIN COURT SARKAR KE KANOONON
KA AANKLAN KARTA HAI!
Injunctions:
An injunction is a preventive remedy. It is a judicial process by which one who has attacked or is threatening to
attack the rights of another is restrained from continuing or commencing such wrongful act.
In India, the law with regard to injunctions has been laid down in the Specific Relief Act, 1963.
Injunction is issued for restraining a person to act contrary to law or in excess of its statutory powers. An injunction
can be issued to both administrative and quasi-judicial bodies. Injunction is highly useful remedy to prevent a
statutory body from doing an ultra vires act, apart from the cases where it is available against private individuals e.g.
to restrain the commission or torts, or breach of contract or breach of statutory duty. Injunction may be prohibitory
or mandatory
1) PROHIBITORY INJUNCTION
Prohibitory injunction forbids the defendant to do a wrongful act, which would infringe the right of the
plaintiff. A prohibitory injunction may be interlocutory or temporary injunction or perpetual injunction.
a)Temporary or interlocutory injunction:-

This injunction is passed during the procedure these injunctions will become void as soon as final
decision is passed by the court.
b) Permanent Injunction:-
When the court has finally heard the case & after such hearing the court passes it‘s decree in the form of
an injunction, it may or may not have perpetual effect, which is valid for a period as mentioned In such
decree, however the parties may apply for the extension of time or till the time up to which the
defendant complies with the injunction passed by the Court. The operation of injunction may be
suspended for a period when the defendant is given a time to comply with the conditions of such
injunction. Such injunction is called as permanent Injunction.
c) Mandatory injunction: -
When in order to prohibit the negative acts the court orders a party to do some affirmative acts which
the court can enforce such kind of injunction are referred to mandatory injunction.
2) DECLARATORY INJUNCTION
Whenever any wrong is done to any party the court can make a declaration & declare the right &
liabilities of the parties. The declaration made by the court will be valid only against the party for whom
such declaration is made by the court.
Declaration may be taken as a judicial order issued by the court declaring rights of the parties without giving any
further relief. Thus a declaratory decree declares the rights of the parties. In such a decree there is no sanction,
which an ordinary judgment prescribes against the defendant. By declaring the rights of the parties it removes the
existing doubts about the rights and secures enjoyment of the rights. It is an equitable remedy. It is a discretionary
remedy and cannot be claimed as a matter of right.
e.g. (Declaratory decree covered under specific relief act)
3) Damages:
The court can award damages, when any wrongful loss is caused to citizens due to the Acts of
Government Servants.
The Principal of Natural Justice
BINA SUNE KISI KO DOSHI MAT MANO,

BIASED BEHAVE KISI KE SATH KARNE KI MAT THANO,
BAS YAHI HAI NATURAL JUSTICE.
The principle of natural justice is followed since ages & is the core of legal system of any country it
ensures fair legal procedure for all. It was followed under common laws also. The principle of natural
justice ensures that the people have faith in the judicial system of the country.
In the constitution of India article 14& article 21 minimum procedures are given that the court should
follow at the time of exercising its jurisdiction.
In any law the word natural justice is not defined however every laws whether directly or indirectly
provides natural justice to the citizens
At the time of passing decision every court as well as quasi-judicial bodies must abide by the principle of
natural justice.
The principle of natural justice contain two rules

Rule against bias - Nemojudax in causasua
Rule of hearing - ‗‘Audi aaltrempartem ‗‘
RULE AGAINST BIAS

AGAR AAP KISI CASE MAIN RUCHI RAKTE HO,
TO KRIPYA KAR KE US CASE KE JUDGE MAT BANIYE
No person should become judge in his own case which also means the judge should not have any personal
interest in the case. Bias means an operative partiality whether conscious or unconscious in relation to a
party or issue. It is a presumption that a person cannot take an objective decision in a case in which he
has an interest. The rule against bias has two main aspects- one, that the judge must not have any direct
personal stake in the matter at hand and two, there must not be any real likelihood of bias.
Bias can be of three types:
a) PECUNIARY BIAS:- It means the judge has a financial interest in the case. Thus a pecuniary interest,
howsoever insufficient, will disqualify a person from acting as a Judge. (judge ka kisi tarah ka paise ka
lalach)
In the case of Manek Lal Vs Prem Chand, it was decided that, pecuniary interest, however small, will
wholly disqualify a person from acting as Judge.
In the case of Anna Malai Vs State of Madras, the member of Regional Transport Authority issued a
transport permit in his own favor and later on transferred the permit to his son in law, however the
Court quashed the transport permit on the ground of natural justice.
b) PERSONAL BIAS:- in this kind of bias any party to the case may be related to the judge. He may be
friend of the party, or related to him through family, professional or business ties. The judge might also
be hostile to one of the parties to a case. All these situations create bias either in favour of or against
the party and will operate as a disqualification for a person to act as a Judge. (personal jhagda ya pyar)
CASE LAW: Mineral Development Coporation Ltd V State of Bihar
In this case the mining minister of Bihar cancelled the Mica License of petitioner, the court declared the
decision of mining minister of Bihar as Void, on the ground that the petitioner had a rivalry with the
mining minister, and state of Bihar did not observe the Principle of Natural Justice.
In the case of Manek Lal Vs. Prem Chand, a person had filed a case against the defendant on account of
professional misconduct in the High Court. The Chief Justice of the High Court appointed a council
tribunal to enquire in the matter. The tribunal had a chairman who had represented the plaintiff in past
and also it appeared that the chairman had forgotten the fact that he had represented the petitioner in
past. The matter reached Supreme Court and there was no real likelihood of bias, yet Chairman was
disqualified to conduct the inquiry on the ground that justice not only be done but must appear to be
done to the litigating public. Actual proof of prejudice was not necessary; reasonable ground for
assuming the possibility of bias is sufficient.
C) SUBJECT MATTER BIAS

CASE MAIN TO NAHI, PAS JIS CHEEZ KE UPAR JHAGDA HAI,
US MAIN INTEREST HAI JUDGE KA

In this kind of bias the judge has a connection in the subject matter of the litigation. The connection in
the subject matter can be divided in 4 categories:
Partially connected to Departmental bias. Pre judgement of the Acting under dictation.
the issue (subject Ex. Judge has some issue. Ex. Judge is acting
matter) personal conflicts with Ex. Before the under direction of any
Example: One of the the department, which conclusion of hearing superior Authority who
Properties of Judge‘s is involved in the case. the Judge has made an has an interest in the
relative is involved in In the case of State of opinion. subject matter.
the case. UP VS RS Sodhi, the
State Government by
an order authorized the
police department to
enquire in to fake
encouters when the
allegations were made
on the local police, the
Supreme Court found it
to be the case of
departmental bias and
ordered CBI to make
enquiry.
2) RULE OF HEARING
The second principle of natural justice is audi alteram partem (hear the other side) i.e. no one should be
condemned unheard. It requires that both sides should be heard before passing the order. This rule
implies that a person against whom an order to his prejudice is passed should be given information as to
the charges against him and should be given opportunity to submit his explanation thereto. Following are
the ingredients of the rule of fair hearing:
Following are the ingredients of rule of hearing:-
a) Notice to the affected party

The court shall issue a notice of the court proceedings to the opposite party, so that the opposite can
put his point of view before the court. Unless a person knows the case against him, he cannot defend
himself. Therefore, before the proceedings start, the authority concerned is required to give to the
affected person the notice of the case against him. The notice is required to be served on the concerned
person properly. However, the omission to serve notice would not be fatal if the notice has not been
served on the concerned person on account of his own fault.
The notice must give sufficient time to the person concerned to prepare his case. Whether the person
concerned has been allowed sufficient time or not depends upon the facts of each case. The notice must
be adequate and reasonable. The notice is required to be clear and unambiguous.
b) Right to present the case and evidence

Every party has a right to present its case before the court and it can also give evidences in support of its
pleading. The reply is usually in the written form and the party is also given an opportunity to present
the case orally though it is not mandatory.
C) right to rebfute adverse evidence –For the hearing to be fair the adjudicating authority (Court) is not
only required to disclose to the person concerned, the evidence or material to be taken against him, but
also to provide an opportunity to refute the evidence or material. Such opportunity is given through:
1) Cross Examination:
Examination of a witness by the adverse party is called cross-examination. The main aim of cross-
examination is the detect falsehood in the reliability of the witness. The rules of natural justice say that
evidence may not be taken against a party unless the same has been subjected to cross-examination or
at least an opportunity has been given for cross examination
2) Legal Representation:
Providing of right of legal representation ais generally not considered as essential part of fair hearing.
However in the cases where case involves a question of law or matter which is complicated and technical
or where the person is illiterate or expert evidence is on record or the prosecution is conducted by
legally trained persons, the denial of legal representation will amount to violation of natural justice. So
in these case the parties must not be deprived of the right of legal representation.
D) Disclosure of evidence:- the party against whom any evidence is relied shall be given a full
opportunity to explain the evidence which is relied, against him
E) Speaking orders:-
ORDER ITNA CLEAR HONA CHAHIYE,
KI MATRA PAD KAR SAMAJ MAIN AAJAYE KI KYA HAI ORDER
The orders passed by the court must be with full reasons & justifications on the basis of which the order
was passed. When the adjudicatory bodies give reasons in support of their decisions, the decisions are
treated as reasoned decision. It is also called speaking order. In such condition the order speaks for itself
or it tells its own story. Reasoned decision introduces a check on the administrative powers because the
decisions need to be based on cogent reasons. It excludes or at least minimizes uncertainty.
In the case of Sunil Batra VS Delhi administration,The jail superintendent passed an order for hand
fetters to a prisoner without any reason the court declared the order of superintendent as invalid as it
violated the article 21 of constitution of India.
Exception to the rule of natural justice :-

In the below mention cases the rule of Natural justice may be ignored
1) Statutory exception:-
There may be a law that provides for exclusion of the principle of natural justice but in those cases also,
the courts follow the principle of natural justice.
The parliament can pass a law& provide for exclusion of natural justice but when it comes to natural
justice the courts as bound by constitution will always follows the principle of natural justice while
deciding any case.
2) In case of emergency: - When a prompt decision is to be taken the principle of natural justice can be
ignored. In the cases where any prompt action is required due to an emergency situation, the
Administrative Authorities can ignore the principal of natural justice, in public interest or for the public
safety. However the said decision of the administrative authorities is not final and the court may review
such decision.
Maneka Gandhi vs union of india

In cases of emergency if passport is denied without following the principle of natural justice, on account
of public interest, post decisional remedy should be given to the party concerned. The Courts can review
the administrative action.
3) Interim disciplinary Actions

When interim disciplinary actions are taken, an opportunity of being heard is not required to be given.
For example, the order of suspension of an employee pending an inquiry against him is not final but
interim order and the application of the rules of natural justice is not attracted in the case of such
order.
Abhaykumar VS A.K. srinivasan

In this case a student was dismissed from collage till the time criminal enquiry was pending against him
without providing any opportunity of being heard. The court justified the decision of collage.
4) Academic Evaluation:- When a student is dismissed from collage for unsatisfactory academic
performance without following the principle of Natural justice, action of collage will be considered as
Justified.

5) Impracticability:- When there are many persons & it is impracticable to listen to everyone.
P. Radhakrishna VS Osmania university

In this Case exam was cancelled on the ground of mass copying & no opportunity of being heard, was
given to the students, Court Justified the action.
EFFECT OF FAILURE OF NATURAL JUSTICE

Natural justice follow kiye bina koi decision pas kiya
to kya hoga, void ya voidable
When an authority is required to observe natural justice in making an order fails to do so, should the
order made by it be regarded as void or voidable?
Void: it means the decision was never valid & it is void since beginning.
Voidable: It means the decision will be valid till the time it is cancelled by the Court.
The administrative decision should not be treated as void and nullity on the ground that natural justice
has been ignored & the party, against whom such decision is passed without following the principle of
Natural justice, has to approach the Court for getting such order cancelled.
Usually, a violable order cannot be challenged in collateral (where the order is not the main purpose of case but
related purpose) proceedings. It has to be set aside by the court in separate proceedings. Suppose, a person is
prosecuted criminally for infringing an order. He cannot then plead that the order is voidable. He can raise such a
plea if the order is void. In India, mostly the judicial thinking has been that a quasi-judicial (orders of administrative
authorities) order made without following natural justice is void and nullity.
Nawab khan vs State of Gujarat

In this case, Bombay police act authorised the police commissioner to extern any person. The police
commissioner passed an order & extern a person, however such person disobeyed such order on the
ground that principle of natural justice was ignored he was prosecuted by the court and acquitted. The
government appealed in high court. The high court said that the extern order was not void-ab-initio &
such order become void when person was acquitted by the court & such person should have followed the
order passed by the commissioners.
The matter reached Supreme Court and the Supreme Court declared the order of Commissioner as Void
ab initio on the ground that it is against article 19 of Constitution of India.
Que: Mr K was a convict and had undergone an imprisonment of 10 years on the charges of
“Decoity”. After serving the imprisonment, he received an order of commissioner of police for
externing him from the Pune District for a period of 15 days on account of coming elections.
However Mr K did not abbey the order on the gorund that he was not given any opportunity of being
herard and hence the principal of natural justice was ignored. Give Your opinon on the situation and
also state whether the order of commissioner of police is void or voidable and also give referece of
any case law.
LIABILITY OF THE GOVERNMENT
The government has two kinds of liabilities toward the citizen
A) Contractual
B) Tortious
A) Contractual:- The liability of the government that arises through the contract is referred as
contractual liability, the constitution allows the government of India to enter into contract however, the
contracts entered by the government will be valid if:
1) The contract should be in the name of president of India or the governor of state
2) It should be in writing
3) The authorised person must sign contract on behalf of the Governor or President.
The president or governor shall not be personally liable for the contracts, as per article 299(2) of
Constitution of India if such contracts were entered for the purposes of Constitution or for the purposes
of enactments relating to Government of India.
If the contract with the government becomes void the government should restore all the benefits
received by it under such contract as required by section 65 of Indian Contract Act
EFFECT OF VALID CONTRACT WITH GOVERNMENT
Initially, the court did not issue Writ of Mandamus for enforcing the contract entered by the government.
However in case of Gujarat state financial corporation vs lotus hotel, it was decided by the court that
writ of Mandamus can be applied for government contract & the government can be ordered to fulfil its
obligation under the contract.
In the case of Shrilekha Vidyarthi vs State of UP, The court decided that the government contract can
be reviewed under article 32 & 226 of constitution of India. The contract act 1872 applies on the
contracts entered by the government.
Que: Government owned financial institution promised by an agreement to advance a loan of Rs 25 Crore
to Mr L, however at the time of disbursement of the loan, the financial institution refused to grant the
loan on the ground that it is not having adequate funds, aggrieved by this Mr. L approached to the
Supreme Court and filed a writ petition, will Mr L Succeed?
QUASI CONTRACTUAL LIABILITY OF THE GOVERNMENT
If a person supplies goods& services non-gratuitously and such goods or services are received by
government under a mistake then under quasi contract it is duty of government to return such goods.
TORTIOUS LIABILITY OF THE GOVERNMENT

Tort means civil wrong for which damages may be claimed. When the government makes a breach of its
duties towards it‘s people , tort is committed.
The judicial or quasi-judicial acts done to protect the property will not create any tortious liability. The
government is protected from tortious liability while discharging any sovereign duty.
As per article 300 of constitution of India the government may be sued for the acts of its servant and
parliament or state legislature may make laws for it however no law has been made till now.
In the case of P.O. steam navigation v/s secretary of state it was decided that the state will be liable
for the tort committed by its employees.
State of Rajasthan v/s vidyavati, in this case the driver of the Government Jeep, which was used by the
Collector of udaipur, hit the person walking on the foot path by the side of public road, the injured
person died within 3 days in the Government Hospital. The representatives of the deceased sued the
Governemnt of Rajasthan and the driver and the High Court and the trial court found the driver guilty
and on appeal the Supreme Court also upheld the decisions of the High Court and the trial court.
The Supreme Court Stated the following points in the case:
1. Government will get immunity if tort takes place while discharging
sovereign functions.
2. In the United Kingdom also the principal that ―King Can do no Wrong‖ is not
followed as section 2(1) of Crown Proceedings Act, 1947 states that the
crown shall be liable for all the legal proceedings and liabilities if the torts
are committed by its servants or agents as per the provisions of this act.
3. In India we have more advanced system then the system established in
Crown Proceedings Act, 1947, by the provisions of Government of India Act,
1958.
4. In India since the time of East India Company the common law protection
(under common law it is assumed that state can never do wrong) to the
soverign was not operative as it was operative in UK on the basis of
principal that King can never do wrong.
5. In this case the Court did not follow the common law theory and held that
the Government will be vicariously liable for torts committed by its
servents.
However in many cases in order to provide remedy to the affected parties the court has decided most of
the government function are non-sovereign in nature.

The following functions of the Government are Soverign in Nature:
1) Administration of justice
2) Carrying on a war
3) Maintenance of order
4) Making of laws
5) Making international treaties
6) Repression of crime
In the case of state of Bihar Vs Abdul Majid, the Supreme Court decided that the Governemnt servant
has a right to sue the Government for the arrears of salary.
In the case of Kasturi Lal Vs state of UP, the stolen gold was recovered by UP police but the said gold
could not be recovered to its owner as one of the costables of UP police absconded with the gold. The
owner of the gold sued the UP Government, for the recovery of the gold or damages for the loss, the
matter reached to the Supreme Court and Supreme Court decided:
a. The gold was in the custody of constable.
b. Though UP Police Regulations were not complied in terms of holding the Gold but the gold was
in the coustody of the officer.
c. The act has been committed by the officer of the UP Governemnt during the course of his
employment.
d. The claim of petitioner (owner of gold) relates to sovereign powers but still Supreme Court in
this case did not make the Government Responsible, as it was a crime by the officer of the
Govenrment.
e. The Supreme Court also asked the legislature to make a law to fix up the liablities of the
Government servants.
Distinction between Sovereign and Non Sovereign Functions:
In the case of N. Nagendra Rao Vs State of Andhra Pradesh, the following principals were established
with regard to Sovereign and Non Sovereign Functions:
7. The Legilature by making laws can state the difference between Sovereign and
Non Sovereign Functions.
8. One of the test to determine sovereign function is to see, wheater state is
answerable for such actions in the Court, for example on the matters of
Defence, war, foregin affairs, power of acquiring and retaining any territory are
the functions for which the State is answerable in the Court so these functions
are sovereign in nature.
9. The state can not play or affect the rights citizens in unfair manner and take a
protection of sovereign function, in this case the Courts can interfear.
10. The state can not consider itself above law and play with rights of citizens in
unfair manner and take the protection of sovereign functions.
11. In a welfare state, the rights of citizens duties of the officers of the state is to
be reconciled.
12. Welfare state means:
a. The welfare state does not only defend the Country or administers
justice or maintains law and order but it also regulates and controls
activities of the people in every aspect such as educational,
commercial, social, economic, political, and marital.
b. No proper system exists for specifying the sovereign and non sovereign
functions, due to which the state can not claim any immunity or
protection.
13. The Court also stated that in fixing the vicarious liability of the state, if the
liability of the state is related with the negligence of its officers and if they can
be sued personally as the act was not authorized by the state and the officer
also made a breach of trust in discharge of public duty, in this case the state
can also be sued. The liability of the state is linked with its officers.
In the case of Jay Laxmi Salt Works Private Limited Vs State of Gujarat, it was decided that:
1. Injury and damages are two basic ingredients of tort.
2. These two elements may be found in case of breach of contracts also but in
case of contract the liablities are fixed by the parties but in case of torts

the liablities are fixed by law, in case of torts the duty is towards persons
generally but in case of contracts the duty is towards specific person.
3. Law of torts is a develoing law as the scope of law of torts is not only
limited to the cases of strict liabilities.
4. With changing times the liabilities in tort are strict liabilities, absolute
liability and fault liability.
5. Absolute liablity arises when any special use of any substance is made which
is dangerous for others (Reylands Vs Flethcer), In case of Strict liability
there is no intention to cause harm but still damages or injuries result. A
breach of legal duty wilfully or deliberately or maliciously, which causes
harm or injury to others results from fault liability. The mental state of a
person creates a difference in fault and strict liability.
In the case of Donoghue Vs Stevenson, the manufacturer did not take care while producing the goods
due to which consumer suffered, the Court held the manufacturer, responsible.
Damages –
In case of tort, compensation to the aggrieved party is more important than punishment to the
responsible person. the court in India are making government responsible in the case of tort that
provides sovereign immunity to the government in those cases also the government provides damages to
the aggrieved party.
Bhimsingh v/s state of JAMMU AND KASHMIR

In this case MLA was arrested while on his way to Srinagar for attending legislative assembly. It was
found violation of article 21 & MLA was rewarded a damage of Rs 50,000
Saheli women resources centre v/s commissioner of police Delhi.

In this case a nine year old child was dead due to beating by the police officers; the court awarded a
compensation of Rs 75000 to his mother.
Liability of public servant

If the government servant acts beyond his authority he will be liable in the same manner as any other
citizen is liable.
Liability of public corporation

Public corporation is a statutory body which is regulated by a law it is not a department of government
and its employees are not eligible for sovereign immunity however public corporation comes under the
definition of state under article 12 of constitution of India. The public corporation will be vicariously
liable for the torts of its employees. The municipal corporation will also be liable for tort of its
employee.
QUESTION AND ANSWERS
Ques: What is the need for administrative law ?
Answer:
Three main organs or parts of legal system:-
A. Legislative :- which makes laws
B. Executive :- which implements laws
C. Judiciary:- which makes sure that the laws are implemented in a correct manner.
At present due to lack of time with the above institutions we have seen the government bodies do not
discharge their functions in a proper manner and the court are also not able to timely direct the
government to discharge its duties in a correct manner.
The solution is to make good administrative laws that clearly defines the powers, functions and
obligations of the government towards the citizens.
For example:- The court officers did not share information with the public and every citizen did not have
resources to approach the court, to get an order which directs the government to provide a particular
information and hence the parliament of India passed a Right to Information Act, which ensures that
information are shared by public authorities.
Ques: What are the main sources of administrative law ?

Answer:
CONSTITUTION OF INDIA
The government has to protect the fundamental rights of the citizen.

ACTS AND STATUTES
ORDINANCE DIRECTIONS AND NOTIFICATIONS
Directions are issued by the court to the government in relation to various laws and matter relating to
constitution.
The president may also issue orders through notifications to discharge a particular function.
Through ordinances, notifications and direction the president of India and the court creates duties for
the government.
Ques: What do you mean by JUDICIAL DECISION ?
Answer:
Whenever there is dispute between the citizens and the government before the court, the court decides
the matter and after considering the case the court by its order fix the responsibility for the
government.
Ques: What are the liabilities of the government ?
Answer:
The government has two kinds of liabilities toward the citizen
A) Contractual
B) Tortious
A) Contractual:- The liability of the government that arises through the contract is referred as
contractual liability towards the constitution allows the government of India to enter into contract
however. The contracts entered by the government will be valid if:
3) The authorised person must sign contract on behalf of the governor or State
The president or governor shall be personally liable for the contracts.
If the contract with the government becomes void the government should restore all the benefits
received by it under such contract as required by section 65 of Indian Contract Act
Ques: What are the effect of valid contract with government ?
Answer:
Initially, the court did not issue corit of Mandamus for enforcing the contract entered by the
government.
However in case of Gujarat state financial corporation vs lotus hotel, it was decided by the court that
writ of memorandum can be applied for government contract & the government can be ordered to fulfill
its obligation under the court.
In the case of Shrilekha vidyarthi vs State of UP
The court decided that the government contract can be reviewed under article 32 & 226 of constitution
of India. The contract act 1872 applies on the contracts entered by the government.
Que: Explain the tortious liability of the Government for the acts of its employee with the help of
case law.
Ans: Tort means civil wrong for which damages may be claimed. When the government makes a breach
of its duties towards it‘s people , tort is committed.
parliament of state legislature may make laws for it however no law has been made till now.
State of Rajasthan v/s vidyavati,

In this case it was decided that the government will get immunity if tort takes place while discharging
the government function are non-sovereign in nature
4) Making of laws
Administrative laws
*SUMMARY NOTES
1) The laws that deals with powers and functions of government are referred as administrative laws.
2) Administrative laws are required as the 3 main organs of legal system i.e legislative, judiciary and
executive are not able to provide adequate relief to the citizens, so if there are good administrative laws
the citizens will get good services as well as justice.
3) Sources of administrative laws:
Constitution of India
a) Through directive principles
b) Through distribution of powers between Union and State
c) Through fundamental rights
Acts and statues
Different laws also provide for duties and functions of Government and its officers
Ordinances and notifications
Also puts duties on government
In some cases the court imposes duties on Government or its officers.
4) Administrative discretion
Every function of government cannot be codified through laws and hence many laws provide discretion to
government or to its officers .This is referred as administrative discretion.
The government and its officers must exercise its discretion in good faith not against constitution and not
in biased manner.
The judiciary of the country has a control over administrative discretion to make sure that administrative
discretion does not do injustice with citizens.
The judiciary has the power to review the administrative discretion through
a) Constitution
b) Statues
c) Ordinary and equitable manner
a) Judiciary checks that the administrative discretion is not against fundamental rights /constitution
.Done in 2 stages
a) At the time of grant of administrative discretion-When the administrative authorities get any
discretion the supreme court checks the validity of law through which discretion is given to
administration
b) At the time of exercise of administrative discretion-When the administrative discretion is exercised
the supreme court checks whether
Administrative authority has not exercised the discretion properly-In the following cases it will be
considered that the discretion has not been exercised properly
1) Malafied Intention, irrelevant consideration, leaving relevant consideration, arbitrary orders ,improper
purpose and beyond the powers and ignorance of natural justice.
When the administrative authority does not exercise any discretion .In below cases the court considers
that administrative authority has not exercised any discretion .Acting under dictation, self restriction
through rigid rules, acting mechanically without care.
b) Through Statues
Laws provide that any matter under that law may be appealed to supreme court
c) Ordinary and equitable review by court
When the court observes any unlawful exercise of administrative discretion the court court through an
injunction can stop the administrative discretion .Types of equitable reviews:
Prohibitary injunction
a) Temporary injunction
b) Permanent injunction
c) Mandatory injunction
d) Declaratory injunction: In form of declaratory decree
Damages to aggrieved party
5) Principle of natural justice : followed since ages, existed even under common laws. Also given in
constitution.
a) Rules against bias-Nemo Judax casva Sua
b) Rule of hearing – Audi Alterem Partem
Bias can be of 3 types
a) Pecuniary bias, Subject matter bias, Personal Bias which can be classified in Departmental
Bias, Subject matter bias, Judge Partially connected to issue, Pre judgement, Acting under dictation
b) Rule of hearing includes
-Notice to affected party
-Right to present the case and evidence
- Right to rebute adverse evidence
-By cross examination
-By legal representation
-Disclosure of evidence
-Speaking adverse
6) Exception to natural justice rule
a) Statutory exception
b) Emergency
c) Interim disciplinary order
d) Academic evaluation
e) Impracticibility
7) If natural justice fails the order of the administrative authority will be valid till the time it is
cancelled by the court.
8) Liability of government
a) Contractual: The liability that arises on the government .When it enters into contract (Written in the
name of president and signed on behalf of president
The court can enforce such contract through writ of mandamus as given under constitution
b) Tortious –The government is liable for torts committed by its employees in the cases other than cases
involving sovereign duties
However in cases of sovereign duties also the court awards damages to the aggrieved party
When tort is committed by employees of public corporation the public corporation is vicariously liable.

CHAPTER: 6
LAW OF TORTS
Tort Basically means Civil wrongs for which damages may be claimed. Section 2(m) of Indian Limitation
Act, 1963 defines tort as ―Tort is a civil wrong which is not a breach of trust or breach of contract‖.
JAB INTENTION NAI HAI KHARAB,
PAR KISI KO PAHUCHA DIYA AAP NE NUKSAN,
WAHI TORT KAHLATA HAI SAHAB
So, Every Civil Wrong is tort?
No every civil wrong is not tort as the definition of tort expressly excludes breach of contract and breach
of trust from the definition of tort.
In the case of Jay Laxmi Salt Words (P) Ltd vs State Of Gujarat, the Supreme Court of India observed that, no one has
a right to injure or harm others intentionally or even innocently, and if someone is harmed tortious liability will
accrue.
“Tort is a species of Civil Wrong”
If a party wants to take action in tort then the following conditions are to be satisfied:
1) Wrongful Act
The aggrieved party [Plaintiff] has to prove that act committed by the defendant is unlawful and the law
punishes such act.
2) LEGAL DAMAGE
The wrongful act committed by the defendant must result in to legal damage.
There are 2 kinds of damages
Damnum Sine Injuria
Injuria Sine Damno
Damnum Sine Injuria :
NUKASAAN TO HAI PAR,
TORT LAW SE KOI MADAT NAI MILEGI!
The word damnum means a loss or harm in respect of money, comfort or health and injuria means
breach of a right given by law. In this case there is a damage or loss but no action can be taken in tort,
as the damage does not result in breach of any right or there is no injury so the damage is not regarded
as legal damage, which law protects. In cases of damnum sine injuria the law assumes, there is no loss of
legal right of the plaintiff.
Case :Gloucestor [Grammar] School Case.

If a person starts a shop in the nearby area due to which profits of another shop is reduced, in this case
the reduction in profit may be a damage but not a legal damage.
Injuria Sine Damno :
TUMHE KOI INJURY NAI HUI HAI PAR FIR BHI,
TORT LAW SE TUMHE MADAT MILEGI!
In this case it is considered that, there is no damage to a party, but still there is an injury to a party and
hence aggrieved party can take an action in tort, as the damage is regarded as a legal damage. This
concept assumes that, some rights are so important that their violation is actionable tort without proof
of damage. When the private rights of an individual are violated, this principal can be used. For example
the act of trespassing on land of some other person is actionable even if plaintiff does not suffer any
damage.
In the case of Ashby V/s. White The court decided that, denial of voting rights may cause a legal
damage.
3) LEGAL REMEDY :
The remedy claimed by the party must be covered under the tort.
The following remedies are available under tort :-
Damages, Injunction, Detention of Chattel, Self Defense, Damage distress feasant.
4) MENS REA :
―Actus Non facit nisi mens sit Rea‖ The principle of mensrea is based on the above doctrine.
It means no person shall be treated as guilty unless he has a guilt intention.
However, the principal of mensrea does not apply to torts.
KINDS OF LIABILITIES UNDER TORTS

1. Strict Liability or Absolute Liability
APNE YAHA KAROGE JARRORAT SE JADA KUCH STORE,
ACCIDENT HONE PAR, DENA PADEGA COMPENSATION DENA HOGA BEJOD
In case of strict or absolute liability the defendant is liable even if he does not have any guilt intention.
Absolute liablility means a liablity even without mens rea (guilt intention), There is absolute in the
licensing of shops, hotels, restaurants and chemists establishments. The same rule also applies for cases
under the Motor Vehicles Act and the Arms Act, offences against the State like waging of war, sedition
(rebel) etc.
In the interest of public safety, strict liability is imposed and whether a person causes public nuisance
with a guilty mind or without guilty mind, he is punished. If a person violates a law even without the
knowledge of the existence of the law, it can still be said that he has committed an act which is
prohibited by law.
Strict and absolute liability arises in the following cases :
1. Inevitable Accidents
2. Inevitable Mistakes
3. Vicarious Liability
Inevitable Accidents:
When a person stores any dangerous goods in excess quantity and as a result of such excess quantity, if
any accident takes place, owner of such premises will be liable for such accident even though he had
taken all the measures of security.
Case :Reylands V/s. Fletcher.

In this case a contractor was appointed to construct a reservoir in the premises of a factory. When the
water was filed in the reservoir, the unused shafts which were in the soil and covered with soil, started

floating in the reservoir and the water of reservoir was deposited at the plaintiff‘s coal mines due to
overlow.
The court decided, that the case relates to strict liability & the owner is responsible to compensate the
plaintiff.
In the case of Read VS Llyod, it was decided by the Court, that in order to establish or apply the rule
established in the case of Raylands Vs Fletcher, two conditions must be satisfied:
a) Escape from the place of defendant of something over which the defendant had a control; and
b) Non natural use of land by the defendant.
Does the rule established in Reyland V.s, Fletcher applies in India?
In the case of MC Mehta Vs Union of India, the Supreme Court made a departure from the rule
established in the case of Raylands Vs Fletcher and decided, even if any substance is not stored in the
excess quantity and due to escape of which the plaintiff was affected, the owner will be liable.
Que) Critically examine the applicability of liability rule in the tort applied in cases of enterprises
engaged in a hazardous industry in India.
Inevitable Mistakes
These mistakes happen when a person interferes with property or reputation of some other person.
Vicarious Liability
KHANA KHAYA KISI AUR NE,
PAR BILL BHARNA HAI APNE KO!
When a person interferes with the property or reputation of some other person.“Qui facit per aliumfacit
per se”
It means ―The person who acts through any other person is responsible for the acts of such person‖
Vicarious liability arises in the following cases :
1. PRINCIPAL & AGENT

The principal is personally liable for the torts committed by his agent.
Lloyad V/s. Grace Smith & Co.

In this case the clerk of the firm accepted the money, and ran away, the court decided that, the owner
of the firm is responsible to the customers.
2. PARTNER
AGAR PARTNER KARTA HAI KOI TORT TO AAP KI BHI LAG JAEGI WATT!!
One partner is responsible for the tort committed by the another partner.
Harmylin V/s. Houtson& Co.

In this case a partner of the firm bribed the Government Servant, the Court held responsible and
punished to all the partners of the firm for bribing the Government Servent.
3) MASTER & SERVANT
For torts committed by servants master is also responsible and the liability is joint as well as several.
If the servant does any act which is outside the scope of his duty, but if it is proved that such act was
done for the benefit of the master or unauthorized act was specifically authorized by the master, the
master will be jointly and severally liable.
If the servant acts against the interest of the master but for the benefit of the master, master is
responsible.
4. EMPLOYER AND INDEPENDENT CONTRACTOR

As a general rule, the owner or the employer is not liable for the torts committed by the independent
contractor, If it is proved that the owner or employer had taken a proper care at the time of appointing
the contractor:
However in the below mentioned cases the employer or owner will be responsible jointly as well as
severally for the torts committed by the independent contractor:
(1) In case of Strict Liability (inevitable accidents or inevitable mistakes), or
(2) When the employer authorized the contractor to commit a tort, or
(3) If the contractor is negligent.
Philips V/s. Britania Hygenic Laundry & Co.

In this case law the owner of the truck appointed a contractor to repair the truck, after such repair, the
truck met an accident and damaged a vehicle. The court held the contractor responsible for the
accident.
Century Insurance Co. V/s. Northern Ireland Transport Board :
In this case, the owner of the container ordered the driver (contractor) to take the container in the
underground area where inflammable substances were kept. In that area the driver threw lit cigarette
due to which an accident occurred. The court held the owner responsible for the accident.
In the case of Bayley v. Manchester, Sheffield and Lincolnshire Rly. Co, it was decided that if the porter of a person
(coolie) forcibly removed another person from train erroneously believing that another person was in wrong train,
Court decided that for the act of porter his master will be liable.
VICARIOUS LIABILITY of the state for torts committed by its Servants:
If any tort takes place while discharging the statutory duty the state is not liable for such torts in India.
Green V/s. Chelzea Water Works :
In this case water line busted at the time of supply of water to the households by the municipal
authority. The court did not held municipal authority responsible for busting of water line.
However in UK the State is vicariously liable for the torts committed by the employees of state.
TORTIOUS LIABILITY OF THE STATE

Tort means civil wrong for which damages may be claimed. When the government makes a breach of its
duties towards it‘s people , tort is committed.
parliament of state legislature may make laws for it however no law has been made till now.
State of Rajasthan v/s vidyavati, in this case the driver of the Government Jeep, which was used by the
Collector of Udaipur, hit the person walking on the foot path by the side of public road, the injured
person died within 3 days in the Government Hospital. The representatives of the deceased sued the
Government of Rajasthan and the driver and the High Court and the trial court found the driver guilty
and on appeal the Supreme Court also upheld the decisions of the High Court and the trial court.
The Supreme Court Stated the following points in the case:
6. Government will get immunity if tort takes place while discharging

7. In the United Kingdom also the principal that ―King Can do no Wrong‖ is not
followed as section 2(1) of Crown Proceedings Act, 1947 states that the
crown shall be liable for all the legal proceedings and liabilities if the torts
are committed by its servants or agents as per the provisions of this act.
8. In India we have more advanced system then the system established in
Crown Proceedings Act, 1947, by the provisions of Government of India Act,
1958.
9. In India since the time of East India Company the common law protection
(under common law it is assumed that state can never do wrong) to the
soverign was not operative as it was operative in UK on the basis of
principal that King can never do wrong.
10. In this case the Court did not follow the common law theory and held that
the Government will be vicariously liable for torts committed by its
servents.
the government function are non-sovereign in nature.
The following functions of the Government are Sovereign in Nature:

4) Making of laws
In the case of state of Bihar Vs Abdul Majid, the Supreme Court decided that the Government servant
has a right to sue the Government for the arrears of salary.
In the case of Kasturi Lal Vs state of UP, the stolen gold was recovered by UP police but the said gold
could not be recovered to its owner as one of the constables of UP police absconded with the gold. The
owner of the gold sued the UP Government, for the recovery of the gold or damages for the loss, the
matter reached to the Supreme Court and Supreme Court decided:
f. The gold was in the custody of constable.
g. Though UP Police Regulations were not complied in terms of holding the Gold but the gold was
in the custody of the officer.
h. The act has been committed by the officer of the UP Government during the course of his
employment.
i. The claim of petitioner (owner of gold) relates to sovereign powers but still Supreme Court in
this case did not make the Government Responsible, as it was a crime by the officer of the
Government.
j. The Supreme Court also asked the legislature to make a law to fix up the liabilities of the
Government servants.
Distinction between Sovereign and Non Sovereign Functions:
In the case of N. Nagendra Rao Vs State of Andhra Pradesh, the following principals were established
with regard to Sovereign and Non Sovereign Functions:
1. The Legislature by making laws can state the difference between Sovereign
and Non Sovereign Functions.
2. One of the test to determine sovereign function is to see, wheatear state is
answerable for such actions in the Court, for example on the matters of
Defense, war, foreign affairs, power of acquiring and retaining any territory
are the functions for which the State is answerable in the Court so these
functions are sovereign in nature.
3. The state can not play or affect the rights citizens in unfair manner and
take a protection of sovereign function, in this case the Courts can
interfere.
4. The state can not consider itself above law and play with rights of citizens
in unfair manner and take the protection of sovereign functions.
5. In a welfare state, the rights of citizens duties of the officers of the state is
to be reconciled.
6. Welfare state means:
a. The welfare state does not only defend the Country or administers
justice or maintains law and order but it also regulates and controls
activities of the people in every aspect such as educational,
commercial, social, economic, political, and marital.
b. No proper system exists for specifying the sovereign and non sovereign
functions, due to which the state can not claim any immunity or
protection.
7. The Court also stated that in fixing the vicarious liability of the state, if the
liability of the state is related with the negligence of its officers and if they
can be sued personally as the act was not authorized by the state and the
officer also made a breach of trust in discharge of public duty, in this case
the state can also be sued. The liability of the state is linked with its
officers. (don‘t get confused with the decision in the case of Abdul Majid, as
the facts might be different in both the cases, so when you write answer in
the exam you can write as per your wish by referring to the case laws as
discussed here)
In the case of Jay Laxmi Salt Works Private Limited Vs State of Gujarat, it was decided that:
1. Injury and damages are two basic ingredients of tort.
2. These two elements may be found in case of breach of contracts also
but in case of contract the liabilities are fixed by the parties but in case
of torts the liabilities are fixed by law, in case of torts the duty is
towards persons generally but in case of contracts the duty is towards
specific person.
3. Law of torts is a developing law as the scope of law of torts is not only
limited to the cases of strict liabilities.
4. With changing times the liabilities in tort are strict liabilities, absolute
liability and fault liability.
5. Absolute liability arises when any special use of any substance is made
which is dangerous for others (Reylands Vs Flethcer), In case of Strict
liability there is no intention to cause harm but still damages or injuries
result. A breach of legal duty willfully or deliberately or maliciously,
which causes harm or injury to others results from fault liability. The
mental state of a person creates a difference in fault and strict liability.
In the case of Donoghue Vs Stevenson, the manufacturer did not take care while producing the goods
due to which consumer suffered, the Court held the manufacturer, responsible.
QUE: Discuss the vicarious or tortious liability of state for the act of his servant. Refer relevant
Judgements.
Exceptions to the rule of Strict Liability :
In the below mentioned cases the owner is not responsible for torts:-
1) Natural Use of Land :-Keeping water in the water tank, piping in the building, planting trees,
farming, construction, building roads etc., amounts to natural use of land. If any tort takes place due
to natural use of land, the owner is not liable.
For example if Coconut falls from the tree on a person, the owner is not responsible.
2) If consent of the plaintiff was taken for an act which became tort later on, owner will not be liable.
Example: In the case of Raylands Vs Fletcher, if owner of the factory would have taken the consent of
the owner of neighbouring coal mines for the construction of the reservoir then the owner of the
factory would not have been responsible.
3) If the tort takes place due to the default of the third party, the owner will not be liable.
Box V/s. Jubh

In this case a stranger blocked the drainage of a reservoir due to which the water overflow the
reservoir, the owner was not held responsible by the court.
4) If the tort was committed by the statutory authority at the time of discharging the statutory duties.

In this case water line busted at the time of supply of water to the households by the municipal
authority. The court did not held municipal authority responsible for busting of water line.
5) Act of God :- If any accident takes place due to flood, earthquake, storm, Tsunami or like events,
the owner is not liable.
6) Plaintiff’s own default : If the plaintiff wilfully avoids safety instructions and due to which a tort
takes place, the owner will not be responsible.
TORTS AGAINST PERSONAL SAFETY AND FREEDOM :

BATTERY
KISI KO TOUCH BHI KARNA, BATTRY KAHLA SAKTA HAI,
AGAR USE AAP KE TOUCH SE NUKSAAN HO
When a person uses a force [however trivial it may be] such use of force is called as Battery. Intentional
application of force on other person without any legal justification.
It is touching a person, however slightly in a hostile manner or against his will.
For instance, spitting on someone‘s face, cutting hair of other person without his consent or removing a
person‘s hat or snatching paper from a person can also amount to battery as all these acts involve use of
force.
ASSAULT
KISI KO MARRA NAHI, PAR US KE MAN MAIN,
DAR PAIDA KIYA KI MAAR PADEGI
When a person creates an apprehension in the mind of some other person that a physical damage may be
caused, such an act becomes assault. In assault no physical harm is done but a fear is created that a
physical harm will be done.
So in assault we create a fear and in battery we actually use a force.

e.g. Pointing a loaded gun on a person may amount to assault
BODILY HARM
When a person does some act due to which the body as a person is affected or injured, such act will also
amount to tort.
FALSE IMPRISONMENT
Every person has got constitutional freedom and liberty, if any person restricts the freedom and liberty
of some other person by unlawful means. Such restriction of freedom amounts to false imprisonment
and it is a tort.
MALICIOUS PROSECUTION :-
KISI KO KARNA HAI PARESHAN,
JHUDHA CASE CHALA KAR NIKAL DO USKI JAN!
It means a false prosecution started against a person with the intention of damaging the reputation of a
person or to annoy a person.
The plaintiff who wants to take action against malicious prosecution to prove the following points :-
1) There was a prosecution.
2) The prosecution was without any legal reason.
3) The plaintiff in such prosecution acted with an improper motive.
4) The defendant in such prosecution suffered a loss or damage due to prosecution.
5) The decision in such prosecution comes in the favour of defendant.
If all the conditions are satisfied, then the defendant of malicious prosecution may take action against
the plaintiff of malicious prosecution.
NERVOUS SHOCK : Sometimes a person may suffer an injury or damage not by a physical harm but by
what he has seen or heard. Such act of defendant which has caused a nervous shock may be treated as
tort.
In the Case of Wilkinson Vs Downtown, a person jokingly informed a lady that her husband has met with
accident and his legs are broken, as a result of which the lady suffered a violent shock, the court
awarded the lady, a compensation.
DEFAMATION : It means harming reputation of a person by visual, audio – visual, words or other means.
There are two types of defamation.
Libel: The defamation which is in permanent form i.e. the record of which is available
Slander: The defamation which is of temporary nature and of which no records are available.
REMEDIES IN TORT :
1. Judicial Remedies: Remedies from the court
The court can grant following remedies:
a. Compensation to the aggrieved party b. Injunction against defendant
2. Extra – Judicial Remedies: Remedies outside the court
Following are the extra judicial remedies:
SELF DEFENSE : the aggrieved party may make a self defense and stop the other party from causing
physical harm.
TRESPASS : If some person trespasses over the property of some other person then the aggrieved person
may prevent the trespass in a peaceful manner.
DAMAGE, DISTRESS, FEASANT :- In case the cattle / chattel of any person has caused damaged to any
other person or his property. In this case such aggrieved person may retain such cattle, till the time the
damages are paid to him.
STOPPING THE NUISANCE : In case any person is causing nuisance, then the aggrieved person may
prevent such nuisance in the most peaceful manner.
Que: State the remedies available in tort other than an action for unliquidated damages
Hint: unliquidated damages are fixed by Courts.
SUMMARY NOTES FOR LAW OF TORTS
1) Torts are civil wrongs which are not breach of trust or breach of contract.
2) In order to claim remedies under tort, there must be
a) wrongful act
b) wrongful act must result in legal damages, the damages may be :
• Damnum sine injuria :Damages, but no breach of right /privilege ,no injury, no action in tort
• Injuria sine damnum:Breach of right /privilege or there is an injury even if there are no damages ,
action can be taken in torts.
C) The remedies that are to be claimed from court must be covered in torts .
d) MENS REA –not required in torts .
3) Kinds of liabilities in torts :
a) Strict liability : arises in the following cases
* Inevitable accident – These accidents take place due to :
1) Escape from place of defendant any substance
2) Non natural use of land
Case law : Reylands Vs Fletcher
In case of Mehta and Union Of India ,the Supreme court departed from decision of Reylands Vs Fletcher
and stated that liabilities of tort may arise even if substance was not stored in excess Quantity.
*Inevitable mistakes –When a person interferes with reputation on property of person strict liability
arises.
*Vicarious Liability –arises on account of relationships and in following relations
1) Principal and Agent
2) Master and Servant
3) Employer and Independent Contractor
(As a general rule employer is not liable for torts of Independent contractor. However, in case of strict
liability or where employer had authorised tort by Independent Contractor was negligent, employer is
liable)
d) State is not liable for torts of its employees
e) Partners
4) Exceptions to the rule of strict liability – There will be strict liability but owner is not responsible
a) Natural use of land
b) Consent of Plaintiff
c) Act of God
d) Act of third party
e) Act of statutory Authority at the time of discharging statues
f) Plaintiff‘s own default
5) Torts against personal freedom and safety :

a) Battery –use of force against someone without consent
b) Assualt – creating apprehension that physical damage will be caused
c) Bodily harm – giving injuries to body of a person
d) Nervous shock – tort by what a person has seen or heard
e) Malicious Prosecution – false prosecution to annoy the defendant
f) Defamation – interfering with reputation of some person. Two types :
a) Libel – Permanent form
b) slander – temporary form
g) False Imprisonment –imprisonment of person or restricting freedom without legal justification.
6) Remedies in tort :
a) Judicial (through court )
*Compensation
*Injunction
b) Extra Judicial –not from court
-Self defense
-Prevent trespass
-Stop nuisance
-Damage, Distress Feasent - Keep cattle /chattel till compensation is received.
Tort Test for Self Practice

1) What are the torts against personal safety and freedom? Describe any 2
2) Mr.Sunil was denied the voting right by electoral officer and hence he decided to start a case in
tort against officer .Can case be started? If yes give reference to decided case law.
3) The pipeline of a factory was damaged by a terrorist due to which water spread in neighbouring
area. As a result the resident of that area demanded compensation from owner of factory .Advice
4)What are the essentials for claiming a relief for inevitable accidents ?Also refer case law
5) What are the extra judicial remedies for tort ?

CHAPTER: 7
INDIAN LIMITATION ACT,
1963
The intention behind passing limitation Act is to prescribe limitation
period for approaching the court and if a party approaches court after
expiry of limitation period the court will not accept the case.
According to above discussion we can conclude that if a party intends

approach the court it must approach within the period of limitation.
The limitation act applies to whole of India except the state of

Jammu & Kashmir.
Q.: “Limitation Bars Remedy but does not extinguish Right”.

Comment
Ans.: The limitation Act prescribes a period of limitation within

which a court must be approached for justice, if a party fails to
approach court within the prescribed period of limitation. He will not be entitled to any remedy through
the court i.e. the parties cannot approach court after expiry of period limitation. However such party
always has a personal right to recover its right without the Aid of the court. So it can be clearly stated
that the limitation Act bars a remedy through court but does not extinguish the personal right.
In the case of Bombay Dying & Mfg. Co. Ltd. Vs State of Bombay, it was decided that if a claim is
satisfied outside the Court of law after the expiry of
period of limitation, it is not illegal.
For example, in the cases related to payment of the

money, a party may make personal demand for
recovery of his debt from the other party even after
the expiry of period of Limitation.
(Yeh dhyan rakiye ki
ke zariye aap ka court jane ka right khatam hota

hai par aap ka personal right jo hai use koi fark nai
padta, for example aap court ke bahr apne paise
mang sakte hai)
 Bars of Limitation: According to Sec. 3 of Act, if a party approaches the court after expiry of period
of limitation it is duty of court not to proceed with the case. When any suit is filed in the Court the
Court should on the date of filing of the plaint decide whether the suit or plaint is filed within or
after the period of limitation.

The effect of Section 3 is not to deprive the Court of its power to entertain the cases (jurisdiction).
Therefore, decision of a Court allowing a suit which had been started after the limitation period is
not affected for want of jurisdiction. A decree passed in a time barred suit is not a nullity.
(limitation act ka maksad parties ko court jane se rokna nai hai par parties ko zimmedar banana hai
ki parties time par court jayen jis se unhe jald nyay mile)
As per section 4 of Limitation Act, 1963, in case the limitation period expires on a day when the
Court is closed (court shall be deemed to remain closed if it is closed during any part of its normal
working hour, on that particular day) the suit, appeal or application may be made on the day when
the Court reopens.
DOCTRINE OF SUFFICIENT CAUSE – Section 5

AGAR COURT JANE MAIN HO RAHI HAI DERI,
COURT SAMJHEGA TUMBARI MAJBOORI
1) Doctrine of Sufficient Cause is contained in section 5 of Indian Limitation Act, 1963 .According to this
doctrine if a party is able to prove that it was prevented by a sufficient cause from approaching the
court. The court can accept the case if the court is satisfied that there was a sufficient cause.
The test of ―sufficient cause‖ is purely an

individualistic test, that means it is
different in different situations. It is not a
neutral test. Two types of cases can not be
given similar treatment. The limitation act
has not defined concept of ‗sufficient
cause‘ so basically Courts get a discretion
to decide what is sufficient cause and what
is not depending upon the facts and
circumstance of each case. There are no
categories of sufficient cause. In the case
of R B Ramlingam v. R B Bhvansewari, it
was decided that, The categories of
sufficient cause can never be fully defined.
Each case has different circumstance and hence sufficient cause in case differs.
2) Section 5 is an exception to section 3.
3) However it must be noted that this doctrine is applicable only to appeals and applications and not to
the suits. The section does not apply to suits because the suits already have long limitation period.
Ranging normally from 3 to 30 years in most of the cases.
 Case Laws :Ramlal Vs. RevaColdfails Ltd.
It was decided by the court that the sufficient reason must be beyond the control of parties.
It is the Court‘s discretion to extend or not to extend the period of limitation even after the sufficient
cause has been shown and other conditions are also specified. However, the Court should exercise its
discretion judicially and not illogically.
(agar sufficient cause ke chalte aap court time par nai pahunch paye to aap ko extension of time milega)
Que: The decision of a Court allowing a suit which had been instituted after the period
prescribed is not vitiated for want of jurisdiction. Discuss it in the light of provisions under
section 3 relating to Bar of Limitation under Limitation Act, 1963.
WHAT IS SUFFICIENT CAUSE AND WHAT NOT

BHAI LAW MAIN TO NAHI BATAYA HAI,
PAR APNE CONTROL KE BAHAR HOTA HAI!!
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Sufficient cause depends upon the facts and circumstances of each case. So below are the points that
have been specified on the basis of decisions of the Courts.
May be explained by below mentioned points:
1) Wrong practice of High Court which mislead the

applicant or his advocate in filing the Appeal is a sufficient
cause.
2) Sometimes wrong advice or mistake of counsel may

also be considered a sufficient cause if the applicant Acts in a
good faith.
3) Sometimes mistake of law may be considered as

sufficient cause but it must be noted that ignorance of law is no excuse.
4) Serious illness or imprisonment of parties during the period of limitation can be considered as
sufficient cause.
5) Time taken for obtaining certified copy of decree with has to be attached with the Appeal can be
ignored from the period of Limitation.
6) Serious illness (ailment) of father during period of limitation can be considered as sufficient cause
(Mahendra Yadav v. Ratna Devi & others)
7) Non availability of the file with the state‘s (Govt.) Counsel, is not a sufficient cause.
8) Imprisonment of the party may also be considered as sufficient cause.
Que: The test of ‗Sufficient Cause‘ is purely an individualistic test, under the Limitation Act,
1963. Clarify.
PERSON UNDER LEGAL DISABILITY : (SEC. 6, 7, 8)

DIABLE WALE KA LIMITATION PERIOD,
DIABILTY KHATAM HONE KE BAAD SHURU HOGA!!
Section 6 of Limitation Act, 1963 helps the
persons to file a suit who are under legal
disability ex. : Minor, lunatics, etc., in cases of
these persons the period of limitation starts
after the cessation of the disability.
Where the disability continues up to the death
of that person, his legal representative may
institute the suit or make the application within
the period of limitation after his death (means
limitation period will begin after death), but in
that period if legal representative is also under a
legal disability, then the limitation period will
begin after the ceasation of legal disability.
Where a person under disability dies after the

disability comes to an end but within the period
of limitation, in this case his legal
representative may institute the suit or make the application within the period under which such
deceased person whold have instituted the suit if he had not died.
If the person was suffering from 2 disabilities then the limitation period will begin from the time when
both the disabilities come to an end or if before expiry of one disability if other disability arises in this
case also the limitation period will begin after end of both the disabiliites.
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Section 7 applies in the case where a group of persons are under a legal disability. In this case the
period of limitation starts on date on which any of group ceases his legal disability. This principle or rule
is applied when similar rights are to be claimed by Group of persons. In order to take the benefit of
section 7, it is necessary all the persons who have to claim a common right are under a legal disability.
For example, if the case is to be filed against the trustees by the beneficiaries on account of breach of
trust obligations, and all the beneficiaries are under legal disability, the period of limitation will begin
from the day when any one of the beneficiaries ceases his disability.
Section 8 puts an overall limit on section 6 and 7. The section provides that the fresh period of
limitation after cessation of disability cannot exceed 3 years. It means when the benefit of disability is
availed under section 6 or 7, the fresh period of limitation will be limited only to 3 years.
Continuous Running of Time (Sec. 9) : Section 9 of

Limitation Act, 1963 states that, once the time of
limitation has beuan to run no subsequent disability can
stop it.
Section 6 applies to the cases in which there was a legal
disability at some time of commencement of period of
limitation.
But section 9 deals with the cases in which legal

disability or inability arise after commencement of
limitation period.. So if any disability arises after
commencement of limitation period, no extension of
time will be allowed by the court. It means section 9 will apply in the case when on the date of start of
limitatioin perid if there was no disability and the limitation period started so if the limitation period is
started, it can not be stopped later on.
Basically section 6 applies in the cases when on the But section 9 applies in the cases where on the
date of commencement of limitation period any date of start of limitation period there is no legal
party is subject to legal disability. disability and the period of limitation has begun to
run.
Example of section 9:
Ram gave Rs. 700 to Shyam as debt and shyam promised to return the money on 25 th April 2011. On 26th
April Shyam refuse to make payment on 28th of April Ram goes mad. In this case no extension of time
will be allowed by the court.
However there is an exception to section 9: where letters of administration to the estate of a creditor
have been granted to his debtor, the running of the period of limitation for a suit to recover debt shall
be suspended while the administration continues.
It means if the debor during the period of limitation is appointed as executor by the Court by the issue of
letters of administration, for the estates of the creditors, in this case the limitation period against the
debor will be suspended, till the time the debtor has the administration of the estates of deceased
creditor.
Letter of administration is issued for settlement of the property of the deceased person so if a person
dies without making a will then the court by issuing letter of administration appoints a person who will
settle and distribute the property of deceased amongst legal heirs of deceased.
So in the case of above exception if suppose creditor died without making a will, now the court has
issues a letter of administration in favour of debtor and the debtor was made incharge of properties of
the creditor now in this case if the limitation period against the debtor was already running (as the
debtor would have made a default in payments of the debts to the creditor when the creditor was alive
and limitation period was started) will be suspended as soon as the debtor gets letter of administration
and it will remain suspended till the time the debtor manages the assets (estates) of deseased creditor.
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Que: RAM BORROWED RS 10000 FROM SHYAM ON JAN 2009, AND PROMISE TO REPAY
ON JAN.10.2010. RAM FAILED TO PAY THE AMOUNT ON AGREED DATE, ON JAN-20-
2010, SHYAM DIED LEAVING HIS MINOR SON KUSHAL WHO WAS OF 14 YRS ON THE
DATE OF DEATH OF SHYAM. KUSHAL FILED A CASE ON JAN 10, 2016. AFTER ATTAINING
MAJORITY. WHETHER THE SUIT FILED BY KUSHAL IS MAINTAINABLE?
Que: Explain the nmeaning of continuous running of time under Section 9 of Limitation Act with exceptions and
applicability.
THE COMPUTATION OF PERIOD OF LIMITATION (Section 12 to 24)

1) In case of suits the period of
limitation will be calculated from next day
from which cause of action arose (it means
we will exclude the day from which the
limitation period begins to run, this rule also
applies to appeals and applications)
2) In case of Appeals and applications

the limitation period will start from the on
which the copy of order or decree passed by
the court is received.
However, the time taken by the Court to
prepare the decree or order before an
application for a copy is made shall not be excluded in computing the time for obtaining a copy of a
decree or an order.
(It suggests that, as soon as decree is passed by the Court the appellant must file application to
obtain the copy of decree, if the he makes delay in filing the application for obtaining the copy of
decree, than the time that the court takes in preparation of decree will not be excluded while
counting the period of limitation – matlab order ki copy ke liye apply karne main jitna late kiya utna
time limitation period main count hoga)
3) In case where an appeal is made in a court against the award given by arbitrator. The period of
limitation will begin from the day on which copy of arbitral award is received.
4) In case where an appeal is to be made in the court against the award given by the arbitrator, the
period of limitation will begin from the day on which copy of arbitral award is received.
5) Exclusion of time during which leave to sue or appeal as bankrupt or indigent is applied for.
(Bankrupt or indigent person (the person who does not have the money to pay court fees) has the
option to apply to the Court for taking exemption from paying the Court fees, so if the indigent
person applies to the court for such expeption before starting the suit, the time that court takes in
disposing of such application will be excluded from the period of limitation)
5) In good faith if a party approached a wrong court, which did not have jurisdiction over such
subject matter, the time of such wrong suit can be excluded, however the plaintiff or the
applicant must prove that he acted with diligence.
Que: Explain the importance of ‘time requisite for obtaining a copy’ under Limitation Act, 1963 with the help of case
law.
Exclusion of time in other Cases
1) When a suit or application for the execution of a decree has been stayed by an injunction or order.
2) The time required to obtain the sanction or consent of the Govt. required, or a notice period shall also
be excluded in case of suits.
(In some cases, before the start of the suit we need to obtain the permission of the Central or State
Govt. before starting the case, so the time required to obtain such permission shall also be excluded
from the period of Limitaition)
3) If the receiver or liquidator has to execute any decree then the period of 3 months from the date of
their appointment shall be excluded.
(It means the receiver who is appointed to sell the property gets 3 months time extra from the date
of decree of the Court to execute the decree)
4) The time during which the defendant has been absent from India and from the territories outside India
administered by the Central Government, shall also be excluded.
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5) In case of death of a person before the right to institute a suit accrues, the period of limitation shall
be computed from the time when there is a legal representative of the deceased capable of instituting
such suit or making such application. The same rule applies in case if defendant dies. It means if a
person dies before the arising of right to sue or making of application, then the period of limitation
begins from the time when there is legal representative of the deceased who is capable of instituting
such suit (till the time the legal representative becomes capable the limitation period will not
commence, limitation period will start when 2 conditions are fulfilled, there is a legal representative +
he is capable).
However, the above rule does not apply to suits to enforce rights of pre-emption or to suits for the
possession of immovable property or of a hereditary office (means in these cases even after death of the
person the limitation period will continue even if there is no legal representative or there is a legal
representative and he is not capable of filing a suit)
6) If a party could not approach the Court due to fraud or mistake of the other party i.e the defendant,
the time taken by the plaintiff in for discovering the fraud or mistake shall be excluded from the
period of limitation.
Que:Explain the importance of time requisite for obtaining a copy' under Limitation Act, 1963 with the
help of case law.
EFFECT OF ACKNOWLEDGEMENT ON PERIOD OF LIMITATION
BHAI KABUL HAI KABUL HAI KABUL HAI,
AGAR BOLA TO FRESH LIMITATION PERIOD SHURU HOGA
As per Section 18 of Limitation Act, 1963 if a debtor or his authorised agent, makes a written and signed
acknowledgement of his liability within the period of limitation the creditor is entitled for a fresh period
of limitation from the date of acknowledgement and the acknowledgement made by the debtor must
relate to the debt or any property. Acknowledgement must be made within expiry date of Limitation
period i.e. 3 years.
So for example if the limitation period against Mr suresh started on 1.02.2021 then limitation period will
continue up to 01.02.2024, within this period if Mr. Suresh gives a written acknowledgement of his debt
on 20.12.2020, then his creddior will get a fresh limitation period of 3 years from 20.12.2020.
If the signed acknowledgement is made but it is not dated then the date can be proved by oral evidences
as well.
If a Company or firm or individual shows in his signed balance sheet that he owes money to a specific
person then such balance sheet will also be considered as acknowledgement.
EFFECT OF PAYMENT ON ACCOUNT OF DEBT OR INTEREST

According to Section 19 of limitation Act, if a debtor or his authorised agent, makes a payment on
account of principle or interest before expiry of period of limitation the creditor is entitled for a fresh
period of limitation from the date of part payment made by the debtor.
The word debt used in this section does not include money payable under the order or decree of the
Court. That means if X was to pay Rs 10000 to Other person under the order of court, in this case on
account of Rs 10000 if X makes any part payment then the other person is not going to get fresh period
of limitation as this section applies only to the part payment of debts and debt does not include moany
payable under the decree of the Court.
(Note: If possession of property is given to the mortgagee & the mortgagee receives some profit from
the property, such profit will be considered as part payment of the debt.)
So for example if the limitation period against Mr suresh started on 1.02.2021 then limitation period will
continue up to 01.02.2024, within this period if Mr. Suresh makes payment of Rs 1000 on account of his
debt on 20.12.2020, then his creddior will get a fresh limitation period of 3 years from 20.12.2020.
Que: ARPIT TOOK A DEBT OF RS 10000 FROM BHARAT ON JAN, 1998 AND PROMISED TO
PAY BY 31ST DECEMBER, 2003. HE COULD NOT PAY SUCH DEBT WITHIN THE
STIPULATED TIME ON 1ST DECEMBER, 2006, ARPIT PAID RS 500 AS INTEREST AGAINST
SUCH DEBT TO BHARAT AGAINST RECEIPT, BHARAT FILED A SUIT AGAINST ARPIT TO
RECOVER SUCH DEBT ON 15TH DEC, 2008. WHETHER THE SUIT FILED BY BHARAT IS
WITHIN THE PERIOD OF LIMITATION? DECIDE WITH REASONS STATING RELEVANT
PROVISIONS OF THE LAW?
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ACQUISITION OF OWNERSHIP BY POSSESSION SECTION 25
Section 25 applies to acquisition of easements. It provides that the right to access and use of light or air, way,
watercourse, use of water, or any other easement which have been peaceably enjoyed without interruptionand for
twenty years (thirty years if property belongs to Government) shall be absolute and indefeasible. Suchperiod of
twenty years shall be a period ending within two years next before the institution of the suit.
(easement is basically a right that a person enjoys over the property of others and this right relates to right of way,
natural air, sunlight etc.) so as per section 25 if a person enjoys any easement without any intruption for 20 years or
30 years in case the property belongs to the Tovernemnt then such person gets the ownership of property.
EFFECT OF LIMITATION UNDER CONSTITUTION
The Constitution of India gives the power to prescribe for limitation periods under the various laws, the
power also includes the power to make amendments in various laws for increasing or limiting the period
of limitation, however a reasonable time must be allowed for approaching the Court. The amendments
made by Constitution should not affect the fundamental rights of the citizens.
The law of limitation can not be declared as unconstitutional on the ground that it stops citizens from
approaching the Court. The law of limitation only affects the future right of action of the parties. It is a
protection and not a weapon of offence.
The State cannot place any difficulty by prescribing a period of limitation in the way of an aggrieved
person seeking to approach the Supreme Court of India under Article 32 of the Constitution. In the case
of Trilokchand Motichand Vs HP Munshi, it was decided that limitation act, does not apply, when the
fundamental rights of any person are violated, however in case of immoveable properties, if a suit has to
be filed under Constitution of India, then the limitation act will apply.
In the case of State of MP Vs. Bhai Lal Bhai, it was decided that, The Limitation Act does not in terms
apply to a proceeding under Article 32 or Article 226 (Right of Constitutional Remedies) of the
Constitution. But the Courts act on the ground of the law of limitation, refuse relief if the delay is more
than the statutory period of limitation
CLASSIFICATION OF PERIOD OF LIMITATION
Period of 30 years: The maximum period of limitation prescribed by the Limitation Act is 30 years and it
is provided only for three kinds of suits:
1. Suits by mortgagors for the redemption or recovery of possession of immovable property mortgaged;
2. Suits by mortgagee for foreclosure;
3. Suits by or on behalf of the Central Government or any State Government including the State of
Jammu and Kashmir.
Period of 12 years: A period of 12 years is prescribed as a limitation period for various kinds of suits
relating to immovable property, trusts and endowments.
Period of 3 years: A period of three years has been prescribed for suits relating to accounts, contracts,
declaratory suits, suits relating to decrees and instruments and suits relating to movable property.
Period varying between 1 to 3 years: The period from 1 to 3 years has been prescribed for suits relating
to torts and other miscellaneous matters and suits for which no period of limitation is provided in the
schedule to the Act.
Period in days varying between 10 to 90 days: The minimum period of limitation of 10 days is
prescribed for application for leave to appear and defend a suit under summary procedure from the date
of service of the summons.
For appeals against a sentence of death passed by a court of session or a High Court in the exercise of its
original jurisdiction the limitation period is 30 days.
For appeal against any sentence other than a sentence of death or any other not being an order of
acquittal, the period of 60 days for the appeal to High Court and 30 days for appeal to any other Court is
prescribed.
Que: State the Minimum and Maximum period of limitation under Limitation Act?
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IMPORTANT LIMITATION PERIODS
1.For Suits relating to contract – 3 years.
Suits Relating to Immoveable Property.
To enforce payment of money 12 years When the money
secured by a mortgage or sued for becomes
otherwise charged upon due.
immovable property.
By a mortgage
(a) for foreclosure; Thirty years When the
money
secured
by the
mortgage
becomes
due.
(b) for possession of immovable 12 years When the mortgage becomes entitled
property mortgaged. to possession.
For possession of immovable property 12 years The date of dispossession.
based on previous possession and not
on title, when the plaintiff while in
possession of the property has been
dispossessed.
For possession of immovable property 12 years When the possession of the defendant
or any interest therein based on title. becomes adverse to the plaintiff.
Explanation – for the purposes of this article -
(a) Where the suit is by a remainder-
SUITS RELATING TO MOVEABLE PROPERTY

For specific movable property lost, or 3 years When the person having the right to
acquired by theft, or dishonest the possession of the property first
misappropriation or conversion. learns in whose possession it is.
For other specific movable property. 3 years When the property is wrongfully
taken.
To recover movfable property 3 years The date of refusal after demand.
deposited or pawned from a
depositary or Pawnee.
To recover movable property 3 years When the sale becomes known to the
deposited or pawned, and afterwards plaintiff.
brought from the deposited or
pawned, and afterwards brought from
the depositary or pawnee for a
valuable consideration.
Division II
SL. DESCRIPTION OF SUIT PERIOD OF TIME FROM WHICH
NO. LIMITATION PERIOD BEGINS TO
RUN
Appeal from an order of acquittal, -
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(a) under sub-section (1) or sub-section (2) of section 90 days The date of the order
417 of the Code of Criminal Procedure,1898; appealed from.
(b) under sub-section (3) of Section 417 of the that 30 days The date of the grant
Code. of Special leave.
Under Code of Criminal Procedure,1898
(a) From a sentence of death passed by a court of 30 days The date of the
section or by a High Court in the exercise of its sentence
original Criminal Jurisdiction.
(b) From any other sentence or any order not
being an order of acquittal -
(i) to the High Court 60 days The date of the
sentence or order.
(ii) to any other Court 30 days The date of the
sentence or order.
Under the Code of Civil Procedure,1908
(a) To a High Court from any decree or order; 90 days The date of the
decree or order.
(b) To any other court from any decree or order. 30 days The date of the
decree or order.
From a decree or order of any High Court to the Thirty days The date of the
same Court. decree or order.
SL.NO. DESCRIPTION OF SUIT PERIOD OF TIME FROM WHICH
LIMITATION PEROID BEGINS TO
RUN
For leave to appear and defend a suit Ten days When the summons
under summary procedure. is served.
Under the Arbitration Act,1940
(a) For the filing in court of an award; Thirty days The date of service
of the notice of the
making of the
award;
(b) For setting aside an award or Thirty days The date of the
getting an award remitted for service of the
reconsideration. notice of the filing
of the award.
Under the Code of Civil Ninety days The date of the
Procedure,1908, to have the legal death f the
representative of a deceased plaintiff plaintiff,
or appellant or of a deceased appellant,
defendant or respondent, made a defendant or
party. respondent, as the
case may be;
Under the same Code for an order to Sixty days The date of
set aside an abatement. abatement.
To restore a suit or appeal or Thirty days The date of dismissal.
application for review or revision
dismissed for default of appearance or
for want of prosecution or for failure
to pay costs of service of process or to
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furnish security for costs.
INDIAN LIMITATION ACT 1963 : Summary notes :

1) The objective of the act is to provide for limitation period for approaching the court in various
matters.
2) As per sections 3 of the act, if any party approaches the court after the expiry of period of
limitations the court shall not proceed with case.
3) However on its discretion if any court accepts the case offer expiry of period of limitations then it
is not illegal:- Bombay Dying case.
4) As per section 5 if a party approaches the court beyond the period of limitation, & court is
satisfied that such party was prevented by a sufficient cause then the court can extend the period
of limitations.
5) However, the benefit of section 5 is available only to appeals & not to the suit , as suits already
have a long limitation period.
6) Mistake of High court, Mistake of Counsel, serious illness, imprisonment, can be considered as
sufficient cause.
7) On the day of comments of period of limitations if any party was subject to legal disability then
limitations period disability , however the fresh period of limitation after expiry of legal
disability, the period of limitation starts when any member of group ceases its legal disability, it
cannot exceed 3 years.
8) If group of persons who have common rights are under legal disability the period of limitation
starts when any member of group ceases its legal disability.
9) If limitations period beings to run no subsequent disability can prevent it (sec 9) however the
letter of administrations of creditors property has been granted to debtor. The limitation period
suspends the debtor, till the time debtor is in charge of creditors property.
10) Commencement of period of limitation :
a) In case the decisions of any court is to be challenged then the time required for obtaining the
copy of appeal shall be excluded, the time period consumed in making app for the copy will not
be excluded.
b) The period doing which app of bankrupt or indigent person is pending
c) In case of arbitral award, the period beings to run when the copy of arbitral award is received if
suit is to be file against the govt. then the period of statutory notice. To the Govt. is excluded in
limitations period
d) Receiver is granted 3 months time from the date of his appointment to execute the decree of the
court.
In the a party or it agents makes a written and singed acknowledgement is it‘s debts or makes a
part payment of its debts or interest within the period of limitation from the date of such
acknowledgement or part payment.
11) If a person enjoys the continuous possession of an easements for a period of 20 to 30 years if the
property belongs to Govt. such persona gest ownership by possessions.
12) The limitations Act is not unconstitutional as the constitution allows for the period of limitations
however there should no limitation period for applying to the court in the case relating to breach
of fundaments rights but the court can refuse to entertain case relating to fundamental rights, if
the court is approached beyond limitation period (in exceptional case only)
13) Under the limitations Act, the limitations period is classified the period of 30, 12, 1-3 year
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CHAPTER: 7
8
CIVIL PROCEDURE CODE, 1908
JO TUMHE BEKOOF BANYE TUM KARO US KI AISI KI TAISI,

AUR DHYAN MAIN RAKHO CPC
1. This is Procedural Law.

2. Civil Procedure Code (CPC) sets out the procedure to get
justice in the civil cases.
Q.Why should a company secretary study Civil Procedure Code?

Ans. A company secretary has to deal with various matters
related to Civil Laws, viz. Companies Act, Security Laws,
environmental Acts, Contract Act, Foreign Exchange Management
Act, etc. So, if a company makes breach of any civil laws, a civil
liability arises in majority of cases. To tackle the situation, the
company secretary should have knowledge of procedural
requirements to get the justice in civil cases.
Scheme of the Code:
The Civil Procedure Code is divided into 2 parts. The first part contains 158 Sections & Second part
contains Rules, orders & schedules under the Act.
It is an adjective or procedural law it deals with the procedure, mode or manner in which a person is
given or denied the rights or liabilities.
DEFINITIONS
CAUSE OF ACTION
It means Reasons for approaching the court. Basically if a party is aggrieved by some act of other party it
approaches the Court for a relief by filing a plaint in the Court, plaint is a statement in which the
plaintiff (shikayatkarta) states the cause of action and on reading the cause of action the Court decides
whether to accept the case or not. "Cause of action" basically it means the facts which plaintiff states in
his plaint to get a remedy by the Court and if these facts are denied by the defendant then the plaintiff
will have to prove these facts to get the justice in the Court.
The person who files plaint is known as plaintiff and the person against whom plaint is filed is known as
defendant.
1) It means the reasons which are to be proved by the aggrieved party in order to get the justice.
(Court Jane ki jo vajah hai, use ham Cause of Action kahte hai, aur agar ek party ise na mane to hame
proof karna padega, tabhi hame court se nyay milega)
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DECREE ORDER JUDGEMENT
As per section 2(2) of CPC, Section 2(14) - It is a formal Section 2(9) - It is ground or reason,
1908, It is a formal expression of a court & in a on the basis of which any decree is
expression of the court. It single suit many orders can passed. The court comes to a
is passed once, in a single be passed. Basically the conclusion on basis of Judgement. In
suit (except when decision of the court which other words, a "judgement" is the
preliminary decree is not is not a decree is an order. decision of a Court of justice upon
passed) & it is conclusive in For example in a case a the
Nature. It also includes party asks for presentation respective rights and claims of the
rejection of plaint and of evidence in the case but parties to an action in a suit
determination of question the court passes an order submitted to it for determination
under section 144 (decision and refuses the permission. (State of
of superior court on appeal) Its an order, it‘s a formal Tamilnadu VS hangaval)
expression but it does not
finish the case.
An appeal as well as second No appeal can be preferred
appeal may be preferred in in case of order. The appeal
superior court against a can be made only against
decree. appealable order given in
the code.
Decree can be passed only Orders can be passed on
against plaints. petitions & applications.
Decree can be passed only Even the quasi-judicial Even the quasi-judicial bodies can
by the courts and not by bodies can pass orders. pass judgment.
quasi judicial bodies.
Court ka Antim Nirnay Court ka Aadesh Faisle ka karan
Lets Discuss in Detail

Decree
Following conditions are essential for a decree:
a) There must be an adjudication.
b) Adjudication must be given in suit.
c) Adjudication must have decided the right of the parties.
d) There has to be a formal expression of adjudication.
So basically adjudication is communicated in the form of decree.
DECREE DOES NOT INCLUDE FOLLOWING AS PER SECTION 2(2)

1) Any Decision (adjudication) from which appeal can be preferred in the superior court as appeal from
an order.
2) Any order through which court rejects any application for default.
KINDS OF DECREE
PRELIMINARY DECREE
CASE KHATAM NAI HUA, FIR BHI COURT KISI PARTY KI MADAT KAR SAKTA HAI,
PRELIMINARY DECREE KE ZARIYE
Where an adjudication decides the rights of the parties with regard to all or any of the matters in
controversy in the suit but does not completely dispose of the suit, it is a preliminary decree.
If the court is not in the position to pass the final decree on account of some reasons and if the court
wants to decide upon rights of some party before passing of the final decree, in this case the court can
pass preliminary decree, the preliminary decree gives the right to the party which are to be finally
decided by the Court in final decree.
Preliminary decree is not dependent on final decree and if preliminary decree is set aside on appeal even
the final decree will not stand. Rather final decree is dependent on preliminary decree and is
subordinate to preliminary decree.
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In Shankar vs Chandrakant, The Supreme Court, stated that a preliminary decree is one which declares
the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings.
CPC provides for passing a preliminary decrees in several suits such as - suit for possession and mesne
profits (money to be recovered from the person who occupies the property without permission of the
owner), administration suit, suits for pre-emption, dissolution of partnership, suits relating to mortgage.
In Narayanan vs Laxmi Narayan, it was held that the list given in CPC is not exhaustive and a court may
pass a preliminary decree in cases not expressly provided for in the code.
FINAL DECREE
When the court settles all the questions in controversy between the party and nothing remains to be
decided afterwards + suit has been completely disposed of by such degree, then such decree is
referred as final decree
For example: A had filed a suit against B, for recovery of Rs. 5000 the court has decided the amount,
and has also declared the manner in which such amount will be recovered, it amounts to final
decree.
There can be two types of final decree:
a) When decree is passed and no appeal is preferred within the period of filing appeal or if the
appeal is filed, the decree has been decided by the highest court.
b) When the court passing the decree completely disposes of the suit.
Generally there will be only one final decree but when two cause of actions are joined together in
one case then there can be more than one final decree.
Partly Preliminary and Partly Final Decree

A decree may also be partly preliminary and partly final, when the Court has adjudicated on some
matters and the court keeps on hold some matter to be decided later on.
For example: A had filed a Suit against B for possession of immovable property and mesne profits
(money to be recovered from the person who occupies the property without permission of the owner)
in this case the court passes a decree for possession of immoveable property, and orders for enquiry
in Mesne profits, this is partly preliminary and partly final decree. However if the Court decides on
possession and says that mesne profits will be decided in future then it is just preliminary decree.
Note: As per section 2 (2) of CPC 1908, an order for rejection of the plaint shall be considered as
decree if the rejection of plaint is authorised by CPC 1908.
TIME FOR PRONOUNCEMENT OF JUDGEMENT

JAISE SAMOSA LAGTA HAI BINA AALLU KE,
VAISE HI DECREE HOTI HAI BINA JUDGEMENT KE!
Decree becomes effective from the date on which judgment

is pronounced by court. It is the duty of the court to pass a
judgment on the date when hearing comes to an end.
If court could not pronounce a judgment on the date of

completion of hearing then it is the duty of the court to
pronounce judgment within a period of next 30 days
If it is not possible for the court to pronounce a judgment

within a period of 30 days, then in this case it is the duty of
the court to pronounce a judgment within a period of 60 days
(x+30+30) from the date of conclusion of the hearing and notice in this regard shall be given to both the
parties.
Decree shall be made as early as possible and not later than 15 days from the date when judgement is
pronounced.
The judgement will cease to have effect when decree is drawn.

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When judgement is pronounced its copy shall be immediately made available, so that the parties can file
appeal.
In the case of Kanaihyalal v/s Anupkumar, the supreme court set a side a judgement on the grounds
that such judgement was pronounced after a period of 2 years and 6 months from the date on which it
should have been pronounced
Section no 36 of CPC deals with execution, it means enforcement of the decree or order passed by the
court.
In the case of Durga choudharain vs Jawahar Singh ,it was decided that ,the high court cannot
entertain the 2nd appeal if an erroneous fact is produced before it.
Amendment of Decree
A decree once signed can not be amended however if there are clerical or arithmetical mistakes or on an
application for review of decree the decree can be amended.
ORDER
BHAIYA AISE ORDER JIN KE KHILAF APPEAL HO SAKTI HAI,
UNHE APPELABLE ORDER KAHTE HAI!
Order
The adjudication of the court which is not decree amounts to an order.
Similarities Between Decree and Order

a) Both relate to controversy.
b) Both are the decisions of the court.
c) Both are formal expressions of the court.
There can be no preliminary order but there can be a preliminary decree.
Appealable Orders
Appealable orders are contained in section 104 of CPC & against these orders only, an appeal can be
made.
An Appeal may be preferred against the following orders :
1) If the court has rejected any monetary / pecuniary claim through an order on the ground that claim
is false or vexatious (Not original), then appeal may be made.
2) If the court has rejected permission through an order for filing a suit against a public nuisance, an
appeal can be made.
3) If an order has been made which imposes a fine on any person or the order is for arresting any
person, these orders can be challenged if the arrest or fines are not through a decree.
4) If an injunction on insufficient grounds is made, appeal can be made.
5) Against any order mentioned in any schedule under civil procedure code.
Decree Order
Can be passed only when plaint is filed. Can be passes on plaints, applications and
petitions.
Conclusive in nature May or may not be conclusive
May be preliminary or final or partly There can not be any preliminary order
preliminary or partly final
In one case only one decree except when In one case many orders can be passed.
preliminary and final decrees are passed.
Decree is appealable unless specifically Only appealable orders can be appealed.
restricted.
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Second appeal can also be filed No second appeal can be filed even on
appealable orders.
Judgement
As per section 2(9) of CPC 1908, Judgement means the statement by the judge of the grounds of a
decree or order.
(beta bahut sare bacche judgement aur decree ke beech main confused hote hai, chaliye samjhiye – jaise
maine bataya ki cs main law hai, cs ke bad job acchi lagti hai, cs kam kharch main hota hai, cs karne se
aap apne sapne poore karte hai, cs se acchi wife ya husband mil jata hai, cs life hai, saste main ho jata
hai aur cs best hai – yeh sare reasons ke bad main ek line main kahta hun ki cs best hai! Ab is example
main jo sare reasons upar likhe hai wo sab judgement hai aur aakhiri main jo conclusion hai ke ―cs best
hai‖ decree hai)
Basically first judgement is passed, the judgement contains all the reasons and grounds of decree given
by the court, the decree is drawn on the points covered in judgement.
Essentials of judgement
a) Every judgement should contain concise statements of the case - that means details of the case,
like parties, facts, points of dispute etc.
b) The point of determination - the issues (dispute) between the parties
c) The decision on such issues.
d) The reason for decision.
e) As per Rule 6A of CPC, 1908, last paragraph of judgement shall indicate in precise terms the relief
granted by such judgement.
If judgement misses any of the above points it will be invalid, so we can say on the basis of above points
covered in judgement, decree is given, but the details of decree can be found in judgement.
The judgement is not formal expression but the decree is formal expression of the court.
The material evidences on issue are also stated in judgement.

Judgement Decree
These are the grounds of decree or order In decree it is not necessary to give grounds
Not a formal expression of the Court The decree has to be a formal expression of the
Court.
It must precisely state the relief granted It deals with the rights of the parties.
It is passed prior to the passing of decree Decree is passed after judgement is pronounced or
passed.
Judgement may be passed in civil as well as Decree is generally passed in civil cases.
criminal cases
The person in whose favour the decree is passed is known as decree holder and against whom decree is
passed is known as judgement debtor.
STRUCTURE OF THE CIVIL COURTS
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High Court
District Court
Small Causes Court/ City Civil court
District Court is subordinate to High Court, the court of small causes and civil court inferior to District
Court, are inferior than High Court and district court.
If there is no small Court then the case can be filed before civil judge junior division, if there is a dispute
between employer and employee it can be decided by labour court or industrial tribunals.
JURISDICTION OF THE COURT & VENUE OF THE SUITS

1) Jurisdiction over subject matters :
The jurisdiction to try certain matters by certain Court is limited by statute; e.g. a small cause court can
try suits for money due under a promissory note or a suit for price of work done.
Civil nature dispute includes right to property defamation, specific performance, injunction, recovery of
rent, custody of children, religious offices etc. A Civil court can entertain all types of civil cases unless it
is restricted by some law.
The subject matter of the Courts are fixed such as, case against tenant by landlord for ejection or
recovery of rent is filed in small causes Court as per the rent act.
2) Jurisdiction over persons :

Residents of all countries can be sued in the Indian Courts. Except Governments of Foreign Country.
3) Place of suing :
For every court, a territorial limit has been fixed by Government.
For example District Court has jurisdiction within its district.
4) Pecuniary Jurisdiction :
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Section 6 deal with Pecuniary jurisdiction and lays down that save in so far as is otherwise expressly
provided Courts shall only have jurisdiction over suits the amount or value of which does not exceed the
pecuniary limits of any of its ordinary jurisdiction. There is no limit on pecuniary jurisdiction of High
Courts and District Courts.
KINDS OF JURISDICTION
1) Original Jurisdiction :
When the plaint is filed in the Court, the Court exercises original jurisdiction over the plaint.
2) Appellate jurisdiction :
Appellate jurisdiction means a decision passed by the superior Court on appeal made by the party
when he is not satisfied with the original jurisdiction given by the Court. In other words appellate
jurisdiction means a jurisdiction exercised by the court on the appeal filed by party.
3) Original as well as Appellate Jurisdiction :

All courts except for small Civil Court (district or High Court or supreme court) are allowed to
exercise original as well as appellate jurisdiction.
There can be no appellate jurisdiction without any original jurisdiction. There can be an original
jurisdiction without appellate jurisdiction.
Plaint + Decree = Original jurisdiction.
Appeal + Decree = Appellate jurisdiction.
Supreme Court and high court have extra ordinary jurisdiction under Constitution. (to provide relief in
constitutional cases under writ jurisdiction)
In the case of Rex v. Boltan, it was decided that the

jusrisdiction of the Ciurt in respect of any matter does
not depend upon the truth or falsehood of facts but
upon the nature of case and the jurisdiction is decided
in the beginning and not at the conclusion of enquiry or
proceedings.
DOCTRINE OF RES SUB JUDICE : SECTION 10

AGAR EK COURT MAIN MAMLA SHURU HAI,
TO VAPAS USI MAMLE KE LIYE DOOSRE COURT MAIN MAT JAO
The word ‗Res‘Means a ‗matter‘ & the word ‗Sub-Judice‘ means under consideration or pending in the
Court of law. ‗Res Sub judice‘ means any matter which is pending before a court or has not been decided
by the Court. This concept is covered in section 10 of CPC.
1) According to the doctrine of Res Sub Judice, if any suit / case is pending in a competent Court of
law, the same suit between same parties under a same title for a same subject matter cannot be
filed in any other court of law.
2) If any other court of law is approached for the same matter which is ―Sub-judice‖ in any other
competent Court in India, then the Second Court shall not proceed with the trial. The second
court will stay the suit.
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3) This Doctrine or the Principle will save the precious time of court & will also avoid multiplicity of
suits, also the purpose is avoid conflict of decision.
4) The principal of res sub judice is not applicable if the suit is pending in the foreign court.
5) However, if the suit is pending in foreign court which is established by the Indian Government
than the doctrine of res sub judice will be applicable.
6) If the landlord had made an agreement to sell his property to his tenant and fails to perform the
contract due to which the tenant filed a case of specific performance in the Court. In the
meanwhile the landlord filed a case against the tenant for eviction of the tenant from the leased
property under rent control act, the tenant objected the suit filed by landlord on the ground of
res sub judice, the Court decided that both the suits have different subject matters and
subsequent suit can not operate as res sub judice (N.P Tripathi Vs. Daymanti Devi)
In the case of Manohar Lal vs Seth Hiralal, it was decided that provision of section 10 are mandatory
and the courts have no discretion.
CASE LAW :
Wings Pharmaceuticals V/s. Swan Pharmaceuticals, AIR 1999.
There were two companies: Wings pharmaceuticals and Swan Pharmaceuticals. Swan pharmaceutical
filed a plaint against Wings pharmaceutical in Mumbai Court for infringement of trade mark of medicine.
Afterwards, Wings pharmaceuticals filed another plaint in the Court of Ahmedabad for infringement of
trademark against Swan pharmaceutical. It is the duty of Ahmedabad Court to dismiss the plaint as the
principal of res sub judice will apply in the case.
In case of Life Pharmaceuticals vs Bengal Medical Hall it was decided that stay of subsequent suit can
be made at any stage.
DOCTRINE OF RES – JUDICATA : SECTION 11

AGAR EK COURT NE MAMLA DECIDE KAR DIYA HAI,
TU USI JHAGDE KE LIYE DUSRE COURT MAT JAO
1) The word Res – means a ―matter‖ & judicata means ‗already decided by the Court.‘ According to this
Doctrine, if a matter is finally decided & disposed of by the competent Court of law in India, then for
same subject matter, same parties under a same title cannot approach to a different Court.
The doctrine underlines the general principle that no one

shall be twice vexed for the same cause (S.B. Temple v.
V.V.B. Charyulu, The doctrine of res judicata prevails
over the doctrine of lis pendens where there is a conflict
between the two.
2) If parties approach to a different court for a same

subject matter which has already been decided by the
some other Court, the second court shall dismiss the
matters by applying the Rules of Res – Judicata.
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The issue or the suit itself is heard and finally decided, then it operates as res judicata and is not the
reasons leading to the decision (Mysore State E. Board v. Bangalore W.C. & S. Mills).
3) This rule will be applicable when the same matter has been already heard & decided by a competent
court.
4) A consent or compromise degree is not a decision by Court. It is an acceptance of something to which

the parties had agreed. The Court does not decide anything. The compromise decree merely has the
seal of the Court on the agreement of the parties. As such, the principle of res judicata does not
generally apply to a consent or compromise decree.
But when the court on the facts proved comes to a conclusion that the parties intended that the
consent decree should have the effect of deciding the question finally, the principle of res judicata
may apply to it.
5) When the Court reviews its decision or when any appeal is filed in the superior court, the principal of
res judicata does not apply.
When a suit has been decided on merits, and the appeal is dismissed on a preliminary point, it amounts
to the appeal being heard and finally decided and the decision of appellant Court operates as res
judicata (Mukunda Jana v. Kanta Mandal)
In short, this principle applies where an issue which has been raised in a subsequent suit was directly and
substantially in issue in a former suit between the same parties and was heard and decided finally.
Findings incidentally recorded do not operate as res judicata (Madhvi Amma Bhawani Amma v.
Kunjikutty P.M. Pillai,)
Supreme Court in Gouri Naidu v. Thandrothu Bodemma, decided that, even if erroneous judgement is
passed, same parties for same subject matter can not file a subsequent suit in the same level of the
Court. If the decision of the Court stated that the gift between the coparceners of HUF is invalid under
Hindu Law, the Principal of Res Judicata will apply in the subsequent suit also, even if the suit was
related to partition.
Application for amendment of decree
An application for amendment of a decree is not a ‗suit‘ and may be entertained. But if such an
application is heard and finally decided, then it will debar a subsequent application on general principles
of law analogous to res judicata.
However, dismissal of a suit for default, where there has been no adjudication on the merits of the
application, will not operate as res judicata. Similarly an application for a review of judgment if refused
does not bar a subsequent suit for the same relief on the same grounds. In the case of conflicting
decrees, the last decree alone is the effective decree which can operate as res judicata.
The Cases in which Res Judicata Applies The Case in which Res judicata Does not apply
(The Court will not accept subsequent Suit) (The Court will accept subsequent Suit)
If the Court has heard and decided the amendment Application for amendment of Decree
decree than it will operate as Res judicata
Suit passed by the Court that does not have Application for review of the decree.
jurisdiction but competent to try the suit.
If there is some error in the judgement or decree The Consent decree passed by the Court which just
passed by the Court. has seal of the Court on settlement made by the
party.
If the Court expresses its opinion on the consent If the application for review has been refused by
decree passed by the Court. the Court then subsequent suit can be started on
the same grounds for the same relief.
When the suit is decided on merits and appeal has Dismissal of suit on default and no decision has
been rejected on preliminary point. been given on merits (decision on merits means the
decision after hearing the parties and considering
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the facts of the case)
Conclusion: Res judicata applies when the matter has already been decided by the court, res sub judice,
applies when the matter is pending in the court and subsequent suit is started.
QUE:Explain the difference if any, in between ‗Res Judicata‘ and ‗Res Sub-Judice‘.
CONSTRUCTIVE RES – JUDICATA, EXPLANATION 6, SECTION 11

RES JUDICATA TO NAHI,
PAR US SE KAM BHI NAHI
The doctrine of constructive res judicata is based on the following grounds of public policy:
 There should be an end to litigation;
 The parties to a suit should not be harassed to agitate the same issues or matters already decided
between them;
 The time of Court should not be wasted over the matters that ought to have been and should
have been decided in the former suit between the parties;
 It is a rule of convenience and not a rule of absolute justice.
In case of representative suit or class actions, the decision passed by the Court binds all the parties to
the Suit, so if any party to representative suit brings a subsequent suit in respect of same matter, the
principal, of Res Judicata or Constructive Res Judicata will apply.
Decision given by Court which does not have Jurisdiction
Decisions of a “Court of limited jurisdiction competent to decide such issue” operates as res judicata
in a subsequent suit though the former Court had no jurisdiction to try the subsequent suit. The general
principle of res judicata is wider in scope than Section 11 which is applied when a case does not come
within four corners of Section 11. However, when the case falls under Section 11 but the conditions are
not fulfilled, the general principles of res judicata cannot be resorted to.
Exception :
In the second suit, if any party obtains a different title – subsequent suit will be allowed.
So it can be rightly concluded that if parties approach the Court with a different title & for the same
subject matter between the same parties, the Court will allow the subsequent suit.
PLACE OF SUING
As per section 15 the every suit must be started in the court of lowest grade.
1) For immovable Property :-
a) If the subject matter of dispute is an immovable property, the suit will be filed in the court
within whose jurisdiction the whole or some part of the property is situated.
b) The dispute relating to immoveable property may be on the following grounds:
a) For recovery, partition, for selling of mortgaged asset by the mortgagee.
b) For determination of any other right in immoveable property.
c) For receiving compensation for wrong done to immoveable property.

d) For foreclosure of sale or redemption in case of mortgage.
c) If there is any uncertainty or confusion in the mind of any party related to the place of filing suit,
any of the court can be approached and a written statement should be filed with the Court
Regarding the uncertainty – Section 18.
d) Property means property situated in India.
e) When the property is situated under the jurisdiction of different Courts, Section 17:
Where immovable property is situated within the jurisdiction of different Courts: Where the
jurisdiction for a suit is to obtain relief respecting, or compensation for wrong to immovable
property situated within the local limits of jurisdiction of different Courts, the suit may be
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instituted in any Court within the local limits of whose jurisdiction the property is situated
provided the value of the entire claim is summarized by such Court.
2) For any other subject matter :
a) The other suits relating to any moveable property or breach of a contract or any promissory note,
bill of exchange etc. can be filed :
1) Where cause of action arises.
2) Where the defendant resides.
3) Carries on any business, trade or profession, has a branch office, at the option of plaintiff.
4) In case there are one or more defendants, then the plaintiff may approach the court where
cause of action arises or where defendant or each of defendant resides.
5) If a suit is started at a place where a single defendant resides, the other defendants may take
objection, however in this case, the permission of the Court may be obtained for starting a
suit where one of the defendant resides.
In the case of Angile Insulations v. Davy Ashmore India Ltd, it was decided that, if in any case the two
or more courts have a jurisdication on the ground that a part of cause of action arose in the jurisdiction
of two different courts, so in this case if the parties to contract agree that the case or dispute will be
filed in the particular court only then such contract will be a valid contract.
However it shall be remembered that through a contract it can not be agreed that suit will be filed in
the court which has no jurisdiction at all, i.e. in whose jurisdiction neither cause of action arose not
defendant resides.
3) Cases where company is a defendant :
In case where a plaint is to be filed against the Company, such plaint can be filed in the court in
whose jurisdiction the registered office of the company is situated. However in case of Companies or
corporation, it shall be considered that it carries its business at its principal office or sole office, if
cause of action has not arisen at any other place.
So for example A real estate company has its head office at Delhi and branch offices at Ahmedabad,
Patna and Indore. A dispute cropped up between Sorabh and the company in respect of a transaction
through Ahmedabad office, in this case, suit can be started at Delhi as the head office is located at
Delhi, but as the cause of action has arisen at ahemdabad so the case can even be started at
Ahemdabad.
In the case of a body corporate or company it shall be deemed to carry on business at its sole or
principal office in India, or in case of any cause of action arising at any other place, if it has a
subordinate office, at such place.
SET OFF, COUNTER CLAIM AND EQUITABLE SETOFF
Set off, counter claim and equitable setoff are basically rights of defendant. The defendant files his
defence by a written statement in the Court.
Set off
1) The concept of setoff has been defined under order 8 and rule 6 of civil procedure code.
2) When a suit related to monetary claim has been started in the court & plaintiff makes claim from
defendant for a certain sum of money. It is basically a cross claim by the defendant in respect of
fixed amount (ascertained sum) of money and for this amount even a separate case could have
been filed. The court can accept the claim of set off to avoid multiplicity of suits.
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3) Set off is a defense for defendant if he has to claim ascertained sum of money from plaintiff.
4) One of the conditions for claiming set off is that both the claims must be relating to money
(plaintiffs and defendant) time barred debt can not be claimed in set off.
5) In the same suit, the defendant also has a right to file a written statement in the court for
claiming a set off in respect of the money which he has to recover from the plaintiff.
6) The amount of setoff claimed by the defendant should not exceed, the claim of plaintiff, and the
pecuniary limits of the Court.
7) Set off is the right of defendant. Basically liquidated damages are claimed by the defendant
through set off, from the plaintiff.
8) Right of set-off should be claimed from the party who is under an obligation to pay money to the
defendant.
9) Even if plaintiff has withdrawn his case, the claim of set off is not affected. In set off the claim
may arise from different transactions but the claims must relate to same right i.e. the right to
claim money.
10) For example: A student (plaintiff) claimed refund of fees though a suit but the teacher
(defendant) claimed that the student had borrowed Rs. 5000 from him.
11) The defense of set off, by the defendant, shall have the same effect as a plaint in a cross-suit so
as to enable the Court to pronounce a final judgement in respect both of the original claim and of
the set-off, and the judgement of the court in respect of the origional suit and set off shall not
affect the right of lien on the amount of decree, which is payable to the advocate towards his
fees (matlab court ka jo faisla aaega us se vakeel ka adhikar faisle ko implement hone se rokne ka
agar use uski fees nai mili hai, use fark nai padega)
Counter Claim :
1) It is a weapon at the hands of defendant (set off was defense). In case of counter claim even
unascertained sum of money can be claimed. The right of counter claim may even arise from
different transactions.
2) This right is in addition to the right of claiming set-off.
3) The defendant can file counter claim at the time of submitting his defense or it can even be filed
after filing of defense (order 8 Rule 9) or even if new claims arise after filing of defense then too
it can be filed.
4) The counter claim is treated as sperate plaint of defendant in the same case. Counter claim is not
limited to money suits only it means in other cases also counter claim can be filed by defendant.
5) The Amount of counter claim should not exceed the pecuniary jurisdiction of the court.
6) Counter claim has been defined under order 8 and Rule 6 (A) of Civil Procedure Code.
Example: if Ramesh has filed a case against shyam for possession of property, so the Court issued a
Summon to Shyam, now when Shyam filed his written statement shyam stated that the property does not
belong to Ramesh Shyam is the Owner of said property.
Equitable Setoff :
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1) If the claims between the parties arise out of the same transaction and the claim of defendant is
for an unascertained sum of money, in this case the defendant will be allowed to claim for an
equitable set off in the same suit.
2) This principle has been evolved to avoid the cross suits in between the parties for a pecuniary
matter.
3) When parties make cross demands of money on account of a single transaction the court may
grant equitable set off.
4) The concept of equitable set of is not recognized in India. However, the Court allows, when
parties claim equitable set off.
5) Setoff granted to defendant for an uncertain amount of money on reasonable grounds is known as
equitable set off.
6) For example, A Servant was not paid salary for last 6 months and he filed a case against the
owner but the owner said that servant has broken his valuable articles.
7) Example: A student claimed refund for his fees as he was not satisfied by the classes the coaching
class claimed equitable set off for damages to the property done by the student.
8) In a suit by a washerman for his wages, the defendant employer should be able to set off the
price of the clothes lost by the plaintiff. In such a case, driving the plaintiff to file another suit
would be unfair. A set off in such situations is called an Equitable Set off.
Set off Counter Claim Equitable Set off

Right of Defendant Right of Defendant Right of Defendant
Ascertained sum of money Ascertained or unascertained Unasertained sum of money.
sum of money
Court is bound to accept Court is bound to accept Court is not bound to accept,
depends upon discretion of
court.
Claims can be on account of Claims can be on account of Claims has to be on account of
same or different transactions same or different transactions same transaction.
Both the claims must relate to Claims can relate to money or Case must relate to money.
same rights i.e. recovery of other claims also
money.
Time barred debt can not be Time barred debt can not be Time barred debt can be
claimed as set off. claimed even in counter claim claimed in equitable set off.
Court fees is required Court fees is required Court fees is not required for
claiming equitable set off.
Treated as separate plaint Treated as separate claim May be treated as separate
claim if court accepts it.
Must be filed at the first Has to be filed at the time of Must be filed at the first
hearing of suit and not filing defense or even hearing of suit and not
afterwards, however court can afterwards. afterwards, however court can
accept even after first heating accept even after first heating
of suit. of suit
It‘s a defense Its an attack by defendant Can be considered as defense.
INJUNCTION
When a party does something which he is under obligation not to do, the court grants an injunction i.e.
stay order.
TEMPORARY INJUNCTION
Basically temporary injunction is a relief which can be granted by the Court at any stage of the suit
on an application of the party and it continues up to specified time or till further orders of the
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Court, through this injunction the Court provides a temporary relief to the party applying for
injunction.
1. When a party makes an application to the court:
a. That the subject matter of the dispute is in the possession of the other party and such other
party may:
i. Destroy or damage such property or the property is at the risk of being wasted or
damaged or transferrerd, OR
ii. Transfer that property so that the creditors or any other person may not use the
property.
OR
iii. Any party threatens the other party to dispossess the party having possession of the
property or the other party threatens to dispossess the plaintiff or in any other manner
cause injury to the plaintiff in relation to any property in dispute in the suit.
It would be necessary for the party applying for temporary injunction, to satisfy the Court that:
(i) substantial harm or injury would be suffered by him if such temporary injunction (till the disposal of
the suit) is not granted
(ii) the balance of convenience (facts of the case) lies in his/ her favour and
(iii) that such loss or damage or harm cannot be compensated by damages
In all the above cases the court after making reasonable enquiries, pass a temporary injunction to stop
the parties from doing the above acts. The party applying for the temporary injunction will have to give
an affidavit to the Court for proving the above points.
INTERLOCUTORY ORDERS – Order 39, Rule 6 to 10

CASE CHALNE KE DAURAN,
KISI PARTY RELIEF MIL JATI HAI, Maal Kharab Ho Jaye,
US SE Accha Hai, Use Bech DO!
The court has power to order sale of immoveable property or any property which is subject to speedy
and natural decay and is the subject matter of dispute in a suit, for just and sufficient reasons to be at
once.
The court can also order for detention, preservation or inspection of any property which is the subject
matter of suit, however before making such order the court will give notice to the opposite party unless
the court is satisfied that the notice may delay the proceedings and the object of the order will not be
fulfilled.
In case the property which is subject to dispute has some revenue or rents due to the Government and
the party in possession neglects to pay the rent or revenue to the Government, in this case any party
claining the property may be put in the possession of the property immediately if such other party agrees
to pay such revenue or rent to the Government. The Court may order the defaulter to pay the revenue
and interest to the other party by a decree.
In case the subject matter of the suit is money or some other thing capable of delivery and a party to
suit admits that it holds money or thing as a trustee for another party or it is due for delivery to that
party, in this case the court may order such party to deliver to that party or deposit in the Court that
particular money or property.
DETENTION PRESERVATION AND INSPECTION OF SUBJECT MATTER OF SUIT

There is a dispute relating to a property, then in such case; the court on application of any party
(defendant or plaintiff) may order for:
1. For inspection of subject matter of the suit by the authorised person.
2. The authorized person may also be authorized to enter into premises where such subject matter
is kept.
3. Such person may also be authorized to collect samples of subject matter/ property.
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Note : Before ordering for inspection the court generally gives notice to the opposite party, however if
the court believes the notice will destroy the purpose of inspection in such case no notice will be issued
to opposite party.
DEPOSIT OF MONEY IN COURT RULE 10

1. When there is a contract between two parties and one of the party believes that other party will not
perform the contract;
2. In such case, the party may move to the court and file an application for directing the other party to
deposit money in the court;
3. If the court is satisfied with the application the court may ask the other party to deposit a sum
money, which shall be repayable only after performance of the contract.
DEPOSIT OF PROPERTY IN COURT

1. If a person holds a property in a capacity of a trustee and he accepts that he holds the property in
the capacity of trustee;
2. In such case, the court may ask such person to deposit such property with the court.
ADMISSION
Means acceptance of fact by one party in whole or in part, admission may be made :
1. In pleading or
2. In interrogation or
3. Under an agreement or
4. By notice
Institution of the Court (Start of legal procedure in the Court) :
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MISJOINDER OF THE PARTIES
BHAI AISI PARTY KA CASE MAIN AANA,
JIS KA KOI INTERSTE NAI HAI CASE MAIN!
When more than one person is involved in the case as plaintiff or defendant, and the case relates to
same questions of law and facts, then both the plaintiffs may together institute a suit or may also
institute a separate suit. So when 2 or more parties come together and file a single case in respect of
same matter, it is referred as joinder of the parties.
However when two parties join together in a case in which right to relief arise out of the different act or
transaction brought by the plaintiffs or against the defendants or there is no common question of law, in
this case it is treated, that, there is a misjoinder of parties.
When two parties join together to file a case against a person which suh case does not involve same
question of fact and same question of law or when the case is filed against the defendents against whom
separate cases must have been filed it will be referred as misjoinder of the parties.
Example: X who is a travel agent has taken Rs. 500 from Mr Y for a Goa trip and Rs. 200 from Mr. Z for
Goa trip, now X has made a defulat with both the parties, now in this case Y and Z may start different
suits against X or they may also join together and file a single suit as the case involves same questions of
fact and law, it refers to joinder of the Parties. But in this case if X had taken Rs 500 from Y for Goa Trip
and Rs 200 from Z for selling A Book, and made default with both i.e Y and Z and in this case Y and Z
plan to start a case together against X, it will result in to misjoinder of the parites as the case has
different questions of fact and different questions of law.
"Cause of action" basically it means the facts which plaintiff states in his plaint to get a remedy by the
Court and if these facts are denied by the defendant then the plaintiff will have to prove these facts to
get the justice in the Court.
The cause of action must be a prior condition, to the, institution of the suit. It consists of two factors (a)
a right, and (b) an infringement for which relief is claimed.
Every breach of contract gives rise to a cause of action and a suit may be instituted to secure the proper
relief in the place—
(a) where the contract was made, or
(b) where the breach has occurred, or
(c) the place where money is payable.
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The place of breach is the place where the contract had to be performed or completed.
Where the place of payment is not specified, it shall be determined from the intention of the parties.
Misjoinder of Causes of Action — If the plaintiffs are not jointly interested in all the causes of action
there is misjoinder of causes of action.
All objections regarding misjoinder of parties or of cause of action should be taken at the first hearing of
the suit and before the settlement of causes unless the ground for objections had subsequently arisen.
IMPORTANT STAGES IN PROCEEDINGS OF THE SUIT

1) Summons is a notice which is sent by the court to the defendant for producing himself into the
court of law. Summons can also be sent to produce any document or evidence in the court of law.
2) The defendant has to give reply of the summons within 30 days of service of summons.
3) Service of the summons means the date on which the summons was sent by the court.
4) If the defendant was present with plaintiff at the time of filing the suit / plaint, in this case no
summonses are required.
5) The defendant can present himself through an advocate, if summons does not require the
defendant to present himself personally.
6) Every summons issued by the court must be signed by the Judge of Special Court or authorized
officer of the Court, along with the seal of the Court.
7) If the requirement of personal appearance of the defendant or plaintiff is felt by the Court, then it has to
make an order for such appearance. The summons must contain a direction that personal appearance is for
the settlement of issues only or for the final disposal of the suit.
8) Every summon must be accompanied by a copy of the plaint. Where no date is fixed for the appearance of
the defendant, the Court has no power to dismiss the suit in default.
9) The summons must also state that the defendant is to produce all documents in his possession or power
(means he does not have but can produce) on which he relies in support of his case.
10) The ordinary mode of service of summons i.e. direct service is by delivery or tendering a copy of it signed by
the judge or competent officer of the Court to the person summoned either personally or to his agent or any
adult male or female member of his family, against signature obtained in acknowledgement of the services
DELIVERY OF SUMMONS BY THE COURT

Rule 9 substituted by the Code of Civil Procedure (Amendment) Act, 2002 provides that
In case the defendent or his agent who is empowered to accept summon resides within jurisdication of
court in which the suit is started, unless the court directs otherwise, the summon shall be delivered to
the proper officer who may be the officer of the court other than the court in which suit is started so
that he or his subordinate could deliver the summon or summons could been given to courier which is
approved by high court by such officer .
At the expenses of plantiff, the summon may be delivered by sending the copy of summon by
registered post with an acknowledgement due, addressed to the defendent or his agent or by speed
post or by courier service which is approved by high court or any other means of sending documents
including facts or emails.*
In case the defendent resides outside the jurisdiction of court and if the court directs that summons
may be served by the modes referred as above* except by registered post, the provisions of rule 21
shall not apply (rule 21 deals with service of summon when the defendant resides within jurisdiction of
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another court).
When the court receives the signed copy of acknowledgement or any other receipt by the defendent
or his agent or if the court receives back the parcel containing the summon with the note that
defendent or his agent or employee has refused to accept summons when tendered to him, in this
case the court shall declare that summons are duly delivered to the defendent.
In case the acknowledgement by the defendent does not reach to court within 30days of services of
summon the court shall make declare that summon is duly delivered.
If the court is satisfied that the defendent is willfully absent or keeping out of the way, so as to avoid to
summon of service or for any other reason the summons cannot be delivered in ordinary course, in this
case the court shall order that summons be served by affixing a copy of summon in some conspicuous
place in the court house and also on some conspicuous place of the house where the defendent has
last resided or carried on business or personally worked for gain asper knowlegde of court or in other
manner that the court thinks correct this is known as substituted service of summon .
Same provisions apply when summons are to be served on witnesses.
DEFENSE BY THE DEFENDANT

1) The Defendant will have to produce his defense within 30 days of service of summons.
2) The court can grant additional period of 60 days on sufficient reasons shown by the defendant for
not producing a defense within 30 days (x + 30 + 60).
3) In the case of disputes covered under the Commercial Courts Act, 2015 if the defendant fails to file the
written statement within a period of 30 days, he shall be allowed to file the written statement on such other
day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as
the Court deems fit, but within 120 days from the date of service of summons and on expiry of the said
period, the defendant shall forfeit the right to file the written statement and the Court shall not allow the
written statement to be taken on record.
4) Where the defendant bases his defence upon a document or relies upon any document in his possession in
support of his defence or claim for set-off or counter claim, he has to enter such document in a list and
produce it in Court while presenting his written statement and deliver the document and a copy thereof to
be filed within the written statement.
5) Any document which ought to be produced in the Court but is not so produced, such document shall not be
received in evidence at the time of hearing of the suit without the leave of the Court (O.8, R.1 and 1A).
However this rule does not apply to documents produced for the cross-examination of the plaintiff witnesses
or handed over to a witness merely to refresh his memory.
6) Besides, particulars of set-off must be given in the written statement. A plea of set-off is set up when the
defendant pleads liability of the plaintiff to pay to him, in defence in a suit by the plaintiff for recovery of
money. Any right of counter claim must be stated. In the written statement new facts must be specifically
pleaded. The defendant must deal specifically with each allegation of fact of which he does not admit the
truth. An evasive denial is not permissible and all allegations of facts not denied specifically or by necessary
implication shall be taken to be admitted.
APPEARANCE OF PARTIES IN THE COURT OF LAW
Appearance of parties and consequence of non-appearance – If both the parties do not appear when the suit is
called on for hearing, the Court may make an order that the suit be dismissed (O.9, R. 3 and 4). If the defendant is
absent in spite of service of summons and the plaintiff appears, the Court may proceed ex-parte.
In case the defendant is not served with summons, the Court shall order a second summon to be issued. If the
summons is served on the defendant without sufficient time to appear, the Court may postpone the hearing to a
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further date. If the summon was not served on the defendant in sufficient time due to the plaintiff’s default, the
Court shall order the plaintiff to pay costs of adjournment.
Where the hearing of the suit is adjourned exparte and the defendant appears at or before adjourned hearing and
assigns a good cause for his previous nonappearance, the defendant may be heard in answer to the suit but he may
be ordered to pay the cost of adjournment or any other condition may be imposed against him.
The defendant is not stopped from taking part in the proceedings even though he may not be allowed to file a
written statement, in case he was not present in the first hearing.
If the plaintiff is absent and the defendant is present at the hearing of the suit, the Court shall make an order for the
dismissal of the suit, unless the defendant admits the claim of the plaintiff or a part of the claim & in this case the
Court shall pass a decree in favour of the plaintiff as per the admission of the defendant and shall dismiss the suit to
the extent of the remaining claim (O.9, R.8).
In any case in which a decree is passed ex-parte against a defendant he may apply for setting aside the decree on the
ground that the summons was not duly served on him or that he was prevented by any sufficient cause from
appearing when the suit was called on for hearing and the Court shall set aside the decree on such terms as to costs
payment into Court or otherwise as it deems proper and shall appoint a day for proceeding with the suit (O.9, R.13)
Que: Mr. X being a defendant in a suit, Could not reach the court when his case was called for hearing by the
Court, so the court passed an ex parte decree against Mr. X. As per the provisions of CPC what are the remedies
available to Mr. X.
A defendant has four remedies available if an ex-parte decree is passed against him :
(i) He may file an appeal against the ex-parte decree under Section 96 of the C.P.C.
(ii) He may file an application for review of the judgement.
(iii) He may apply for setting aside the ex-parte decree.
(iii) A suit can also be filed to set aside an ex-parte decree obtained by fraud but no suit shall lie
fornon-service of summons.
It is open to a party at the trial of a suit to use in evidence any one or more of the answers or any part of the answer
of the opposite party to interrogatories without putting in the others or the whole of such answers. But the court
may direct that any connected answer should also be put in
KINDS OF APPEALS
Appeals are not specifically defined in CPC, 1908 however the application by a party in the superior
court to set aside the decree or revise the decree of subordinate court is referred as appeal. Right of
appeal is not a natural right but it is given by law. Parties by making a mutual agreement do not get the
right to appeal but this right is granted by law. It is a substantive right (right given by law) this right can
also be taken away by changes in law.
In the case of Gujarat Agro Industries Vs Municipal Corporation of Ahemdabad, it was decided that,
though the right of appeal is a statutory right and if the right of appeal is conditional then it can not be
said that it affects article 14 of Constitution of India.
Appeal against an original Second Appeal : Appeal against orders

decree : :
When a court exercises on This appeal is filed against Appeal can be made
original jurisdiction & appeal is
the decree or judgement only against
preferred by a party against passed by the appellate appealable orders.
the decree of the court. court. Second appeal lies to
the High Court and the High
When an appeal is made Court accepts the second
against the decree passed by appeal when the High Court
the court of lowest grade. is ssatisfied that the case
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When an appeal is preferred involves substantial
against a decree granted by a questions of law. Whenever
court on a plaint made by a the Court subordinate to
party. the High Court passes any
In all the above mentioned 3 decree on appeal, as a
cases appeal is made against an result of this if further
original decree. appeal is filed in the High
Court it is referred as
second appeal.
Questions of Law Include:

1. the issues relating to the
case not solved by the
lower court and also by the
first appellate court.
2. The issues that are
wrongly solved by the lower
court and the appellate
court.
In the case of Chunilal Mehta and Sons v Century spinning and weaving company ltd, it was held that
substantial question of law means the issue that is debatable and not clarified in the previous case and
also deals with public importance.
Appeal to Supreme Court

When the High Court exercise original Jurisdiction on any matter the appeal can be filed in supreme
court if:
The High court certifies that case involved a In the opinion of High Court the case should
substantial question of law be decided by supreme court.
The other appeal that can filed in supreme court:

a. Appeal in constitutional cases:
The High court certifies that the case involves substantial question of law under article 132.
b. Appeal in civil cases:
The decree, judgement or order passed in original jurisdiction or appellate jurisdiction may be
challenged in supreme court if the high court issues a certificate that the case involves substantial
questions relating to law with the appeal to supreme court, the copy of judgement, order or decree
has to be filed in the court.
c. Appeal in criminal cases:
In criminal cases appeal can be filed in supreme court with or without the certificate from High
Court.
d. Special leave petition:
KISI BHI COURT KE DECISION KO DIRCECTLY,
SUPREME COURT MAIN CHALLENGE KARO!
Article 136 of Constitution of India grants a power to supreme court to entertain appeals against the
decisions of any court or tribunal ( except military tribunal) when such decisions is challenged through a
special leave petition.
When the High court refuses to grant a certificate regarding the case to be fit to be tried by supreme
court then also we can file a special leave petition in supreme court.
To accept or not to accept, the special leave petition is purely a matter of discretion of supreme court
and the Supreme Court cannot be compelled to accept special leave petition.
4. Appeal against orders
Appeal can be made only against appealable orders given in CPC.

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The word substantial question has not been defined anywhere however in the case of
REFERENCE, REVIEW &REVISION

1) Reference :
The concept of reference is covered under section 113 of CPC.When a suit has been filed in any court
of law & such court wants to obtain an opinion from the High Court about the subject matter of the
suit before exercising any jurisdiction & the high court may pass the orders as it thinks appropriate in
relation to the subject matter of the suit.
Reference may be made during pendency of the suit.
In the following cases the subordinate Court can make a reference to the High Court:
1. In case of any doubt relating to validity of an act, rule, order.
2. When the Court believes that particular case is outside its jurisdiction.
3. When Court believes that it is important to take an opinion of the High
Court on the matter.
In the case of Diwali bai Vs Sadashivdas, it was decided that the reference must be made before passing
of judgement of the case.
Even the parties to the suit can make application to the Court for referring the case to the High
Court..
2) Review :
It is Covered under section 114 of CPC. Right to review is available with the party who is dissatisfied
by an order or decree passed by the court. An Application of Review can be made in the same court
which has passed a decree or order. Application of Review can be made on following grounds :
a) Discovery of any new evidence, document, record, information related to the case.
b) Any mistake in the decree or judgment passed by the court.
c) Or on any other sufficient ground.
Review can be made after the disposal of the cases.
In the case of Rakesh Baksh Vs Rajeshwari Kunwar it was decided that, even if the appeal is
rejected by the superior court, the party has the right of making review application.
As per Limitation Act, once the decree or order is passed the review application must be filed within
30 days of passing of such decree or the order. The decree or order passed on review shall be final
and binding on the parties.
3) Revision :
a) Sec. 115 deals with Revision.
b) The High Court can call for records related to any case, which has been decided by any
subordinate Court & against which no appeal has been made. It is the discretionary power of the
High Courts
c) The High Court will call for Records when the High Court believes that:
1) Subordinate has exercised a jurisdiction which is not within its Authority.
2) The Subordinate court has failed to exercise jurisdiction.
3) The subordinate court has exercised jurisdiction illegally or with material irregularity.
The concept of revision is made to prevent illegal exercise of jurisdiction by the inferior courts. Revision
is made once the case has been decided or an order has been passed + no appeal lies on the case decided
by the inferior court.
The High court can itself revise the case or the party to case can also apply for revision. As per
Limitation Act, 1963, the application for revision of decree or order is to be made within 90 days of
passing of decree or order.
Reference Review Revision

It can be made only to the High It is done by the Court which has It is done by the High Court.
Court passed the decree
The case is referred to the High The application for review is The case comes to High Court by
Court by the subordinate court. made by the aggrieved party. application of aggrieved party or
High Court on its own orders for
reopening of case.
Reference is made on questions Here a party is not satisfied by In revision the question relates to
of law, as to if the inferior court the decree or order jurisdiction of the inferior court.
has doubts with regard to any
law, provision of law, ordinance,
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regulation etc, the court can
refer the case to the High Court.
It is made when the suit is It is made when decree or order It is done when a jurisdiction has
pending. has been passed been exercised. No appeal can be
preferred when any decision has
been given by the High Court by
revising any case.
Reference is done by the Court to It is done by the Party Revision can be done by the High
the High Court Court Suo Mottu or parties can
also apply for revision.
QUE: Distinguish between review and revision under the Civil Procedure Code 1908.
DISCOVERY
It is the process of finding out material each a document from an adversery ,in order to solve a case and
reduce the controversy .discovery may be of two types.
DISCOVERY BY INTEROGATIONS:
It means a party to the suit ,with the permissions of the court may deliver interrogations (list of
questions ) in writing for the purpose of examining the opposite party however interrogatories are not
allowed for following purpose:
a. For obtaining the facts that deals exclusively with evidences of opposite parties ,case or title
b. For the purpose of obtaining information that deals with the confidential communication that deals
with communication between opposite party and his cunsel.
c. For the purpose of obtaining information that is against public interest
d. Information that are of uncertain nature
1. DISCOVERY BY DOCUMENTS –
Under this discovery all the documents relating to the case that are in possession of the opposite party
can be inspected by the other party with the permission of the court .however a party may refuse to
produce document for inspection on the following grounds:
a. If such documents discloses parties evidence
b. It relates to communication between opposite parties and his counsel
c. When producing such documents is against public interest
d. When the party does not have the document
NOTE: As a general Rule no additional document can be introduced while filing an appeal. However this
rule does not apply when :
1. The subordinate court refused to admit the document.
2. Appellate court specifically demands it.
3. On any other ground.
When the applellate court accepts evidence it has to record the reasons in writing.
HEARING OF THE SUIT

The plaintiff has a right to begin, however if the defendant admits the the facts stated by the plaintiff
and also states that, on point of law or on some additional grounds the plaintiff is not entitled for a part
of relief claimed by him, in this case the defendant has a right to begin.
When there are several issues (bahut sare Vishay hai jis par bahas ho sakti hai) and the burden of proving
some issues lies on the defendant, in this case the plaintiff, when he begins may produce all his
evidences or he also has a choice of stating some evidences and reserving some evidences, to be
produced as an answer to the written statements (defence) which will be produced by the defendant.
When the evidences have been reserved by the plaintiff, he has to produce, only the evidences which
have not been reserved, if the plaintiff produces all his evidences, at the time when he begins the case,
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he will loose his right of producing the evidence as an answer to the written statement filed by the
defendant.
AFFIDAVIT
An affidavit is the written statement through which a party verifies the correctness of any statement,
and it is produced before any Court or Magistrate or any Oath Commissioner appointed by the Court or
before the Notary Public. An affidavit can be used in the following cases:
(i) the Court may at any time of its own motion or on application of any party order that any fact may be
proved by affidavits (Section 30).
(ii) The Court may at any time ask the the affidavit of the defendant do be read at the Court, however if
the other party requests the Court for his cross examination than the Court will not order for reading of
the affi davit.
(iii) upon application by a party, evidence of a witness may be given on affidavit, but the court may at
the instance of either party, order the deponent to attend the court for cross-examination unless he is
exempted from personal appearance.
Affidavits contain only such facts as the deponent is able of his own knowledge to prove however in case
of interlocutory applications the affidavit may contain the statements that are true in the knowledge of
some other person also. (O.19, R.2&3).
SUIT BY OR AGAINST A MINOR: Order 32

SUIT BY A MINOR
1) Minor is a person who has not completed age of 18 years or for whom or his/her property a
guardian has been appointed by a Court, or whose property is under a Suprintendence of the
Court of Wards, the age of attaining majority is 21 years.
a) Suit by a minor :
Suit by a minor can be started in his own name by a person who shall be next friend of minor.
b) Next friend of minor shall be a major person & of sound mind and his interest should not be
against the minor (matla use minor ke khilaf nai hona chahiiye) and the defendant can not
become next friend of minor.
c) If a suit is started without next friend by a minor, the defendant may apply the court to dismiss
the suit and the costs of suit will be paid by the person who filed such suit.
d) If minor attains majority during the continuance of the suit :
Minor can withdraw or discontinue a suit Minor can continue suit
The next friend of the minor will also be Minor will give an application to the court for
discharged. Minor (who has become major) will discharging, the next friend and for continuance
apply to the Court for dismissal of the suit) of the suit in his own name and title of the case
will be corrected.
The major (who wa minor before) a will have to
refund all expenses & loss sustained in And suit will be continued in the Name of Minor.
connection with the suit to the Defendant.
SUIT AGAINST A MINOR
1) If a suit is to be started against a minor, a permission from the court will have to be taken.
2) After analysing the case, the court can permit for a suit against a minor.
3) The court on its own or on an application made by a plaintiff, appoint a guardian for a minor.
4) The guardian appointed by a court cannot be removed by any party except in case of death,
insolvency or permanent incapacity and such guardian will also represent the minor in case
appeals, revisions, review and execution decrees.
However a court can remove him.
In the case of Ram Chandra VS Ram Singhit was held that a decree passed against a minor or a lunatic
without appointment of a guardian is a nullity and is void and not merely voidable
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SUMMARY PROCEDURE / SUMMARY SUIT
EK DAM JALDI SUNWAI KARNA,
TAKI NYAY JALDI MILE PARTIES KO
1) Summary procedure is contained in order XXXVII of civil procedure code.
2) Summary procedure means speedy disposal of the suit.
3) Summary procedure can be followed in the cases related to promissory note, bill of exchange,
payment of money, recovery of debt or liquidated demand of money payable by defendant on
written contract or on guarantee.
4) The following courts are authorized to pass a decree through summary procedure :
a) High Court,
b) City Civil Court or small civil court.
c) Any other court which is authorized by high court.
5) To commence the summary proceedings, the plaintiff has to proof the following points to the
court.
a) The suit is filed under order of 37 of civil procedure code.
b) The suits relates to matter covered under order XXXVII of Civil Procedure Code (i.e.
Promissory Note, Bill of Exchange, Cheques etc.)
c) The Relief claimed by the plaintiff is covered under XXXVII of Civil Procedure Code.
6) An application for commencement of summary Proceedings will be made to court in prescribed
form.
7) The Court will send a summons to the defendant & the defendant will have to reply within 10
days from the date of service of summons.
8) In summary proceedings, the defendant is not allowed to defend himself without permission of
court (leave to defend).
9) But Normally the Court grants permission to the defendant unconditionally for producing his
defense.
But in the following two cases permission is not granted by the court.
a) Where the claim of plaintiff is accepted by the defendant & deposited into the court.
b) Where the court believes that the defense produced by the defendant is not much important.
On the hearing summary suit, the plaintiff shall be entitled to judgement if the defendant has not
applied for leave (permission) to defend or if such application was made and is refused or if the
defendant is permitted to defend but he fails to give the required security within the prescribed time or
to carry out such other precautions as may have been directed by the Court.
After decree in summary suit, the Court may, under special circumstances set-aside the decree, and if
necessary, stay or set aside execution, and may give leave (permission) to the defendant to appear and
to defend the suit. (Order 37 Rule 4)
10) If the defendant does not reply the summon within 10 days or does not present himself within 10
days from the date of service of summon, the court may pass an ex-parte decree.
QUE:‗Explain provisions of summary procedure‘ including leave to defend under Civil Procedure Code.
Difference between summary suit and regular suit

Summary Suit Regular Suit
The defendant is not allowed to defend the suit, he In the regular suit the defendant has a right to
has to obtain the permission of the court and if defend the suit and no permission from the court is
does not apply for such permission in the required.
presecribed period or if the court has refused such
permission the plaintfiff gets a decree in his favor.
Summary suit can be filed only for 2 categories of These suits can be filed for any purpose and not
the suit i.e. promissory note, bill of exchange, restricted to particular category of the suit.
payment of money, recovery of debt or liquidated
demand of money payable by defendant on written
contract or on guarantee.
The court may set aside the decree in summary In regular suits the decree can not be set aside by
suit or set aside its execution and may allow the the court except on the gorund of review.
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defendant to appear and defend the suit in case it
seems reasonable to the court.
Summary Judgment
The provision with regaed to the summary judgement are covered under order 13A of civil procedure code 1908.
The commercial dispute can be on 22 matters such as agreement to sale of goods, exports or imports, franchising
agreements etc.
As per the order 13A of civil procedure code ,1908, the dispute which are recognized as commercial dispute under
the provisions of commercial court Act 2015 can be disposed of by the commercial courts under the commercial
court Act 2015, without a fullfledged trial and on the lines of summary suits as provided in civil procedure code
1908.
However, there is a difference that, the summary suit under order 37 relates only to the dispute as given in order 37
relating to recovery of fixed amount of money but summary judgement under order 13A can be in respect of any
commmercial dispute as given under Commercial Court Act, 2015.
One of the major problems relating to commercial disputes was that even the cases which could been decided on
merits and had a clear outcome were also subject to very long trial so this problem is resolved by order 13A and
commercial courts Act ,2015.
An application for summary judgement can be made by either party after services of summons and before farming of
issues and the court after being satisfied may order for summary judgement that:
a. the plantiff or defendent has no chance of succeeding in the claim or defence as the case may be
b. there are nosufficient reasons for not disposing of the claim before the recording of oral evidence.
Que: Summary judgement provides relief to the parties in cases of commercial disputes.commet?
ISSUES
When a fact is alleged by one party and denied by the other party, it will result in to issue.
Issues arise on account of:
1) Questions of fact
2) Questions of Law
The Court gathers issues from the following:
1) Written statements filed by the parties.
2) Allegations made by the parties.
3) Facts given by the party during interrogation.
4) Documents submitted by parties.
5) By examining the witness.
Important Notes:
1. In case of SB Temple vs V.B Tharyulu it was decided that the Doctrine of Res judicata underlines
the principle that no one shall be vaxed for the same cause
2. In the case of Municipal corporation vsMadanmohanit was decided that in the matter relating to
municipal taxes doctrine of res judicata will not apply as each year‘s municipal tax constitute
different subject matter
3. If the defendant is public officer or servant of railway or local authority ,the summons will be
sent to the head of the office to which he is employed
4. If summons are to be sent to the partner of the firm then it may be sent to the partner or at the
principle place where the P.S firm carries on its business
5. When the defendant takes his defense through set off , counter claim or equitable set off then
he has to also produce the supporting documents.
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The limitation period for filling summary suit is 1 year from the date on which debt becomes due and
payable
Saving of Inherent Powers of Court – Section 151 of CPC
Section 151 of the Civil Procedure Code says ‘Nothing in this Code shall be deemed to limit or otherwise affect the
inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of
the process of the Court.’
The section does not grant any specific powers to the Courts but it is one of the most used section in
CPC, 1908, as any situation that is not covered in CPC can be brought under this section. The scope of
this section is explained by Supreme Court in the case of K.K. Velusamy v. N. Palanisamy, as:
1. Section 151 CPC is not a substantive provision which create any power or jurisdiction on courts. It
just recognises the discretionary power inherent in every court as a necessary remedy for
providing justice as per law, to do what is ―right‖ and prohibit what is ―wrong‖, so as to secure
the purpose of justice.
2. As the provisions of the Code are not Complete, Section 151 recognises and assures that if the
Code does not expressly or impliedly cover any particular procedural aspect, the inherent power
can be used to deal with such situation or aspect, if the ends of justice requires it. The power
will be exercised as per need and circumstances of each case.
3. A court has no power to do that which is prohibited by law or the Code, by exercise of its
inherent powers. If the Code contains provisions which expressly restricts the court either
expressly orr impliedly to deal in particular subject or topic then the inherent powers can not be
used or invoked in such a case. So if there are specific remedies provided in the Code the court
can not use the inherent powers as given in section 151.
4. The inherent powers of the court are complementary to the powers specifically given to the
court, a court is free to exercise them for the purposes mentioned in Section 151 of the Code
when the matter is not covered by any specific provision in the Code and the exercise of those
powers would not in any way be in conflict with what has been expressly given in the Code or be
against the intention of the legislature.
5. While exercising the inherent power, the court will be very cautious, as there is no legislative
guidance to deal with the procedural situation and the exercise of power depends upon the
discretion and wisdom of the court, and in the facts and circumstances of the case. The absence
of an express provision in the Code and the recognition and saving of the inherent power of a
court, should not however be treated as a carte blanche (complete freedom) to grant any relief.
6. The power under Section 151 will have to be used with care, only where it is absolutely
7. necessary, when there is no provision in the Code relating to the matter, when the genuineness of
the applicant cannot be doubted, when such exercise is to meet the ends of justice and to
prevent abuse of process of court.
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INDIAN PENAL CODE 1860
INTRODUCTION
The Indian Penal Code (IPC) is a colonial legislation which

was retained as the main penal law of the country even
after India became independent in 1947. The Indian Penal
Code was passed in the year 1860 but it came into force on
1st January 1862, and it applies to the whole of India.
However amendments have been made in the law from
time to time.
CRIME
When a person breaks any rule or law he commits a crime
CRIME
Against society Against individual
Such crimes will be treated under Criminal Will be treated under civil laws.
laws
CRIME KAR KE AGAR KISI KO PAHUCHAI HAI CHOT
TO JAIL JAOGE AS PER INDIAN PENAL CODE
In India the base of crime and punishment laws is contained in Indian Penal Code 1860 which came into
force on Jan. 1, 1862.
Indian Penal Code applies to whole of India.
IPC contains 23 chapters and has – 511 sections.
Under IPC the Criminal courts exercise a jurisdiction.
If any person breaks any rule or law, he commits a crime. There are two types of crimes, i.e. against
individual – such crimes will be treated under civil laws and against society – such crimes will be treated
under criminal laws.
The jurisdiction of criminal courts in India can be classified in 2 categories :-
JURISDICTION BOLE TO APNE COURTS KI POWER IPC KE ANDAR
Intra Territorial Jurisdiction Extra territorial jurisdiction

When any person whether Indian or Foreigner When laws are made that applies to the terrorists
commits a crime in territory of India including outside India or when crime is done outside India by
waters of India or in any ship or aircraft which is Indian national, such crime or such person may be
registered in India. punished in India by the Indian courts.
The court will exercise intra

territorial Such crime will be punished in the same manner as
jurisdiction. if the crime has been committed in India.
OR
In the case of Mubarak Ali Ahmed V/s. State of If any person commits an offence outside India, on
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Bombay, it was decided that it will be no excuse, a ship, aircraft or vessel which is registered in
the foreigner was not aware with the laws of India.
India and hence, he did not know that a particular
act is a crime in India. In case of a ship, the ship is considered to be of the
nation whose flag the ship flies, when it is in High
Seas.
The jurisdiction of Indian court on the offences

committed on ships is also known as admirality
jurisdiction
When an offence is committed from outside India

but the target is the computer resource in India.
Que: Briefly discuss the intra-territorial and extra-territorial application of Indian Penal Code, 1860 with exceptions.
Exceptions to rule of intra territorial jurisdiction of IPC:-
President of India, Governor Foreign Sovereigns, foreign Millitary attaches, Secretaries

of State till the time then diplomats, ambassadors and Political Attaches, who
hold the office. [diplomatic protection] are on a mission on India.
Que: Discuss in brief the power of the court to try offences under Indian Penal Code and any other law as
laid down in Criminal Procedure Code, 1973.
The Fundamental Elements of Crime
Crime Involves 3 basic elements:
Human Being Mens Rea Act

Bina Insan ke gunah kaise hoga! Sirf Gunah Kafi Nai hai, Gunah Galat Neeyat to thi par Gunah
Galat Neeyat se Hona Chahiye Karne se Dar Gaye to Crime Nai
Hoga!
The basic function of criminal law is to punish the offender and to deter the incidence of crime in the
society.
A criminal act must contain the following elements:

a) Human Being :
First requirement of any crime is a human being and he should have not acted in accordance
with law and should be physically and mentally fit for committing a crime.
b) Means Rea :
The basic principal of Crime is ―actus non facitreum nxisi mens sit rea.‖ Which means an act
alone is not guilty unless it is accompanied by a guilty mind.
It is an attitude that directs the act. The act is not judged from the mind of wrong doer but the
mind of wrongdoer is judged from the act.
In the case of Girijanath V/s. State the Court decided that the principle of mensrea covers
various kinds of mental attitude.
TYPES OF MENS REA
BHAI JAB TAK NEEYAT NAI HAI KHARAB,

COURT TUM SE NAI KAR SAKTA SAWAL JAWAB
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Intention (Kharab Neeyat) Negligence (Laparwahi) Recklessness
(Gairzimmedari)
It means a decision. It means not taking care. The actor does not desire any
e.g. A peson has poisoned consequence but expects a
water which was to be served It means a state of mind possibility and consciously
to Mr. X, but Mr. Y drank and when there is no desire to takes the risk. It is the form
died, in this case Ram will be cause any particular of mensrea.
liable [generic intention] consequence.
e.g. Drink and drive.
It means a person does not
take standard case as
established by law.
Negligent conduct amounts to

mensrea.
e.g. A person throws stone

from his house and such stone
hits another person. It will
amount to negligence.
In the Indian Penal Code, the evil intent of wrong doer is indicated by words such as intentionally,
voluntarily, fraudulent maliciously, knowingly, etc.
EXCEPTIONS TO THE PRINCIPAL OF MENS REA
NEEYAT ACCHI HO YA KHARAB, TUM TO FASOGE JANAB
In the following cases there will be liability even without mensrea :
In the matters If a person violates When it is difficult to Public nuisance or in

relating to public, the law without the prove mensrea and the interest of public
health, safety, food, knowledge of law. penalties are petty safety.
drugs, motor vehicle fines.
act, arms act, etc.
CORPORATE BODIES AND MENS REA
Section – 11 of IPC defines a person which includes individual, a company, AOP, BOI, whether registered
or unregistered.
In the case of State of Maharashtra V/s. Syndicate transport, it was decided that the liability of
corporate body through an individual‘s action will depend upon the nature of offence as disclosed in the
charge sheet.
Que: Companies can no longer claim immunity from criminal liability on the ground that they are
incapable of possessing the necessary mens rea for commission of offences. Critically examine.
Hint: the definition of person includes company also!
c) Act :-
BHAI HUMAN BHI THA, MENSREA BHI THA,
PAR CRIME KARNE KI HIMMAT HI NAI HUI, NO CRIME
Only human beings and intention are not sufficient, there should be an act or omission also. The act or
omission must be such, which law prohibits it is a result of voluntary conduct.
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A person is also liable to be punished when he has not taken any part in the offence.
e.g. The party who insights the other party to commit an offence will also be liable.
STAGES OF CRIME
There are 4 stages in crime.
Statge 1, Criminal Intention
Stage 2, Preparation
Stage 3, Attempt
Stage 4, Commission of Crime
Sabse Pahle Neeyat Kharab, fir taiyari, fir kosis, aur fir kamyabi, In char stages se hokar har crime
guzarta hai!
1) Criminal Intention :
It is Conscious exercise of Law does not punish only an Intention must also result in
faculties of mind of a person intention as it is difficult to voluntary act for some
to do an act for a specific prove the intention for the specific purpose.
purpose. prosecution.
2) Preparation :
It means to arrange necessary resources for doing any criminal act. Generally preparation is not
punishable, as it is difficult to prove that preparation results into an offence.
However in the below mentioned cases mere preparation is punishable :-
Preparation of war Preparing to commit Preparation for Possessing false

against government. criminal decoity. counter feiting coins weights and measures
and stamps or forged documents.
3) Attempt :
It is considered as preliminary crime. The IPC does not define attempt but provides punishment for
attempting to commit a crime Attempt is a step after preparation.
A person first forms an intention, then makes a preparation and then makes an attempt, if he succeeds
in attempts, then he will be punished for crime and if he does not succeed in attempt, then he will be
punished for attempt.
The act constituting attempt must have direct connection with the intended result.
Attempt can be divided in four categories.
When the attempt and Attempt for the offence and

Attempt to Attempts u/s. 511 for which
offence both are the offence are dealt side by
commit no specific punishment is
covered in one section side & separate punishments
suicide - provided. As per the section
and punishment for have been provided for Punishable up whoever attempts to commit
both is same. attempts and offence to 1 year of an offence punishable with
simple life imprisonment or with
e.g. Assaulting e.g. Attempt to commit an imprisonment. imprisonment and if no
President or Governor offence punishable with specific penalty is provided
death or life imprisonment. then, such person may be
Waging war against punished,
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Govt.
For half of the Half of the longest

imprisonment of life term provided for the
imprisonment. offence, or with both
4) Commission of Crime or Accomplishment :
If the accused is successful in his crime, then he will be punished for crime. If the attempt in
unsuccessful then he will be guilty for attempt only.
PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF
Accused is always innocent before law, unless proved otherwise. Prosecution must prove the offence
beyond reasonable doubts. If the accused is able to bring any doubt in case of or in the allegations of
prosecution then he will not be held as guilty.
KINDS OF PUNISHMENTS UNDER IPC
IPC contains following 5 kinds of punishments :-
Death (Capital Life Fine Imprisonment Forefeiture

Punishment) imprisonm of property.
This is harshest punishment ent It means
Forfeiture of Rigouro Simple As a result
It is a judicial killing It means a money by way of us Imprisonm of any
rigorous penalty ent – it default the
As per the direction of imprisonm Impriso means an property of
supreme court, death ent till the If the court has nment imprisonm convict may
sentence, should be given last breath imposed a fine on with ent which be
in rarest of rare cases. of the any person and if hard is not the forefeitted
convict. such person does labour rigrous by the
In the following cases not pay fine then imprisonm court.
death sentence may be the court may ask ent.
awarded : such person to
1) Murder suffer an
2) Abetment of suicide imprisonment as a
by minor or lunatic result of default
person in payment of
3) Decoity and murder fine.
4) Attempted murder
by life convict.
5) Fabricating false
evidence upon
which innocent
person suffers
death
6) Abetting mutiny
actually committed.
Whenever the court awards

death sentence, it has to
gives reasons.
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CRIMINAL CONSPIRACY – SECTION 120A, 120B
JAB DO YA DO SE JYADA LOG MILKAR,
AAPRADHIK SHADYANTRA RACHTE HAI,
YEHI CRIMINAL CONSPIRACY HAI
When two or more persons agree to do or cause to be done :-
An illegal act [OR] An act which is not illegal but through illegal
means.
Such an agreement between two or more person amounts to criminal conspiracy.
In the case of R Venkata Krishna V/s. CBI, the Supreme Court decided, essential elements of criminal
conspiracy are :
Agreement between two or more The agreement must relate to :

persons [+]
Doing an illegal act A legal act through illegal
OR means
As per Halsbery’s laws of England, conspiracy crises when two parties combine by an agreement,
agreement may be express, implied, party express and partly implied.
In order to establish criminal conspiracy, there must be a direct or circumstancial evidence to show,
there was an agreement to commit offence.
In case of R. Venkata Krishna Vs CBI, the Supreme Court decided, essential elements of criminal
conspiracy are, agreement between two or more persons and the agreement must relate to illegal act or
the legal act through illegal means.
In the case of National Capital Territory of Delhi Vs Navjot sandhu, the accused had never contacted
the deceased terrorist on the place but had helped one of the terrorists to flee to a safer place after the
incident, the accused was not held guilty for criminal conspiracy.
 Section 120B :- Punishment for Criminal Conspiracy :
If the criminal conspiracy was done to commit In any other offence imprisonment upto 6 months.
offences punishable with death life
imprisonment or imprisonment for 2 years or More severe punishment will be given, if the
more. agreement is to commit a serious offence, which is
less severe otherwise.
Punishment will be given in the same manner as
he has abetted [encouraged] the offence.
 Criminal Misappropriation of Property :
Dishonest misappropriation of the property – Section 403 Section 404 – Dishonest

Misappropriation of
property possessed by
deceased person at the
time of his death.
When a person dishonestly misappropriates or converts for his own use, If a person misappropriates
the properly belonging to other person. or converts the property for
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his own use knowing that the
The essential elements of section 403 are: property was in possession of
Accused must act dishonestly + He Must misappropriate the Property. deceased person @ the time
of his death and the
When a person intends to make a wrongful gain for himself and cause property is not returned to
wrongful loss to other person, he acts dishonestly. the person who is legally
entitled to such property.
Punishment
2 years imprisonment or fine or both Example: Mr. V died and the
gold jewelry that was in his
e.g. if a person takes watch of other person believing that such other possession during his death
person has no problem. was kept by his servant and
If X goes in the library of Y in absence of Y and takes a book from was not returned to the son
library believing implied consent of Y for the purpose of reading the of deceased person or the
book, it is not theft but if X later on sells the book without the other person legally entitled
knowledge and consent of Y, for his own benefit, then it‘s a crime for such hold jewelry –
under section 403. servant is guilty under
If one of the joint owners of property sells the property without the section 404.
consent of the other joint owner and keeps the entire amount of sale
with himself, it results in crime under this section. Punishment
3 years imprisonment + fine

When a person discloses that certain property does not belong to him and if the person was clerk
but still keeps the property - Guilty. or servant of deceased then
the punishment is upto 7
A person finds a bank note, from the note it appears that the note years imprisonment + fine.
belongs to some other party but such person still keeps the note –
guilty
When a person finds a purse and he keeps the purse with the intention
of returning the purse to the owner but, starts using the purse – guilty.
Even for a single time if dishonest misappropriation is done it amounts
to misappropriation under this section.
A person finds promissory not belonging to Mr k, such person pledges
the bank note and obtains a loan for his own benefit and he intends to
restore the promissory note to Mr K in future, it‘s a crime under this
section.
A person who finds stolen property and keeps it with himself for
protecting it or for restoring it to the owner and does not
misappropriate the property dishonestly, it is not a crime under this
section, but if such person, has the means of discovering the owner but
still does not discover the owner neither gives a notice to the owner
and also starts using the property + he waits for owner to claim the
property in this case he will be guilty under this section.
In the case of Muhammad Ali Vs State, electric wires were seized from
the house of the accused, the electric department of the state did not
claim the wires as stolen property. The accused had purchased the
wires from the scrap dealer and did not have the receipt, the court
decided that, the accused did not act dishonestly.
In the case of U Dhar Vs State of Jharkhand, it was decided by
Supreme Court, that if the contractor receives the payment but does
not make payment to the sub contractor, then it will not be a
misappropriation as the money that comes to contractor is his own
money and not the money of sub contractor, and this case should be
treated as a civil case and not a criminal case.
Que: There is a contract between A and contractor B. There is another contract between B and sub-contractor C to
execute same work. On completion of work C demanded money from B. On non-payment C filed a criminal
complaint against B alleging that B having received the money from A had misappropriated the money. Discuss with
reasons the matter of the case and offence committed by B, if any.
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CRIMINAL BREACH OF TRUST : SECTION 405
A person who was entrusted with a property dishonestly mis appropriates the property or converts the
property for his own use or disposes of the property in violation of any law and breaches the trust.
Punishment.
A person who deducts the provident fund contribution as per the provisions of provident fund and
miscellaneous provisions Act, but does not deposit the same with the government - Liable under section
405  7 years jail.
A person who deducts insurance contribution from the wages of the employees under ESIC Act, but does
not deposit it with ESIC  liable u/s.  405.
ESSENTIAL ELEMENTS OF CRIMINAL BREACH OF TRUST

a) Accused must be entrusted with a property and he must have control over it.
b) He uses the property
c) He violates the law.
d) He breaches the trust:
1) By not following the manner given in law regirding the manner in which trust should be
fulfilled or discharged, or
2) By not following the contract under which the manner of discharging trust is given.
Criminal Breach  This provision, section 405, applies to both moveable and immoveable property.
In the case of VR Dalal Vs Yugendra Naraji Thakkar, it was decided that, in the case of criminal breach
of trust, entrusting or giving the property is important, if it is missing the case will not be considered as
criminal breach of trust. Breach of trust is a civil wrong but if it involves mens rea, then it becomes a
criminal case.
In the case of Pratibha Rani Vs, Sooraj Kumar, the in-laws, of the aggrieved refused to return the
―Stree Dhan‖, when the aggrieved was separated from her husband, the Court decided that the refusal
to return the Stree Dhan is a criminal breach of trust.
In the case of Onkar Nath Mishra Vs State of Delhi, it was decided that, in criminal breach of trust, 2
parts are involved, the first is having an obligation related to control of the property which is acquired
by the accused and second is dealing dishonestly with the property against the obligations on the
property.
In the case of SK Alagh Vs State of UP and others, it was decided that if the demand drafts were issued
in the name of the Company and company neither supplied the goods nor returned the money then the
managing director of the company can not be held vicariously liable under this section, if nothing is
mentioned in the law regarding creation of liability on the managing director.
Que: A‘ is a warehouse-keeper. ‗Z‘ going on a journey, entrusts his furniture to A, under a contract that
it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods.
Discuss, when offence, if any, committed by A ?
If any case has to be punished as per section 405, then following elements are to be present:
1. The person who gives property must have confidence or trust in the
person taking the property and a fiduciary relation has to be created.
2. The Accused must be in the position to control the property.
3. Property includes movable and immovable property.
4. It must be proved that accused dishonestly used the property or made
unauthorized use. Dishonest intention is essential fact which has to be
proved to bring an offence under this section.
As per section 406, the criminal breach of trust is punishable with 3 years of imprisonment or fine or
both.
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As per section 407, If a person is a carrier warehouse keeper, godown owner or incharge of warehouse
and dishonestly misappropriates the property.
OR
As per section 408, if the clerk or servant, dishonestly misappropriates the property.
Punishment upto 7 years jail + fine.
As per section 409, if criminal breach of trust is done by public servants, attornies, banker, agent,
merchants, banks, advocates, brokers.
The punishment is life imprisonment or 10 years imprisonment + fine.
The punishment is more harsh for the persons who enjoy a special status. The law wants to punish the
persons more strictly who are into fiduciary relationship, than the strangers. The persons who stand in a
fiduciary relationship have more responsibility for the honesty. (Vishwas todna kafi galat mana gaya hai)
In the case of Bagga Singh Vs State of Punjab, the accused was the taxation clerk with the municipal
corporation. He collected tax and deposited the tax after a period of 5 months and in the court he stated
that the money was given to the cashier and the cashier did not deposit the money with the municipal
authority, the cashier was the co-accused in the case and he proved that no money was given to him by
the accused, the Court decided that the accused was guilty under section 409.
In the Case of Bacchu Singh Vs State of Haryana, The Gram Sachiv collected Rs 648 from the villagers in
account of house tax and also issued receipts for the same but did not deposit the amount in the
Government treasury, it was decided by the Supreme Court on an appeal that its an offence under
section 409 of IPC.
In the case of Girish Saini Vs State of Rajasthan, a public servant made personal use of stationary as no
record of such stationary was found in the register which was maintained, he was the incharge of
Government store, he stated that he had maintained a register for the stationary, and all the record of
stationary was in the register but he could not prove the same, so it was decided that he committed
criminal breach of trust.
SECTION 415 – 420  CHEATING
Section 415 : If a person deceives any person or convinces any person to deliver any property or omit to
do any act and such other person would have not delivered the property or would have not omitted to do
any act if such deceit had not been done.
Main ingredients of Cheating
1. Deception by a person.
2. Fraudulently or dishonestly convincing a person to, deliver a property or for retaining of the
property by some other person or intentionally convincing a person to do or not to do an act
which that person would have not done if he had not been so convinced and due to such act or
omission that person suffers a damage or harm in body, mind, property or reputation.
e.g. 1) A person takes away gold of any other person by stating that he will clean the gold and return but
he does not return.
e.g 2) Ram asks Shyam not to lock the door of house at the night as God will come at the night, Shyam
believes Ram and does not lock the door, Ram takes away all the jewelary of Shyam on the same night.
2) Goods delivered do no match with sample.
3) By pledging false diamond if I obtain a credit from you when I know that diamonds are fake.
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In the case of M.N Ojha Vs Alok Kumar Shrivastava, if the intention of the accused was to keep the
excise duty, which the state is liable to recover, the accused was held as guilty of cheating by the Court.
In the case of T.R Arya Vs State of Punjab, it was decided that the negligence without dishonest
intention is not cheating.
SECTION 416 – CHEATING BY PERSONATION :
(behroopiya banker chapat laga dena)
MAIN APNI IDENTITY KUCH AUR HI BATAU,
AUR KISI KO CHUNA LAGAU, YAHI HAI PERSONATION
If a person represents that he is some other person and conceals his own identity and convinces other
person to enter into a contract or for any particular act.
Such other person who is represented may be real or fictitious.
Example: A person sells Taj Mahal by stating that he is the owner of Taj Mahal.
Anant cheats Bimal by stating that he is the Income Tax Officer.
GENERAL PUNISHMENT FOR CHEATING UNDER SECTION - 417 – 1 YEAR IMPRISONMENT OR FINE OR
BOTH.
Section 418 – A person who knows that he is causing a wrongful loss to a person in a contract or in
accordance with law whose interest such person was under an obligation to protect.
e.g. :A certified guardian appointed by the Court for minor or lunatic person sells the property of minor
or lunatic person for his own benefit.
punishment under section 419, 3 years jail or fine or both.
SECTION 420 – CHEATING, DISHONESTLY INDUCING A PERSON TO DELIVER HIS PROPERTY:
Whoever dishonestly induces a person to deliver any property or money to other person or to make
alteration or destruction of any valuable security or anything which is signed, shall be punished for
imprisonment upto a period of 7 years and also fine.
Simple cheating is covered u/s. 417 – Section 420 applies when there is delivery or destruction of any
property or security resulting from deceiving.
In the case of KuriaChan Chacko V/s. State of Kerala, it was decided that money circulation scheme
which was launched without an intention of repaying the funds, will be covered u/s. 420 of IPC.
In the case of Mohammad Ibrahim Vs State of Bihar, it was decided, if false sale deed is made to the
transfer the property belonging to some other person, it will be covered under section 420.
In the case of Shruti Singh Vs State of Bihar, it was decided that only breach of contract does not create
a criminal offence, however if breach of contract is made with fraudulent or dishonest intention and it
should have been present at the beginning of the transaction. However if it is proved that the dishonest
intention was in the beginning but later on intention was not dishonest so in this case the criminal
liability will not arise.
Que: ‘A’ under a bonafide belief that certain property belongs to him and purchaser also under the same belief
purchased the property from A. Subsequently real owner ‘C’ filed a complaint of cheating against ‘A’ for having
executed a false sale deed. Whether A is liable for punishment under Indian Penal Code, 1860 ? Discuss.
FRADULENT DEEDS AND DISPOSITIONS OF PROPERTY :- SECTION 421 – 424
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SECTION 421 – DISHONEST OR FRADULENT REMOVAL OR CONCEALMENT OF PROPERTY TO PREVENT
FROM CREDITORS :
If a person dishonestly or fraudulently removes or conceals or transfers any property without

consideration so that his creditors does not get any right in the property.
This act is punishable with imprisonment which may extend to 2 years or with fine or both.
In the case of Ramautar Chakhney Vs Hari Ram Jodi, a person transferred his property for inadequate
consideration, so that his creditors do not get any right in the property, such person was punished under
section 421.
In this case the Court decided that offence under section 421 has following ingredients:
a. The accused removed or concealed or transferred the property.

b. The transfer was without adequate consideration.
c. The accused had the intention of preventing the creditors from using the property or preventing
the creditors of some other person from using the property.
d. The accused acted dishonestly and fraudulently.
SECTION 422 : DISHONESTLY OR FRAUDULENTLY PREVENTING A DEBT AVAILABLE FOR CREDITORS.
If a person dishonestly prevents the payment of any debt or demand which is due to himself, is
punishable with imprisonment which may extend to 2 years or fine or both.
The word debt has not been defined in IPC, so in the case of Commissioner of Wealth Tax Vs G.D Naidu,
it was decided that there are three essential elements of wealth, a) Ascertained amount or capable of
being ascertained b) An absolute Liability, present or future c) Obligation already accrued or existing.
Example: When a person wilfully remains absent from the place where he resides in order to prevent his
creditors from demanding the debt.
SECTION 423 :- DISHONEST OR FRAUDULENT EXECUTION OF DEED OF TRANSFER CONTAINING FALSE

STATEMENT OF CONSIDERATION.
Whenever any person creates any charge on the property through a charge deed which contains false
statements.
Punishable with imprisonment which may extend to 2 years or with fine or both.
SECTION 424 – DISHONEST OR FRAUDULENT REMOVAL OR CONCEALMENT OF PROPERTY :
A person who dishonestly removes or conceals any property of himself or dishonestly releases claim of
any person.
e.g. A person uses some other person‘s property and transfers it to his creditor to satisfy the claim of
the creditor.
Punishable with imprisonment which may extend to 2 years or with fine or both.
The essential ingredient to bring an offence under this section are:
There is a Property + The Accused Removed or concealed the property or helped in removing or
concealing the property + Removal or Concealing was done with dishonest intention
Or
There was a demand due on accused + Accused released or discharged the demand + he dish charged the
demand dishonestly.
Que: 'A' under a bonafide belief that certain property belongs to him and purchaser also under the same
belief purchased the property from A. Subsequently real owner "C" filed a complaint of cheating against
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'A' for having executed a false sale deed, Whether A is liable for punishment under Indian Penal Code,
1860 ? Discuss.
FORGERY AND ITS PUNISHMENT – SECTION 465
It includes
False Documents [OR] False Electronic record
With an intention of :
Causing damage To commit Injury to public Injury to Person To convince any

OR fraud. OR OR person to
OR transfer his
property.
All the above acts amount to forgery.
Punishment :- With imprisonment which may extended to 2 years or with fine or both.
The Supreme Court in the case of Ramchandran v. State, decided that to make an offence of forgery,
document must be made with dishonest or fraudulent intention.
A person is said to do a thing fraudulently if he does that thing with intent to defraud and not in any
other manner.
The Supreme Court in Parminder Kaur v. State of UP, has decided that only alteration of document does
not make it a forged document. Alteration must be made for some gain or for some objective.
Similarly, in Balbir Kaur v. State of Punjab, the allegation against the accused was that she furnished a
certificate to get employment as ETT teacher which was found to be bogus and forged as school did not
have recognition for period given in certificate. However the certificate did not anywhere say that school
was recognized. It was decided that by only indicating teaching experience of the accused, it cannot be
said that it indicates wrong facts. So the direction which was issued for prosecution is liable to be
quashed.
DEFAMATION
Whoever by words spoken or intended to be read or by signs or by visual representation makes or

publishes any thing with the intention to harm the reputation or to defame any person.
It may also be against the deceased person if it affects his family and relatives.
It may also be against company or any AOP.
It should lower the moral character of a person.
e.g. If A states that B cannot steal the pen as he is very honest – B can sue A for defamation.
The following cases are not covered under the scope of defamation :-
1) Importation of truth which is in public interest – speaking truth about any person is not
defamation.
2) Public conduct of public servants – if in good faith public servant discharges his duties, its not
defamation for example NCB arrests Aryan Khan, in discharge of its duties its not defamation.
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3) Conduct of any person touching any public question – Giving opinion on a public question
regarding the conduct of any person is not defamation, so if I express my opinion on Aryan
Khan regarding his drugs case in good faith its not defamation.
4) Publication of report of proceedings in the court – the publishing of judgements of the Court is
not defamation, so if any law journal publishes a case in which Mr X was lost, its not
defamation.
5) Merits of the case decided in the court – having a discussion on the grounds on basis of which
the Court passed a decision is not defamation.
6) Censure passed good faith – Censure means criticizing someone for wrong acts, so if we
criticize some person for his wrong acts in good faith, it is not demfamtion.
7) Merits of Public Performance – if opinion is given on public performance in good faith its not
defamation.
Example: A says that Z‘s book is foolish, Z must be a weak men, Z‘s book is indecent, Z must
be man of impure mind, if A says all these things in good faith in respect of Z‘s character in
relation to the book, this will not amount to defamation but if A says I am not surprised that
Z‘s book is foolish and indecent as he is a weak men with impure mind, now this is defamation
as this opinion is about Z and not the character of Z mentioned in the book.
8) Accusation preferred in good faith to authorized person – to make accuse or allege someone
for wrong deed is not defamation, for example I lost my laptop and I doubt that Ramesh has
stolen my laptop so I publicly say in good faith that Ramesh has stolen my laptop in my
opinion, so its not defamation.
9) Imputation made in good faith by person for protection of his interest or other‘s interest –
Imputation means to accuse someone for wrong acts. So in good faith I say that don‘t give
admission to Ram, unless he clears his remaining fees, is not defamation.
PUNISHMENT FOR DEFAMATION
2 years imprisonment or fine or both.
There are two types of defamation :
Libel Slander
This kind of defamation is in permanent or It is a defamation through spoken or audible

visible form. It may be through written words, which is in transitory form.
words, or printed words, or pictures, video. [temporary]. It also includes gestures.
 PRINTING OR ENGRAVING A MATTER KNOWN TO BE DEFAMATORY :
Whoever prints or engraves any matter, knowing that such printing or engraving may be defamatory or
cause defamation to some person. Such person shall be punished with 2 years imprisonment or fine or
with both.
In the case of Shankaran V/s. RamkrishnaPillai, it was decided that if defamatory matter was published
in Malyalam which the accused did not know, there is no mensrea and hence there will be no case of
defamation.
 Sale of printed or engraved substance containing defamatory matters :

If any person :
a) Publishes defamatory matter.
b) Which is printed or engraved.
c) Knew that the matter is defamatory.
d) The accused sold or offered for sale such defamatory matter.
The offence may be punished with simple imprisonment of 2 years or fine or both.
 General exceptions to IPC :
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The Indian Penal Code, 1860 (IPC) provides for general exceptions for a person accused of committing
any offence under the Code to plead in his defense.
General defences or exceptions are contained in sections 76 to 106 of the IPC. In general exceptions to
criminal liability there will be absence of mens rea (guilty mind) on the part of the wrong-doer.
If there is any general defense of the accused in a criminal case, the burden of proving lies on him under
section 105 of the Indian Evidence Act, 1872. The exceptions are:
1. Mistake of Fact bound by law
2. Act of Judge when acting judicially
3. Act done pursuant to the judgment or order of Court
4. Mistake of Fact-justified by law
5. Accident in doing a lawful act
6. Act likely to cause harm, but done without criminal intent, and to prevent other harm
7. Act of a child under seven years of age
8. Act of a child above seven and under twelve of immature understanding
9. Act of a person of unsound mind
10. Act of a person incapable of judgment by reason of intoxication caused against his will
11. Offence requiring a particular intent or knowledge committed by one who is intoxicated
12. Act not intended and not known to be likely to cause death or grievous hurt, done by consent
13. Act not intended to cause death, done by consent in good faith for person's benefit – Doctor doing
any risky operation in good faith with the consent of patient and the patient dies.
14. On consent of guardian if any act is done in good faith to it
15. Consent
16. Exclusion of acts which are offences independently of harm caused
17. Act done in good faith for benefit of a person without consent
18. Communication made in good faith
19. Act to which a person is compelled by threats
20. Act causing slight harm.
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Ques: What are the fundamental principals of crime ?
A criminal act in order to be punished must contain :-
a) Human Being :
First requirement of any crime is a human being and he should have not acted in accordance with law
and should be physically and mentally sit for committing a crime.
b) Means Rea :
The basic principal of Crime is ―actus non facitreum nisi mens sit rea.‖ Which means an act alone is
not guilty unless it is accompanied by a guilty mind.
It is an attitude that directs the mind. The act is not judged from the mind of wrong doer but the
mind of wrongdoer is judged from the act.
In the case of Girijanath V/s. State the Court decided that the principle of mens rea covers various
kinds of mental attitude.
Ques: What are essential elements of criminal breach of trust ?

Answer: The following are the essential elements of criminal breach of trust
a) Accused must be entrusted with a property.
b) He uses the property
c) He violates the law.
d) He breaches the trust.
Criminal Breach  This provision applies to both moveable and immoveable property.
If a person is a carrier warehouse, keeper, godown, owner or incharge and dishonestly misappropriates
the property.
OR
Clerk or servant, dishonestly misappropriates the property.
Punishment  upto 7 years jail _ fine.
If criminal breach of trust is done by public servants, attornies, banker, agent, merchants, brokers.
The punishment is life imprisonment or 10 years imprisonment + fine.
The punishment is more harsh for the persons who enjoy a special status. The law wants to punish the
persons more strictly who are into fiduciary relationship, than the strangers.
Ques: What is the punishment prescribed for Defamation ?

Answer:
For defamation following punishment is prescribed:
2 years imprisonment or fine or both.
There are two types of defamation :
Libel Slander
This kind of defamation is in permanent or It is a defamation through spoken or audible

visible form. It may be through written words, which is in transitory form.
words, or printed words, or pictures, video. [temporary]. It also includes gestures.
Ques: What are the different types of Mensrea?

Answer:
Mens rea means a guilty mind, it is an attitude that directs the mind. The act is not judged from the
mind of wrong doer but the mind of wrongdoer is judged from the act.
In the case of Girijanath V/s. State the Court decided that the principle of mensrea covers various kinds
of mental attitude.
Types of Mens Rea
Intension Negligence Recklessness
It means a decision. It means not taking care. The actor does not desire
e.g. A peson has poisoned any consequence but expects
water which was to be It means a state of mind a possibility and consciously
served to Mr. X, but Mr. Y when there is no desire to takes the risk. It is the form
drank and died, in this case cause any particular of mensrea.
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Ram will be liable [generic consequence.
intention] e.g. Drink and drive.
It means a person does not
take standard case as
established by law.
Negligent conduct amounts

to mensrea.
e.g. A person throws stone

from his house and such
stone hits another person. It
will amount to negligence.
In the Indian Penal Code, the evil intent of wrong doer is indicated by words such as intentionally,
voluntarily, fraudulent maliciously, knowingly, etc.
Ques: What is criminal conspiracy?

Answer:
When two or more persons agree to do or cause to be done :-
An illegal act [OR] An act which is not illegal but through illegal
means.

conspiracy are :
Agreement between two or more The agreement must relate to :
persons [+]
Doing an illegal act A legal act through illegal
OR means
As per Halsbery‘s laws of England, conspiracy crises when two parties combine by an agreement,
In the case of National Capital Territory of Delhi V/s. NavjyotSandhu.
In this case the accused had never contacted the deceased terrorist on the place but had helped, one of
the terrorist to glee to a safer place, after the incident, the accused was not held guilty of criminal
conspiracy.
Ques: What are the provisions on cheating in Indian Penal Code?

Answer:
As per section 415 : If a person deceives any person or convinces any person to deliver any property or
omit to do any act and such other person would have not delivered the property or would have not
omitted to do any act if such deceit had not been done.
e.g. 1) A person takes away gold of any other person by stating that he will clean the gold and return but
he does not return.
SECTION 416 – CHEATING BY PERSONATION :

If a person represents that he is some other person and conceals his own identity and convinces other
person to enter into a contract or for any particular act.
Such other person who is represented may be real or ficticious.
PUNISHMENT  417 – 3 YEARS IMPRISONMENT OR FINE OR BOTH.
SECTION 417 – GENERAL PUNISHMENT FOR CHEATING :

1 year jail or fine or both.
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Section 418 – A person who knows that he is causing a wrongful loss to a person in a contract or in
accordance with law whose interest such person was under an obligation to protect.
SECTION 420 – CHEATING, DISHONESTLY INDUCING A PERSON TO DELIVER HIS PROPERTY:

Whenever dishonestly induces a person to deliver any property or money to other person or to make
alteration or destruction of any valuable security which is signed, shall be punished for imprisonment
upto a period of 7 years and also fine.
Simple cheating is covered u/s. 417 – Section 420 applies when there is delivery or destruction of any
property or security resulting from deceiving.
In the case of Karia Chan Chacko V/s. State of Kerala, it was decided that money circulation scheme
which was launched without an intention of repaying the funds, will be covered u/s. 420 of IPC.
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CHAPTER: 10
CRIMINAL PROCEDURE CODE, 1973
The Code of Criminal Procedure (Cr.P.C.) is basically an

Adjective law (Law regulating the procedures) It aims at
providing machinery for fixing guilt and imposing
punishment.
When the criminal acts are done, the aggrieved party may follow the procedure given in CRPC to get
justice.
A Company Secretary should have knowledge of Cr.P.C. to avoid the criminal liability imposed by different
corporate and industrial laws.
DEFINITIONS
 MENS REA
AGAR OFFENCE KARTE VAQT THI GUILT INTENTION,
TO TUM FAS JAOGE MERE BHAI
Mens Rea means guilty intention. According to the
principle of Mens Rea, no one shall be punished according
to the law, until he has a guilt intention. Intention
involves knowledge of probable outcome.
The fundamental principle of penal liability is embodied in

the maxim actus
non facit ream nisi mens sit rea. The act itself does not
constitute guilt unless done with a guilty intent. Thus,
unless an act is done with a guilty intention, it will not be
criminally punishable.
The motive is not an intention. Intention involves foresight or knowledge of the probable or likely
consequences of an injury. In short, mens rea is the state of mind which accompanies and directs the
conduct resulting in the actus reus.
Offence
Section 2(n) of the Cr.P.C. defines the word "offence" to mean any act or omission made punishable
by any law for the time being in force and includes any act in respect of which a complaint may be
made under
Section 20 of the Cattle-trespass Act, 1871.
However, the term is more elaborately defined in Section 40 of the I.P.C. which states that "offence"
denotes a thing made punishable by the Code.
An offence is what the legislature classes as punishable. Mens Rea a bad intention or guilt is an
essential ingredient in every offence.
 BAILABLE & NON-BAILABLE OFFENCE

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The offence for which Bail can be granted is
known as Bailable offence. These offences are
included in First Schedule of Code of Criminal
Procedure, 1973.
The offences in which Bail is not granted are
known as non-bailable offences.
The working of the bail system in India was

highlighted in the case of HussainaraKhaton vs
Home Secretary, 1980.
It came to the courts attention for the first time

that thousands of people were rotting in jails for
3 to 10 years for petty crimes which do not have
punishment more than 6 months to a year.
This was because they were unable to pay bond money for bail and the courts were too backlogged to
hear their cases.
In this respect, J Bhagwati observed that the courts must abandon the antiquated concept under
which pre trial release is ordered only against bail with sureties. Thus, in general, the intention of
the justice system is to give bail and not jail before the accused is convicted. It is said that since the
accused is presumed innocence, he must be released so that he can fight for his defense. Thus,
releasing a person on bail is a rule, while denying bail is an exception.
Provisions for Bail can be categorized by the type of offence committed i.e. bailable offence or non-
bailable offence.
 COGNIZABLE & NON-COGNIZABLE OFFENCES

Cognizable offence means offence in
which a police officer can make an arrest
without warrant. They are generally non-
bailable.
Non-Cognizable offences are those in

which police officer cannot make an
arrest without warrant.
Difference between Cognizable and Non

Cognizable Offece
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, rape, These crimes are not so serious like forgery,
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.
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The police officer is bound to register the FIR The police officer is not bound to register the
even without the permission of Magistrate. FIR or cannot register the FIR without prior
permission of the magistrate.
It is a non-bailable offence. It is a bailable offence.
QUE:Distinguish between cognizable and non-cognizable offence under the Criminal Procedure Code,
1973.
 COMPLAINT
A written or oral allegation made by a party to the
magistrate with a view that magistrate will take an
action under the Code of Criminal Procedure.
Complaint can be made whenever any offence has
taken place. It can be made against known or
unknown person.
Complaint does not include a police Report. When a

police officer makes an investigation in relation to a
non-cognizable offence & submits a Report to
Magistrate, the magistrate may treat the report given
by the police officer & a police officer will be treated
as complainant.
It is a general rule that the complaint can be made by

any party in criminal cases except for offences related
to marriages, Defamation etc. There is no specific
format of Complaint.
 BAIL
1) Bail means release of an accused from the custody of police and handing him to the custody of
private person who gives a guarantee to produce the accused whenever the accused is called by
the court.
2) The private person also gives certain money, property documents for the performance of
guarantee.
Types of bail
Regular Bail Interim Bail Anticipatory Bail
A bail granted after the A bail given during pendency of A bail given when a person has
offence is committed. application. apprehension that he may be arrested on an
accusation of having committed a non-
bailable offence.
 ANTICIPATORY BAIL
ARREST HONE SE DAR LAG RAHA HAI,
ANTICIPATORY BAIL LE LO BAS
1) When a person anticipates that he will be arrested for committing a non-bailable offence & till
now he has not been arrested. He can make an application to the court for grant of an
anticipatory bail.
2) An opportunity of being heard must be given to the aggrieved party before granting an
anticipatory bail.
3) Anticipatory bail can be granted by high courts or court of session.
INVESTIGATION, INQUIRY & TRIAL
INVESTIGATION
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It is the process of collecting
evidences. Investigation is done by a
police officer on his own or under
the orders of the magistrate. After
completion of investigation, the
police officer forwards a report to the
magistrate. Investigation is not done
by a magistrate.
When Magistrates receives the report, he will have 2 opinions:
 Offence has been committed.
 Offence has not been committed.
If offence is not committed, the case will be rejected by Magistrate.
If offence has been committed magistrate will order for an enquiry or trial. In this case the magistrate may
deal with the case himself or in case of serious offences the magistrate may forward the case to the
sessions court which has wider power to punish the convict.
CBI or police may conduct investigations.
INQUIRY
 After completion of investigation the second stage begins i.e. inquiry. It is the proceeding in which
authencity of the case is reccognised. Normally till the time the magistrate does not frame the
charges under section 211 of CRPC, the entire proceeding is inquiry and after fixing of charges trial begins.
 In inquiry, Court or magistrate make the enquiry, the purpose of making inquiry is to collect strong
evidences related to the case. object of an inquiry is to determine the truth or falsity of certain facts
with a view to taking further action. Inquiry is different from trial and its wider then trial and it stops
when trial begins.
 For example in 2G scam the court had ordered for an enquiry.
 TRIAL
 After completion of enquiry, Trial begins. In the trial conviction or acquittal of accused takes place.
 So inquiry is wider then trial as till the time of framing of charges the proceedings of the case is based on
inquiry and in trial just orders are passed by the Court.
Difference Between Investigation, Enquiry and Trial
Investigation, inquiry and trial are three different stages of a criminal case. The case is first
investigated by the police to ascertain whether an offence has actually been committed and if so,
by whom and the natureof evidence available for the prosecution.
Inquiry is the second stage which is conducted by a Magistrate for the purpose of committing
the accused to sessions or discharging him when no case has been made out. In case of
complaints made to a Magistrate, it refers to a preliminary inquiry made by him under Section
202 to ascertain the truth or falsehood of the complaint or whether there is any matter which
calls for investigation by a criminal court.
The final stage of the case comes when the accused is put on trial before the Sessions Judge
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or the Magistrate when he is empowered bylaw to try the cases himself.
JUDICIAL PROCEEDINGS
1) A process in which all the evidences are examined is known as judicial proceedings.
2) In judicial proceeding, evidence are examined on the basis of oath.
3) Judicial proceedings include trial & enquiry, but not investigation.
PLEADER
Pleader means any person who is authorized by law to practice in a court and also includes a person who
is allowed to appear in a court with the permission of the court e.g. : Advocate.
It is an inclusive definition and a non-legal person appointed with the permission of the Court will also be
included.
PUBLIC PROSECUTOR – Section 24

Public Prosecutor is a person who fights the case on behalf of
the government & his duty is to bring to the Notice of the Court,
true and fair facts related to the case. In case a person has been
in practice as advocate for at least 7 years then only he can be
appointed as public prosecutor. The public prosecutor conducts
prosecution, files appeals or conducts other proceedings on
behalf of Central or State Government.
SUMMONS CASE
1) This is the case in which police officer cannot make any
arrest without a warrant.
2) Any offence which is punishable for a term less than or equal to 2 years is a summon case.
WARRANT CASE
"Summons case" means a case relating to an offence and not being a warrant case. A "Warrant case"
means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a
term exceeding 2 years.
POWERS OF COURT TO PASS SENTENCES: SECTION 29

Section 29 of Criminal Procedure Code, deals with the power of the Courts(magistrates), one of such
powers is to pass sentences in respect of the offences.
The offences are categorised in 2 categories i.e. under the provisions of IPC, 1860 and under other laws
(for example companies act, 2013 alos has provisions relating to offences)
Section 26 of CRPC, 1973 states that the offences under IPC, 1860 may be tried by the High Court,
Sessions Court, or any other Court which is authorised under schedule I to try such offences.
If the offences under any other law is committed, such offence can be tried by the Court specified in
that law or in case no court is specified in that law, then by the Hign Court or the Court which is
authorised under schedule I to try such offences.
1. High Court : Section 28

High court can pass any sentence authorized by law including life imprisonment and death sentence.
2. Session Judge / Additional Session Judge : Section 28
This Judge can pass imprisonment for any term including life imprisonment but the death sentence
passed by these Judges will require confirmation from the High Court.
3. Assistant Session Judge : Section 28
The assistant judge of session Court may pass an imprisonment up to 10 years & not authorized to
pass death sentence.
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4. Chief Judicial / Metropolitan Magistrate : Section 29
This magistrate can pass a sentence of imprisonment up to 7 years. (metropolitian majistrates are
appointed for metropolitian areas the city in the state whose population exceeds 1 millon shall be
metropolitian area for the purpose of this code) (chief judicial magistrates are appointed for
districts)
5. Magistrate of First Class : Section 29

This magistrate can pass sentence of imprisonment up to 3 years & maximum fine of Rs. 10,000 or
both.
6. Magistrate of Second Class : Section 29

This magistrate can pass sentence of imprisonment of 1 year & fine up to Rs. 1,000 or both.
Note: A Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate
and that of a Metropolitan Magistrate, and the powers of the Court of a Magistrate of the First class.
Executive Magistrate : In every district and in every metroplitian area the state government can appoint
as many persons as it thinks fit to be executive magistrate and shall appoint one of them to be district
magistrate.
Que: Angad is charged for the Murder of Binod. The charge sheet is filed in the Court of
Chief Judicial Magisstrate, who passed an order of sentence of imprisonment for life. Angad
engages you as an advocate. Advice the course of action to Angad, giving reasons.
Que: A magistrate of the first class passed a sentence of imprisonment for a term of three years with a
fine of Rs.4,000 and in lieu of non-payment thereof an additional imprisonment for another one year.
Has the aggrieved person any right to appeal against this sentence ?
SENTENCE OF IMPRISONMENT IN DEFAULT OF FINE
As per section 30 of Code of Civil Procedure, if a person was ordered for payment of the fine by the
magistrate and such person makes a default in payment of fine, in this case the magistrate may impose
additional imprisonment to the person in making a default in payment of the fine.
However the following conditions should be satisfied before ordering additional imprisonment :
The imprisonment should not exceed the powers of magistrate undersection 29.
For example if the Magistrate of second class wants to give additional imprisonment in default of fine
then such imprisonment can be for maximum 1 year.
In case the, if punishment of imprisonment is given, then the additional imprisonment in default of payment of
fine shall not exceed, 1/4 th of the original imprisonment which the magistrate was capable to give.
In case the magistrate grants extra imprisonment in default of fine then total imprisonment including the
th
1/4 extra imprisonment may exceed the powers of magistrate.
For example if Magistrate of Second Class gives additional imprisonmentthen it can be for maximum 3 months
(1/4th of 1 year) and in this case the total imprisonment can be for 16 months given by Magistrate of
Second Class including additional imprisonment in default of fine.
Beta 2 bate yad rakho agar aap ko saja hui thi to magistrate ki jitney power hai usi ke andar saja
sunaega + Jo saja originally suna sakta hai uske ¼ hi additional saja de sakta hai aur agar additional
saja deta hai to total saja uski power se bahar ja sakti hai!
Sentences in cases of conviction of several offences at one trial
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Section 31 relates to the quantum of punishment which the Court is authorised to impose where the
accused is convicted of two or more offences at one trial.
Que: A Magistrate of the First Class passed a sentence of imprisonment for a term of three
years with a fine of 6,000 and in lieu of non-payment thereof, an additional imprisonment
for another one year. The aggrieved party, Anshul, wants to prefer an appeal against the
order of the Magistrate. Will he succeed ? Advise with reasons.
ARREST OF PERSONS: SECTION 41

BHAI IN SARE CASES MAIN AAP,
BINA WARRANT KE ARREST HO SAKTE HO
In the following cases a police officer may make an arrest without warrant or orders from Magistrate:
1) If a person has committed a cognizable offence and the police officer have reliable information about
his linkage in the cognizable offence.
2) Any person in whose possession an instrument of House Breaking is found without any lawful excuse.
3) Any person who has been proclaimed as an offender by state government.
4) Any person in whose possession any stolen property has been found without lawful excuse.
5) Any person who obstructs a police officer while discharging his duty or who attempts to escape from
the police custody.
6) Any person who is deserted from armed forces. Deserted is a person who leaves arm forces without a
Notice.
7) Any person against whom a complaint has been received in India that he has committed an offence
outside India & the offence is punishable in India.
8) Any person who is a convict and was released from jail on some terms and conditions and he makes a
breach of such terms and conditions.
9) Any person for whose arrest request has been received from another police station & the request
clearly specifies the name of the person and the offence committed by the person. Such police
officer who has received a complaint may make an arrest without warrant.
At the time of making arrest under section 41, the police officer has to follow certain measures which are
given in section 41A:
 Issue a notice to and ask such accused against whom any complaint
or information has been received regarding congnizable offence to
appear before the police officer or at such other reasonable place as
specified in the notice.
 If the accused complies with the terms and conditions mentioned in the
notice he should not be arrested in respect of the offences as specified
in the notice till the time he complies with the conditions given in the
notice.

If the accused does not comply with the notice or is not giving his
identity then the police officer subject to the orders passed by
competent magistrate mayarrest such accused.
As per Section 41B of CRPC the police officer at the time of making thearrest shall:
a. Should have a clear, visible and accurate identification of his
name, which will provide his identification.
b. Shall prepare a memorandum of arrest (report of arrest) which
shall be attested by at least one witness who is a family member
of arrested person or is a respectable member of locality where
arrestis made.
c. Provide information to the arrested person that he has a right to

inform his relative or friend that he has been arrested however if
memorandum of arrest is attested by family member only then there
is no need to provide this information.
As per section 41D when after arrest if a person is interrogated, he has a right to meet an advocate of his
choice during interrogation but not throughout interrogation.
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Section 41C deals with establishing of police control room in every district and at state level and
in every police control room at every district the names and addresses of the persons arrested
and the name and designation of the police officer has to be displayed on the notice board kept
outside the police control room.
In the case of Arnesh Kumar Vs State of Bihar, it was decided by the Supreme Court that arrest must
be made only when all the above conditions are satisfied and if the police officer is given free power to
arrest, it will increase corruption and may also result in harassment of people by police.
Que: What are the duties of a police officer while making an arrest under Section 41B and the right of an
arrested person under Section 41D of Criminal Procedure Code, 1973 ?
ARREST ON REFUSAL TO GIVE NAME AND RESIDENCE: SECTION 42
If a person who is accused of committing a non-cognizable offence refuses to give his name and address
or gives a name and address which the police officer believes to be false or misleading, the police officer
can make an arrest without warrant. Such a person cannot be kept in police custody beyond 24 hours.
In the following cases such a person can be kept for more than 24 hours:
(a) If his correct address has been found & it is proved that he gave wrong address.
or
(b) He is not ready to sign a bond or produce adequate sureties or guarantor.
In this case such person must be produced before the magistrate.
This section basically applies when a person commits non cognizable offence in presence of the police
officer or the accused is before the police officer after committing such offence, arrest will be done only
when he refuses to give his name and address.
ARREST BY A PRIVATE PERSON: SECTION 43

1) If any cognizable offence takes place in presence of any person, such a person can make an arrest.
2) If any person finds a proclaimed offender such person can make an arrest.
This right of arrest arises under the Common Law which applies to India Re. Ramaswamy Aiyar Case
ARREST BY MAGISTRATE: SECTION 44

If a cognizable offence takes place in presence of a magistrate, even the magistrate is authorized to
make an arrest or issue a warrant of arrest to any police officer, he can also order any civilian to make
an arrest
However, Section 45 protects members of Armed Forces from arrest where they do something in
discharge of their official duties. They could be arrested only after obtaining the consent of the Central
Government.
PROCEDURE TO MAKE AN ARREST: SECTION 46

TUMHE WO CHOO SAKTA HAI,
TUMHE 24 Ghante Ke ANDAR MEGISTRATE KE SAMNE PESH KAREGA
1) Arrest means putting a Restriction on Freedom of movement of any person. It also means depriving a
person from its liberty.
2) The Police officer is authorized to touch a person while making an arrest. If the accused shows any
forcible Resistance, the police officer can take all the necessary steps to make an arrest successful.
However, police officer is not authorized to cause death of a person who is not charged with an
offence, punishable with death punishment or life imprisonment while making an arrest.
3) The police officer can go anywhere in India to make an arrest. However if he goes outside India to
make an arrest, he will have to take permission from Home Ministry of the Country.
4) The magistrate should be informed within 24 hours of making an arrest.
5) The person who is arrested cannot be kept in police custody for a period of more than 24 hours
without producing him in front of magistrate. (Excluding travel time & public holidays).
6) When an accused is presented before a magistrate, the magistrate can even send him on a remand of
15 days (14+1). The period of remand cannot exceed 60 days.
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7) Officers in-charge of the concerned police stations shall report to the Magistrate the cases of all
persons arrested without warrant, within the limits of their respective police stations whether such
persons have been admitted to bail or otherwise. (Section 58)
8) A person arrested by a police officer shall be discharged only on his own bond or on bail or under the
special order of a Magistrate, (Section 59).
9) If a person in lawful custody escapes or is rescued, the person, from whose custody he escaped or
was rescued, is empowered to pursue and arrest him in any place in India and although the person
making such arrest is not acting under a warrant and is not a police officer having authority to arrest,
nevertheless, the provisions of Section 47 are applicable which stipulates provisions relating to search
of a place entered by the person sought to be arrested.
10) Unless there is an exceptional circumstance, no women shall be arrested after sunset and before
sunrise, however in case of exceptional circumstance the women police officer by making a written
report with prior permission of magistrate may make an arrest at anytime.
11) As per section 49, the person arrested shall not be subject to more restraints except the ones which
are necessary to prevent his escape.
12) As per section 50, the person who has been arrested shall be informed of grounds of arrest and right
of bail and the arrested person may arrange for sureties on his behlf so that he can be released on
bail.
13) As per section 50A, the police officer or the person who makes tha arrest shall give information
relating to arrest to any of friends or relatives or such other nominated person as informed by the
arrested person for giving of the information.
14) As per section 53, at the request of police officer not below the rank of sub inspector the medical
examination of accused is done to know the facts which will afford the evidence as to commission of
an offence.
SUMMONS & WARRANTS

CHALO BULAWA AAYA HAI,
SUMMON DEKAR COURT NE BULAYA HAI!
1) A Summon is issued by the court for appearance of the parties or production of any document or any
evidence in the court.
2) Summon shall be in writing and signed by Presiding officers of the court or by any other officer
authorized by the High Court.
3) Summon shall bear a seal of the court.
4) Summon should clearly specify the day, date and time and place for making an appearance in the
court.
5) Summon is issued in the cases where the offence is punishable with an imprisonment of less than 2
years.
SERVICE OF SUMMON
1) As per section 61, the summons issued by the Court shal be in witing in duplicate, signed by the
presiding officer of the Court. Summons may be sent to the accused and witnesses.
2) As per section 62 Summon shall be delivered by a police officer or by any officer authorized by the
court.
3) If the defendant refuses to accept summon, the court after making reasonable enquiry may declare
that the summon has already been delivered.
4) If the defendant willfully remains absent from the place where summons are to be delivered, the
police officer or the authorized person of the court may affix copy of summon at a conspicuous place
of the house where accused ordinarily resides and will declare that summon has been delivered it is
substituted service of summon under section 65.
When personal service of summons cannot be affected under Section 62, section 64 allows the extended
service which can be provided by leaving one of the duplicates with some adult male member of his
family residing with him who may also be asked to sign the receipt for that. A servant is not a member of
the family within the meaning of Section 64.
Service of Summons on Corporate Bodies : section 63

Summon will be delivered at the registered office of the Company or by seriving it on the secretary, local
manager or other principal officer of the corporation.
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Summons on Government Departments :
Summons shall be delivered / addressed to the Head of Departments.
In the case of a Government Servant, the duplicate copy of the summons shall be sent to the head of the
office by the Court and such head shall thereupon cause the summons to be served in the manner
provided by Section 62 and shall return it to the Court under his signature with the endorsement required
by Section 62. Such signature shall be evidence of due service under section 66.
As per section 67, if summons are to be served outside the jurisdiction of the Court, it shall be sent in duplicate to
the magistrate within whose jurisdiction the person summoned resides ad then it is served by that Court and
duplicate is sent with signature and endorsement.
According to Section 69 a Court issuing a summons to a witness may, in addition to and simultaneously with the
issue of such summons, direct a copy of the summons to be served by registered post addressed to the witness at
the place where he ordinarily resides or carries on business or personally works for gain and when an
acknowledgement is signed by the witness or an endorsement is made by a postal employee that the witness
refused to take delivery of the summons has been received, the Court issuing the summons may declare that the
summons has been duly served.
In the case of Central Bank of India Vs DDA, it was decided that the branch manager is the local manager and if
summon has been served on him it shall be considered that summon has been delivered to the Company.
Que: Explain the substituted mode of service of summon and its effect.
WARRANT: SECTION 70
1. Warrant means a permission given by the magistrate to the police officer or any other officer
authorized by the court to make an arrest.
2. A valid warrant must fulfill the following conditions :
a) It must be written.
b) It must contain the name of the officer who is to execute the warrant.
c) It must also state the name of the person to be arrested and description of his offence.
d) It must be signed by the presiding officer of the court.
e) It must have seal of the court.
f) A warrant will remain valid until an arrest is made or is cancelled by the court.
Normally there are two types of warrants i.e. bailable warrant and non bailable warrant in case of
bailable warrant the warrant specifies that the person arrested may be released against a bond with
sureties for his appearance before the Court on a specified date and time and the warrant which is not a
bailable warrant is a non bailable warrant.
Que: Explain the requisites of a ‗warrant of arrest‘. What is the time limit within which the
police officer should bring the person arrested before the court
Difference between summons and Warrants
Summons Warrants
Summon is a notice to appear before a magistrate Warrant is a more drastic step it is issued in serious
cases after a summon is disobeyed or if the
accused has knowingly avoided the service of
summons.
The person who absconds to avoid service of The person who absconds to avoid service of
summon is not punishable summon is punishable under IPC
There is a provision of substituted service of There is no provision for substituted service of
summons warrants.
Summons are issued in 2 copies Warrant is issued only one copy.
Issue of summon is not drastic Issue of warrant is more drastic step
PROCLAMATION AND ATTACHMENT

If the warrant issued by the court remains unexecuted the court may take following steps:
a) Issuing proclamation : Section 82.
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b) Attachment of property: Section 83.
1) Proclamation :
Proclamation means a formal declaration / Announcement, when a warrant issued by the court
remains unexecuted and the court believes that the accused is absconding to avoid the warrant
issued against him. The court can publish a written proclamation to compel his appearance in the
court. The proclamation must specify the date and time for appearance. The accused must present
himself in the court or any other place specified by the court in a period of 30 days or more (not less
than 30 days) from the date of issuing proclamation.
The proclamation should be published as follows:
(a) it shall be publicly read in some conspicuous place of the town or village in which such person
ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person
ordinarily resides or to some conspicuous place of such town or village;
(c) a copy of proclamation shall be affixed to some conspicuous part of the Courthouse;
(d) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily
newspaper circulating in the place in which such person ordinarily resides.
2) Attachment: If the accused does not appear within the time specified by the Court, after issuing
proclamation, the court can pass an order for attachment of the properties of the accused.
Attachment is the step followed after proclamation.
The purpose of attaching the properties is not to punish the accused but to compel his presence in
the court.
Que: What actions can the Court take if the accused does not appear in the Court under the provisions of
CRPC.
Proclamation Attachment
It is issued when the court is satisfied that the The object of attachment is to compel the
warrant has been issued but the accused is appearance of the person agaist whom
absconding. proclamation is already issued, it is a penalty and
may also result in sale of the property.
The mere fact that the accused could not be found The object of attachment is not to punish but to
is not enough for issue of proclamation. compel his appearance.
Que: What are the remedies under Criminal Procedure Code, where a warrant remains unexecuted ?
SUMMONS TO PRODUCE
Sometimes it is necessary that a person should produce a document or other thing which may be in his
possession or power for the purposes of any investigation or inquiry under this Code. This can be
compelled to be produced by issuing summons (Sections 91 and 92) or a warrant (Sections 93 to 98).
This kind of summon may be issued by the Court or or a police officer incharge of the police station for
production of document or thing which is considered necessary or desirable for purpose of investigation,
inquiry or trial or other proceedings.
SEARCH WARRANT: Section 93

A search warrant means a permission to make a search for any purpose as specified by the court. Search
warrant can be issued by the court in the following cases:
i) Where the court believes that the person summoned has documents related to the case but will not
produce it.
ii) Where the court believes that any document or information which is not known to the court may be
in possession of any person.
iii) When a general inspection is necessary.
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(Note: However, no search warrant can be issued to take search of the documents which are in
possession of postal authorities and documents relating to official communication & documents under
banker book evidence act).
As per section 94, warrant may be issued and police officer may be authorised to search a place where
any stolen property is kept or deposited or is sold or where any objectionable object is kept and for the
production of same.
As per section 95, if any newspaper or any document contain any punishable matter under IPC in the
opinion of State Governement then the State Government by issuing notification declare that every copy
of document or the newspaper be forfeited to Government and then the police officer may seize all such
documents and newspapers.
In terms of Section 97 any District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class
who has reasons to believe that any person is confined under such circumstances that the confinement
amounts to an offence, he may issue a search warrant for the search of the person so confined. The
person if found shall be immediately produced before the Magistrate for making such orders as in the
circumstances of the case he thinks proper.
SECURITY FOR KEEPING THE PEACE AND GOOD BEHAVIOR AND PROCEEDINGS FOR MAINTENANCE OF
PUBLIC ORDER:
Security for keeping peace : Section 106
When a person is convicted by Court of Session or by magistrate of first class in respect of the following
offences or for abetting such offences:
a) Offences punishable by chapter VIII of Indian Penal Code.
b) For an offence which includes assault or using a criminal force, or for committing a mischief.
c) For any offence of criminal intimidation or offence which will breach the peace
Such a convict may be asked by the court to give a security at the time of passing / giving
punishments, for keeping peace.
The court may at the time of passing sentances may order the person for Security, which can be taken
for maximum period of 3 years.
If the conviction of the person is set aside on the appeal then the bond or security taken as above shall
be void.
Security for Keeping Peace in Other Cases :Section 107

a) When the court (executive magistrate) itself or on receiving information, is of the opinion that any
person may breach peace or
b) Any person can disturb public tranquility or do any wrongful act.
c) Any person can do some wrongful act which has the effect of disturbing peace.
In this case the court can ask such person to give reasons as to why he must not execute a bond for
keeping peace. The bond can be executed for a maximum period of 1 year.
The provision of section 107 is based on a principal that ―prevention is better then cure‖
Sections for reference only not the part of Syllabus:
108 Security for good behavior from person disseminating seditious (treasonsome) matters
109 Security for good behavior from suspected persons.
110 Security from persons who are habitual offenders for not exceeding 3 years.
MAINTENANCE OF PUBLIC ORDER & TRANQUILITY

Unlawful Assemblies
An assembly of 5 or more persons which is not lawful or may harm the public peace is known unlawful
assembly.
Dispersal of Assembly by Civil Forces :

1) Any in-charge of police station or any executive magistrate may take all the necessary measures
to disperse unlawful assembly or any assembly of more than 5 people which can cause
disturbance to public order public peace.
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2) If after taking the steps to disperse the assembly, the assembly does not disperse then police
officers can use civil forces & if using of civil force is also ineffective, police officers can make an
arrest.
Use of armed forces to disperse assembly :

If arrest is also ineffective, the executive magistrate of the highest rank can call the arm forces to
disperse the Assembly.
No prosecution shall be instituted against such persons (persons who are officers or members of the
armed forces) in any criminal Court except with the approval of Central Government or with the sanction
of State Government in any other case.
Conditional order for removal of nuisance
Section 133 lays down the following public nuisances which can be proceeded against by the
Magistrate:
(1) Removal of the unlawful obstruction or nuisance from any public place or from any way, river or
channel which is or may be lawfully used by the public; or
(2) Carrying on any trade or occupation, or keeping of any goods or merchandise, injurious to the
health of the community; or
(3) The construction of any building or the disposal of any substance, as is likely to cause
conflagration (fire)or explosion; etc.
(4) The building, tent or structure near a public place.
(5) The dangerous animal requiring destroying, confining or disposal.

(Magistrate agar chahe to nuisances ke against action le sakta hai, yeh, koi kharab chhez kisi raste ya
nadi ko rok rahi hai use remove kar sakta hai, koi business main aise saman beche ja rahe hai jo
public ki health ke liye khatarnak hai unhe hatwa sakta hai, koi building ke construction se ya kisi
vast uke chalte agar kahi aag ya blast hota hai to use rukwa sakta hai, koi building ya tnet agar public
place ke pas hai ya kisi dangerous animal ke chalte kuch nuksan ho sakta hai to use bhi pakda ya
niptaya ja sakta hai section 133 ke andar)
For initiating prevention under this Section the Magistrate should keep in mind that he is acting
purely in the public interest.
Public nuisance is something which creates any kind of obstruction or any article which is dangerous to
public.
Que: Explain the conditional order for removal of nuisance issued by executive magistrate under Section
133 of Criminal Procedure Code, 1973.
Power to issue order in urgent cases of nuisance or apprehended danger

(a) As per Section 144:
(b) A District magistrate (authorization of State Government not required); or
(c) A Sub-divisional magistrate or executive magistrate, if authorized by State Government.
Are of the opinion that any act can take place that can disturb public peace create nuisance or danger to
the life of human beings or property.
In this case, the above mentioned magistrates may pass order for discontinuance of certain acts by the
persons or an order may be passed for taking possession of property or assembly of the people can be
restricted.
Term:-Maximum 2 months plus a further period of maximum 6 months.

This order can be imposed in case of riots, disorders, danger to health and safety of people.
Preventive action of the police and their power to investigate

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It is the duty of the every police officer to prevent the commission of any cognizable offence. The police
officer also has the right u/s. 149 of Cr.P.C. to take all the measures to prevent cognizable offences.
i) If the police officer has any information about commission of any cognizable offence, he must
communicate the information to superior police officer whose duty is to prevent cognizable offence.
ii) The police officer can make an arrest without any warrant to prevent the cognizable offence.
iii) The arrested person can be kept in police custody for a period of not more than 24 hours.
Que: Shyam, a police officer comes to know from reliable sources that four persons are
staying in a house and planning to kidnap and murder Rajan. They are equipped with
automatic weapons. The police officer apprehends that they will commit the crime at any
moment. He directly goes to that house and, without any warrant or order from the
Metropolitan Magistrate, arrests all the four persons along with weapons in their
possession. Is the arrest of all the four persons valid ? Decide with reasons.
Inspection of weights and measures :
1) The police officer in charge of any area may enter into any place or business premises without a
warrant to make an inspection of weighting instruments.
2) If the police officer has a reason to believe that the weights and measure instruments are faulty or
do not show a correct weight, he can seize the instrument and inform the magistrate after seizing
the instrument.
Information to police officer and their powers to investigate :
In Cognizable Offence – Section 154 and 155:

1. The information related to cognizable offences may be given by any person to the police officer
orally or in written form.
2. If the information is provided to the police officer orally, the police officer shall reduce that
information into written form & should read the information over the informer.
3. The police officer should make an entry into the book maintained by him under the orders of state
government and shall enter such information into book along with the signature of informer.
4. When an entry is made by the police officer into the book prescribed by the government such entry
becomes a government record.
5. Such written information is called as FIR (First information Report).
6. The word F.I.R. is not defined in the criminal procedure code.
7. The copy of information as recorded shall be given to the informant immediately free of cost.
8. The recording or entry of such information (FIR) shall be videographed.
9. Even the magistrate can order the police officer to register an F.I.R. for the purpose of investigation.
10. If the police officer refuses to register an F.I.R., the aggrieved party can approach to the
superintendent of Police (S.P.) by making a written application by post to the suprentendent of
police and if suprentendent of police is satisfied that the cognizable offence is committed, he shall
himself investigate the offence or direct his subordinate officer to investigate the offece in the
manner given in the code and such officer shall have the powers of officer incharge of police station
in relation to that offence.
11. After registration of FIR, the police officer will start the investigation.
12. Delay in registration of FIR is not the reason for rejection of the case.
13. In the case of State of Maharashtra VS Suresh Nirvuti Bhusare, it was decided that dealy in rape case
in registering FIR is not material as dealy can arise on account of many reasons as it concerns
reputation and the honour of family of the victim.
In non-cognizable offence
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1) If any police officer receives related to non-cognizable offence, he shall make an entry into the
books maintained by him as per the orders of the state government.
2) The police officer will forward a copy of information to a magistrate.
3) If magistrate orders, the police officer can start investigation. No investigation shall be started by
the police officer without the orders of magistrate.
4) If a case relates to cognizable as well as Non-cognizable offence, it shall be treated as cognizable
offence.
In the case of (Mohd.Yousuf v. AfaqJahan)it was decided that, for the purpose of enabling the police to
start investigation, it is open to the Magistrate to direct the police to register an FIR. There is nothing
illegal in doing so. After all registration of an FIR involves only the process of entering the substance of
the information relating to the commission of the cognizable offence in a book kept by the officer-in-
charge of the police station as indicated in Section 154 of the Code.
Search by Police Officer
Section 165 authorises general search if the police officer has reason to believe that anything necessary
for the purpose of an investigations may be found.
The officer acting under this section must record in writing his reasons for making of a search. But, the
illegality of search will not affect the validity of the articles.
Whenever any person is arrested or detained in custody and it appears that the investigation cannot be
completed within the period of twenty four hours and if there are grounds for believing that the
accusation or information is well founded, the officer in charge of the police station or other competent
investigation officer shall promptly transmit to the nearest judicial Magistrate a copy of the entries in
the diary relating to the case, and shall forward the accused to such Magistrate at the same time.
The Magistrate may then authorise the detention of the accused in custody for a term not exceeding of
fifteen days.
Every investigation must be completed without undue delay. On completion of investigation, the
competent police officer under the Code shall forward a police report with the prescribed details to a
Magistrate empowered to take cognizance of the offence and send along with the report all documents
or relevant extracts on which the prosecution intends to rely.
In the case of State of Punjab Vs Balbir Singh it was decided that if the provisions relating to search
section 100 and 165 are not followed than it will amout to an irregularity.
completed within the period of twenty four hours as laid down in Section 57 and that there are grounds
for believing that the accusation or information is well founded, the officer in charge of the police
station or other competent investigation officer shall promptly transmit to the nearest judicial
Magistrate a copy of the entries in the diary relating to the case, and shall forward the accused to such
Magistrate at the same time (required to be mentioned day by day under Section 172).
fifteen days. (Section 167)
Every investigation must be completed without undue delay. On completion of investigation, the
competent police officer under the Code shall forward a police report with the prescribed details to a
Magistrate empowered to take cognizance of the offence and send along with the report all documents
or relevant extracts on which the prosecution intends to rely. (Section 173)
LIMITATION PERIOD IN RESPECT OF CRIMINAL OFFENCES
Limitation period means the time within which Court should be approached for getting relief:
 If the offence is committed which is punishable with fine only limitation period is 6 months.
 If the offence is committed in which the imprisonment can be given upto 1 year, limitation period is
1 year.
 In case of 1 to 3 years imprisonment in this case limitation period is 3 year.
 No limitation period in case of more than 3 years imprisonment.
COMMENCEMENT OF PERIOD OF LIMITATION
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The limitation period for filing a complaint commences on the following date
1. On the day when offence is committed
2. If the offence comes into knowledge at later date then the period of limitation begins from the day
when it comes to the knowledge of aggrieved party or police officer.
3. If the identity of offender is unknown then the period of limitation commences on the day on which
the identity of offender comes into the notice of aggrieved or police officer, whichever is earlier
The following period can be excluded from the period of limitation
1. The period during which wrong prosecution was prosecuted(in good faith)
2. If the notice of prosecution was given then the period of notice.
3. The period in which the offender absconds or conceals himself.
Continuing offence — In the case of a continuing offence, a fresh period of limitation begins to run at
every moment during which the offence continues. (Section 472)
Extension of period of limitation — The Court may take cognizance of an offence after the expiry of the
period of limitation if it is satisfied that (i) the delay is properly explained or (ii) it is necessary to do so
in the interests of justice. (Section 473)
SUMMARY TRIALS: Section 260 - 265

1) Summary Trial means speedy disposal of the cases.
2) The offences which are punishable for a term not exceeding 2 years can be tried summarily.
3) The following magistrates are authorized for Resolving a case by summary trial :
a) Chief Judicial Magistrate (C.J.M.)
b) Any magistrate of first class who is authorized by High Court.
The offences which can be tried summarily

1) Offences which are punishable for an imprisonment up to 2 years.
2) In the cases related to theft and the value of stolen property does not exceed Rs. 2000.
3) If any stolen property is found in possession of a person and the value of stolen property does not
exceed Rs. 2000
4) If any person conceals or disposes of any stolen property and the value of stolen property does not
exceed Rs. 2000.
5) If any person attempts to breach the peace.
When magistrate accepts any case for a summary trial and during the trial the magistrate believes that it
is undesirable to try the case summarily, the magistrate may recall the witness and re-hear them in a
manner provided in a code.
Under summary trial maximum 3 months‘ imprisonment can be granted.
Record in Summary Trial:

If magistrate accepts any case for summary trial he must maintain the following records:
i) Serial Number of case.
ii) The date of commission of offence,
iii) The date of report or complaint etc.
iv) Name of complainant
v) The name, parentage and address of the accused
vi) The finding
vii) The date on which proceedings terminated
viii) The sentence or the final order
Judgment in Summary Trial :

Every judgment given under summary trial must be signed by magistrate along with reasons.
To try a case as summarily is purely a matter of discretion of the court, the magistrate or the court
cannot be compelled to try a matter summarily.
NOTES:
In case of State of Assam Vs R K Krishna kumar it was decided that the opportunity of being heard
should be given to the opposite party before granting an anticipatory bail
Section 31 of CRPC gives power to the courts to combine the punishment when accused is convicted for
more than 1 offence
Anticipatory bail can be granted only by the high court and the court of sessions
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Section no 133 of CRPC grants a power to magistrate to pass the conditional order for the following
purposes
a) For removal of unlawful obstruction or nuisance from any public place or from reverse or from any
other place which is used by public
b) To stop the persons from doing any place or occupations which involves keeping out goods that are
injurious to health of community
c) For removal of building ,tent or structure near to a public place
Section no 165 of CRPC grants power to a police officer to make a general search if he believes that
anything necessary for the purpose of investigation may be found ,however the police officer must
record in writing reasons for making a search.
Que: Sohan is tried summarily by the Metropolitan Magistrate on the charge of
committingtheft and is sentenced to undergo imprisonment for a period of six months. Can
Sohanchallenge this decision ? If so, on what grounds ?
Inherent Powers of High Court – Section 482

As per section 482 of CRPC, no provision in the CRPC shall affect or limit the inherent powers of High
Courts to make such orders as may be necessary to give effect to any order which is made under the
CRPC by any court or any order that is required to provide justice to any party. So section 482 gives
administrative as well as judicial powers to High Courts such as the power to cancel any FIR, to cancel
any investigation or criminal proceedings pending before the High Court. The High Court can take
cognizance of any miscarrage of justice by any court and can take action under the powers given to it by
section 482. These powers can not be curtailed by any other provision of CRPC.
In the case of Madhu Limye Vs State of Maharashtra, the Supreme Court has made the following
principles that would govern the inherent powers of the High Courts:
1. The power under section 482 can not be used, if there is a specific provision in the CRPC to
resolve the grievence of the aggrieved party.
2. It should be exercised very rarely and only to prevent the abuse of justice or to secure the ends
of justice.
3. The power can not be exercised against any express bar or restriction given under any other
provision in the code.
It is a well settled principal that the powers under section 482 will be exercised only when no other
remedy is available to the litigant (party to any case) under any other provision of CRPC.
(example ke liye police aap ko jabarjasti pareshan kar rahi hai aur aap se paise mang rahi hai, aur
jhoothi FIR aap ke against register kari hai to aap us case main High Court ko apply kar sakte hai
section 482 ke andar kafi important section hai yeh)
SECTION 190 OF CRPC DEALS WITH COGNIZANCE OF OFFENCE BY THE MAGISTRATE

In the case of Mohhamadsafi it was decided that the court was allowed to accept any case only when the
conditions relating to start of the proceedings are fulfilled, otherwise the court does not have any
jurisdiction to such case.
The magistrate of first class and of second class can accept a case if:
1. He receives a complaint
2. A police report is received
3. Information received from any other person
4. A case of his own knowledge
When a Magistrate takes cognizance of an offence upon information received from any person other than
a police officer or upon his own knowledge then the accused is informed that he is entitled to to have
the case inquired into or tried by another Magistrate and if the accused objects to further proceedings
before the Magistrate taking cognizance, the case is transferred to other Magistrate as is specified by the
Chief Judicial Magistrate. (Section 191)
The Chief Judicial Magistrate may after taking cognizance of an offence transfer the case for inquiry or
trial to any competent Magistrate subordinate to him. Similarly a first class Magistrate may transfer a
case to such other competent Magistrate to try as the Chief Judicial Magistrate specifies. (Section 192)
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Cognizance of an offence by Courts of Session (Sections 193 and 194)
The Court of Session does not take cognizance of any offence, as a Court of original jurisdiction unless
the case has been given to it by a competent Magistrate.
The Additional Sessions Judge and Asstt. Sessions Judge try such cases as the High Court may direct or
the Sessions Judges may make over to them.
Complaints to Magistrate
A Magistrate taking cognizance of an offence on complaint examines the complainant and the witnesses
if any upon oath and then the substance of such examination is reduced to writing and signed by the
complainant and witnesses and also by the Magistrate.
However, when the complaint is made in writing, the Magistrate need not examine the complainant and
the witnesses.
If the Magistrate makes over the case to another Magistrate, after examining the complainant and the
witnesses, they need not to be re-examined by the latter Magistrate.
If a complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall
return it for presentation to the proper Court if the complaint is in writing, and if the complaint is oral,
he should direct the complainant to the proper Court.
The Magistrate enquiring into a case may take evidence of witnesses on oath but where the offence is
triable by the Court of Session; he shall call upon the complainant to produce all his witnesses and
examines them on oath. He may dismiss the complaint if he believes there is no sufficient ground for
proceeding and may record his reasons for doing so.
On the other hand if the Magistrate is of opinion that there is sufficient ground for taking cognizance of
an offence he may either issue summons for attendance of the accused.
Every charge under this Code shall state the offence with which the accused is charged specifying the
law and the name of the offence, particulars of time and place of the alleged offence, if more than one
offence is committed by same person then he may be charged at one trial for every such offence.
As per section 258 if a person is convicted or accused for an offence then he shall not be liable to tried
again for the same offence, however this can be done with the consent of same court or any superior
court or with the consent of same magistrate.
As per section 353 judgment in every trial in any Criminal Code of original jurisdiction shall be
pronounced in open Court by the Presiding officer immediately after the termination of the trial or at
some subsequent time of which notice shall be given to the parties or their pleaders:
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c) by reading out the operative part of the judgment and explaining the substance of the judgment in a
language which is understood by the accused or his pleader.
As per section 362 once the court has signed its judgment, it shall not be reviewed or altered except in
a manner provided in the court however critical or arithmetic error may be corrected by the court.
No appeal shall be made for any judgment or order except in manner provided in the code, if the
criminal court acquits any person then the state government may order the public prosecutor to file an
appeal to any superior court to pass the judgment or order.
No appeal shall be dismissed summarily unless the appellant or his pleader has had a reasonable
opportunity of being heard in support of the same. An Appellate Court may if it thinks additional
evidence to be necessary shall record its reasons and may either take such evidence itself or direct it to
be taken by a Magistrate.
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If an appeal lies, but an applications for revision has been made to the High Court by any person and the
High Court is satisfied that such application was made under the erroneous belief that no appeal lies
thereto, the High Court may treat the application for revision as a petition of appeal and deal with the
same accordingly.
Under Section 438, provisions have been made for a person who has reason to believe that he may be
arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or
the Court of Session for a direction and that Court may if it thinks fit direct that in the event of such
arrest, the person shall be released on bail on such conditions which the Court may include in such
directions.
Bail may be taken when any person other than a person accused of a non-bailable offence, is arrested or
detained without warrant by an officer-in-charge of a police station or is brought before a Court, and is
prepared at anytime while in custody or at any stage of the proceedings before such Court to give bail,
such person shall be released on bail. Such police officer or the Court if it thinks fit may instead of taking
bail from such person discharge him on executing a bond without sureties for his appearance as may be
required (Section 436).
Compounding of Offence
Section 320 of the Cr.PC enumerates the provisions related to compounding of offences. Compounding
means settlement of offence committed by a person. The settlement must be with the consent of the
court of law.
There may be the times when parties to a suit do not want to continue further proceedings in the court
and they want to settle it out of the court amicably, then the compounding comes into picture. In such
case, future proceedings do not take place in the court.
section of iPC Name of the offence Who can compound the offence
Section 325, 337, 338 IPC) Voluntarily causing grievous hurt. To whom hurt has been caused
Section 357 IPC Assault or criminal force in attempting The person assaulted or to whom the force
wrongfully to confine a person. was used
Section 381 IPC Theft, by clerk or servant of property in The owner of the property stolen.
possession of master.
Section 406, 408 IPC Criminal breach of trust. The owner of the property on which a
breach of trust has occurred.
Section 418 IPC Cheating with knowledge that wrongful The person who has been cheated.
loss may ensue to a person whose interest
offender is bound to protect.
Section 420 IPC Cheating and dishonestly inducing The person who has been cheated.
delivery of property.
Bail in cases of bailable offences (Section 436)

According to section 436, if a person accused of an offence other than non-bailable offence (i.e. Bailable
Offence) is arrested or detained without warrant by an officer in charge of a police station, or appears or
is brought before a Court, and he is prepared to give bail, such person shall be released on bail.
Further, if such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is
unable to furnish surety, instead of taking bail from such person, discharge him on his executing a bond
without sureties for his appearance.
Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient
ground for the officer or the Court to presume that he is an indigent person for the purposes of above.
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However, where a person has failed to comply with the conditions of the bail-bond as regards the time
and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in
the same case he appears before the Court or is brought in custody and any such refusal shall be without
prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty
thereof under section 446 of Cr. P. C.
Bail in cases of Non-bailable Offences (Section 437)

When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or
detained without warrant by an officer in charge of a police station or appears or is brought before a
Court (other than the High Court or Court of session), he may be released on bail but subject to:
(i) such person shall not be so released if there appear reasonable grounds for believing that he has
been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and
(a) he had been previously convicted of an offence punishable with death, imprisonment for life or
imprisonment for seven years or more, or
(b) he had been previously convicted on two or more occasions of a cognizable offence punishable
with imprisonment for three years or more but not less than seven years.
However, the Court may direct that a person referred to in clause (a) or clause (b) above be released on
bail if such person is under the age of sixteen years or is a woman or is sick or infirm.
Further, the Court may also direct that a person referred to in clause (b) above be released on bail if it is
satisfied that it is just and proper so to do for any other special reason.
The bail may also be cancelled.
If, in a case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not
concluded within a period of sixty days from the first date fixed for taking evidence in the case, such
person shall, if he is in custody during the whole of the said period, be released on bail to the
satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise
directs.
If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and before
judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the
accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the
execution by him of a bond without sureties for his appearance to hear judgment delivered.
Bail to require accused to appear before next appellate Court
Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the
Appellate Court, shall require the accused to execute bail bonds with sureties, to appear before the
higher Court as and when such Court issues notice in respect of any appeal or petition filed against the
judgment of the respective Court and such bail bonds shall be in force for six months.
If such accused fails to appear, the bond stand forfeited and the procedure under section 446 shall apply
which is related to the procedure for forfeiting the bail bond.(Section 437A)
Anticipatory bail (Section 438)

When a person has reason to believe that he may be arrested on an accusation of non-bailable offence,
he may apply to the High Court or the Court of Session for a necessary direction and that Court may,
direct that in the event of such arrest, he shall be released on bail.
When the High Court or the Court of Session grants bail under section 438(1), it may include such
conditions, as it may think fit, including:
(i) a condition that the person shall make himself available for interrogation by a police officer as
and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or
promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such
facts to the Court or to any police officer.
(iii) a condition that the person shall not leave India without the previous permission of the Court;
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(iv) such other condition as may be imposed under section 437(3), as if the bail were granted under
that section.
CONTINUING OFFENCES
Continuing offence means an offence which is committed for a very long period. It is neither clearly
defined in the Indian Penal Code or Cr.PC. Whether the offence is continuing one or not, it clearly
depends on its nature.
The offence which is happening and continuing again and again comes in the category of continuing
offence.
Section 472 of Cr. PC mentioned the term Continuing offence and states that in the case of a continuing
offence, a fresh period of limitation shall begin to run at every moment of the time during which the
offence continues.
IMPORTANT SECTIONS:-
SR.NO. HEAD CONTENT

1. SECTION 2(n) OFFENCE
2. SECTION 2(a) BAILABLE OFFENCE
3. SECTION 2(c) COGNIZABLE OFFENCE
4. SECTION 2(I) NON COGNIZABLE OFFENCE
5. SECTION 2(d) COMPLAINT
6. SECTION 2(g) IINQUIRY
7. SECTION 2(h) INVESTIGATION
8. SECTION 2(i) JUDICIAL PROCEEDING
9. SECTION 2(q) PLEADER
10. SECTION 2(u) PUBLIC PROSECUTER
11. SECTION 2(x) SUMMONS AND WARRANT CASES
12. CHAPTER XX SUMMONS CASES
13 CHAPTERXIX WARRANT CASES
14. CHAPTER III POWER OF COURT
15. SECTION 41 ARREST OF PERSON
16. SECTION 61 SUMMONS
17. SECTION 70 WARRANT
18. SECTION 62 SERVICE OF SUMMONS
19. FORM 2 OF 2ND FORM OF WARRANT OF ARREST
SECHEDULE
20. SECTION 82 ISSUING PROCLAMATION
21. SECTION 83 ATTACHMENT AND SALE OF PROPERTY
22. SECTION 93 SEARCH WARRANT
23. CHAPTER XXXVI LIMITATION PERIOD FOR TAKING COGNIZABLE OFFENCE
24. SECTION 260 SUMMARY TRIAL
25. SECTION 454 & 456 OFFENCE UNDER INDIAN PENAL COURT
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CHAPTER: 11
INDIAN EVIDENCE ACT,
This law applies to whole of India. This law does not
apply to court martial.
DEFINITIONS
JUDICIAL PROCEEDING
It is a proceeding in which evidences can be taken on
oath and can be verified. The proceeding under Income
Tax Act, is not judicial proceeding.
Nowadays in place of oath affidavit is given in the court to verify correctness of statement. In
affidavit a declaration is sworn or affirmed before a Competent Person [judge of the court or any
other officer of court or oath commissioner].
If the other party gives consent to the affidavit then the affidavit can be considered as evidence.
EVIDENCE – SECTION 3
It means and includes :
Statements that the court permits or are required to be made as per

the orders of the court by the witness. Such statements are called as
oral evidence.
As per section 60, oral evidences refers to a ―fact‖ which could be
seen and given by the person who saw it or a fact which could be
heard and given by the person who heard it or a fact which could be
perceived andgiven by the person who perceived it, oral evidences are
described as best evidences.
Statement of experts are also referred as oral evidences.
The documents produced for the inspection of the court, are called as documentary evidences.
The documentary evidences are classified in:
a. Primary Evidence: if the original copy of any document is presented in the court for the
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inspection of the court, it becomes primary evidence.
b. Secondary Evidence: if the original copy of any document is lost or destroyed and is not
available for inspection of the court than, certified copy or the facsimile copy or photograph or
written statements read before the court, such evidences become secondary evidences.
Rules relating to Electronic Record:
If an electronic record is printed on a paper it will be considered as computer output and it will be
considered by the court as original or primary evidence.
FACT
BHAI JO HUME DIKHTA HAI, JO HUM MAHSOOS KARTE HAI,

WAHI FACT HAI, BAKI SAB MOH MAYA HAI
Anything, state of things, relation of things which
can be perceived byour senses. [Physical fact]
A person holds an opinion when he is conscious is a
fact (psychologicalfact)
Example: Fan is revolving, students are writing,
Mr. A holds an opinion, Mr K has a reputation, all
these are facts.
Law of evidence applies both to civil as well as
criminal cases but thereis a difference :-
Civil Cases Criminal Cases
Burden of proof is the basis of Much bigger degree of

decision. assurance is registered by
Decision can be given on Unless concrete proof is available, the court

probability. does not pass the decision.
If evidence is to be described in simple way it can be said that the facts which are accepted by
the Court, become evidence.
As per Section 5, Evidences may be given of facts in issue and ofrelevant facts :
SECTION 3 : FACT IN ISSUE
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AISE FACTS JO ISSUE KA HISSA HAI,WO
HAI FACTS IN ISSUE,
EK PARTY KAHTI HAI, PAR DUSRI MANTI NAHI,

LO HO GAYA ISSUE CREATE!!
Facts in issue means:
 A fact, which itself or,
 In connection with the other facts,
 relates to existence or non existence of, or nature of any right orliability,
 of any right, liability or disability, asserted or denied in any suit or proceedings.
Example: Ram is accused of committing murder of Shyam, the following facts are available:
a. Ram had the intention to kill Shyam.

b. Shyam has not committed sucide but it is a homicide.
c. Ram Killed Shyam.
d. Weapon used for Killing Shyam was purchased by Ram, 2 days ago. All the above facts in
connection with each other have created the issue i.e death of Shyam.
e. However if Ram proves that he is a person ofunsound mind, it will create an issue of non
liability.
In simple term fact in issue means a fact which is stated by one party and denied by the other
party. Facts in issue can be also called as disputed facts.
(jin facts ke upar vivad ya jhagda hai unhe facts in issue kahte hai, aur har party apni apni baat
prove karne ke liye evidences ya facts court ke samne rakhti hai)
RELEVANT FACT & CIRCUMSTANTIAL EVIDENCE [SECTION3]
EK FACT JISKO SABIT KAR DIYA TO WHO,

EVIDENCE KAHLA SAKTA HAI
When one fact is connected with the other fact in a manner given in Indian Evidence Act, such fact
is referred as relevant fact.
Section 3 does not define the term relevant, it simply indicates, when one fact becomes
relevant to other.
Normally facts relevant to issue are those facts which are necessary to prove or disprove the fact in
issue.
For example A has committed murder of B, it‘s a fact is issue (disputed fact), now if A had the
CS CS and Only CS -
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motive to kill B as B was dating A‘s wife, A and B went together on the murder day to watch a
movie, this both facts are connected with issue (murder) so can be considered as relevant fact.
A fact may be treated as relevant fact when it is connected with issue (disputed fact) in such a
manner that the Court assumes, that the fact is relevant to issue or the controversy.
Example: If Ram has committed murder of Shyam (the issue is, whether Ram Committed murder of
Shyam) & Mohan saw it, the statement givenby Mohan will be considered as or will prove the Issue.
Example: If Mohan Saw Ram running with the blooded knife from the place where dead body of
Shyam was lying. The statement of Mohan in the Court will result in relevant fact.
Through relevant facts we prove or disprove facts in issue.
With the help of relevant facts we prove the fact in Issue.
The relevant fact can also be proved with the help of circumstantial evidences. When direct
evidences are not available then the Court may consider circumstantial evidences. Relevant facts
are proved on the basis of circumstantial evidences and circumstantial evidences are based on
presumptions.
Relevant facts are also known as facts probanda and facts in issue are known as facts probandum.
In the case of State of U.P VS Raj Narain, it was decided by the Court that all relevant facts are not
admissible by the Court.
Note: Relevancy of fact is test of admissibility.
SECTION 5: EVIDENCES MAY BE GIVEN OF FACTS ANDFACTS IN

ISSUE
Evidence may be given of every fact in issue and of such other facts that can be referred as
relevant facts. However no evidence of a fact can be given by a person who is disentitled to prove
a fact.
The person who was aware of the fact but did not state the fact in his statements made to the
court, such person will not be given a chance to prove such fact later.
LOGICAL RELEVANCY, LEGAL RELEVANCY ANDADMISSIBILITY
Logical Relevancy: If a fact is logically relevant but legally irrelevant [because it could not be
proved] then it will not be considered as a fact related to case.
For example, confession made to polic officer may be logically relevant but not legally relevant, as
section 25 of evidence act declares that it such confession before police officer can not be
considered as confession.
Legal Relevancy: A fact is legally relevant but logically irrelevant, then such fact will be
considered as a fact related to the same.
In some cases a judge may consider a fact as legally relevant if it islogically relevant.
In some cases a fact may be legally as well as logically relevant but stillit will not be considered as
evidence on the ground of public policy.
ISSUES OF FACT
In civil cases, the court has to frame ―issue‖ out of the disputed facts so in civil cases We first
consider all the disputed facts and on the basis of disputed facts the Court decides the ―issue‖.
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Fact in issue in criminal case becomes issue of fact in Civil Case.
CLASSIFICATION OF RELEVANT FACTS :
Relevant fact may be classified in the following categories:
1) Facts connected with facts to be proved.

2) Statement of the person who cannot be called witnesses.
3) Statement about the fact to be proved.
4) Statements under special circumstances.
5) How much statement is to be proved.
6) Judgment of the courts, when relevant.
7) Opinion of 3 party.
rd
8) Character of parties in civil cases.
 Two rules on basis of which law of evidence is based :
A fact that has reasonable probative value Reasonable probative value will be admitted
should beconsidered. unless they areotherwise proved.
Presumption is an inference and can be considered as evidence.
When one fact is connected with other fact and it is declared by the court then both the facts can
be considered as relevant and can not be challenged.
1. RELEVANCY OF FACT CONNECTED WITH FACT TO BEPROVED :

In the following circumstances a fact connected with other fact, if proved may be considered as
relevant :-
a) Res Geste Facts : Section 6,

AISE FACTS JO, EK HI TRANSACTION KA HISSA HAI, WAHI RES GESTE FACTS
KAHALATE HAI
These are the circumstantial facts which are the part of the transaction. These facts are the part of
same transaction. These facts are associated to the main act in such a manner that they become the part
of issue (referred as transaction or acts).
e.g. A person saw 2 ladies entering in the room and after some time a lady called ―help‖ ―help‖,
after 2 days the body of a lady was recovered from the same room. The statement of the person
who saw the lady entering can be considered as res-geste fact.
e.g. A person is accused of beating the other person with club (baseball bat), the statement given by
the bystanders (people who saw), or the surroundings of the place where the transaction took place,
can be considered as res geste fact.
A sues B for libel, the letters which are exchanged and forming part of the correspondence relating
to subject, out of which libel arose, can be considered as relevant fact.
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2. FACTS CONSTITUTING OCCASION OR OPPORTUNITY OR STATE OF THINGS FOR
OCCURRENCE OF FACT TO BE PROVED [ISSUE] : SECTION 7,
AGAR MAUKA DEK KAR MAR DIYA CHAUKA,

TO BHI KAM SE JAOGE, SAJA PAOGE
If any person had the best opportunity to commit a crime, such opportunity for occurance of the fact can
be considered as a relevant fact against such person.
e.g. 1) Only the milkman accused of murder of a women knew the fact that lady remains alone in
the house during afternoon, can be considered as a relevant fact in the case relating to urder of
that women.
e.g. 2) The marks on ground, where the issue took place can also be considered as fact.
3. MOTIVE, PREPARATION, PREVIOUS CONDUCT OR SUBSEQUENT CONDUCT :

Section 8,
There is a difference between motive and intention, motive is a reason and intention is decision.
Motive can be considered as a fact and it can be proved and if it is proved it will become a relevant
fact.
e.g. When a was committing murder of B [Saw it and after few days C‘s dead body was
recovered. A had a motive to kill C is a relevant fact, if it is proved.
Preparation by a person for a crime or a controversy can be consideredas a fact, if proved.
e.g. X purchased a poison from chemist shop and it was found in the dead body of X‘s wife.
Purchase of chemical may be considered as a fact.
e.g. Issue is, whether the given document is Will of Ram?
Facts available: Ram made an enquiry in the matters stated in the will, Ram consulted Vakils, Ram
also asked Vakil‘s to prepare the draft of will, these all facts relate to preparation of will and can
be considered as relevant fact.
4. PREVIOUS CONDUCT AND SUBSEQUENT CONDUCT :Section 8

The conduct of the party whether previous or subsequent of the accused or his agent, which
influences the issue or is influenced by the issue canbe considered as relevant fact.
Previous Conduct Subsequent Conduct
Acts before issue Acts after issue
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X threatened Y, if you stare my wife, I shall Concealing the evidences.
kill you.
Issue: Whether A killed B?
Within 3 days Y‘s dead bodywas found. Facts: After the murder of B, A absconded, A
renovated the place where murder was
X‘s threatening can beconsidered as committed, A did not co-
previous conduct operate in the police
investigations, all these facts constitute
subsequent conduct and can be considered as
relevant fact.
Issue: Whether Ram committed Murder of

Shyam?
Facts Available: There was a fight between
Ram and Shyam in relation to traffic dispute,
Ram had sent a message to Shyam, asking
Shyam to be in limits, Ram had enquired from
the Security gaurds of Shyam‘s building
relating to the time when Shyam is home
alone. All these facts are relevant fact and
can be considered as
relevant.
In case of Emperor Vs Manchan Khan, the deceased had written a letter to the police
commissioner 2 months before his murder and the letter stated that he had a danger of life from
the accused, the letter can be considered as relevant fact against the accused.
Examples:
A files a case against B for recovery of money on the ground that B had made a written promise to pay
money, In the Court B refuses to pay ans says he had never made such promise, in this case the facts
that, when the Bond is said to be made, B wanted money for particular purpose may be considered as
relevant.
A is accused of a crime. The facts that, A provided facts which establish evidence in his favour, the facts
that A destroyed or concealed evidence, the fact that a stopped witnesses from appearing in the Court,
all these facts may be considered as relevant.
The issue is, whether A has to pay rupees 10,000 to B. The facts that A asked C to lend him money, and
that D said to C in A‘s presence and hearing—―I advise you not to trust A, as he has to pay B 10,000
rupees‖, and that A went away without making any answer, are relevant facts.
The question is, whether A committed a crime. The fact that A absconded after receiving a letter giving
warning to him that inquiry was being made for the criminal of the offence, and the contents of the
letter, are relevant.
A is accused of a crime. The facts that, after the commitment of the alleged crime, he absconded, or
was in possession of property or the proceeds of property acquired by the crime, or attempted to
conceal things which were or might have been used in committing it, are relevant.
The question is, whether A was raped
The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the
circumstances under which, and the terms in which, the complaint was made, are relevant.
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The fact that, without making a complaint she said that she had been ravished is not relevant as conduct
under this Section, though it may be relevant as a dying declaration or as corroborative evidence.
the question is, whether A was robbed. The fact that, after the alleged robbery, he made a complaint
relating to the offence, the circumstances under which, and the terms in which, the complaint was made
are relevant.
The fact that he said he had been robbed without making any complaint, is not relevant, as conduct
under this section, though it may be relevant as a dying declaration or as corroborative evidence.
What is relevant under Section 8 is the particular act upon the statement and the statement and the act
must be so mixed together as to form a part of a thing observed by the witnesses and sought to be
proved.
ACTS NECESSARY TO EXPLAIN OR INTRODUCERELEVANT FACTS : Section 9,
1 2 3 4
Facts that Facts that Facts that show Facts that

supports the relevant establish identify of relation of the explain
factsor issue person in parties. /
connection withissue introduce relevant
facts
Recovery of A person was not found In case of If the violent

murder weapon from afterthe issue. defamations, bad crowd was
aperson supports the relations shouting with the
issue In the case of Surinder between theparty name of a particular
Pal Singh Vs Delhi can be person, so the voice
Administration, in this considered as of the
case the dog who was relevant fact. crowd introduces
the part of Dog Squad the identity of
of police theperson who‘s
pointed out the name was
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accused at the murder taken by the
place, the Court did not crowd.
consider the Dog‘s act Ram Convinces shyam
as relevant fact as it to breach the
did not contract that shyam
establish the identity of entered with Mohan,
the person. so Shyam breaches
the contract with
Moahn and Shyam
says Mohan that I am
breaching this
contract as Ram has
convinced me and has
given me better
offer. The statement
of Shyam explains his
conduct and can be
considered as
relevant.
A is accused of a crime.
The fact that, soon after the commitment of the crime, A absconded from his house, is relevant under
Section 8, as conduct subsequent to issue. The fact that, at the time when A left house, he had sudden
and urgent business at the place where he went, can also be considered relevant, as it explains the fact
that the left home suddenly. The details of the business for which he left are not relevant, however such
details will be relevant only to explain that business was sudden and urgent.
Amar is accused of theft and he was seen giving the stolen property to Bika, and Bika further gave the
property to his wife and Bika says to his wife that Amar wants, to keep this property with you (Bikas
wife), and you have to hide this property so Bikas statement explains the entire transaction and can be
considered relevant.
2. STATEMENTS RELATING FACT TO BE PROVED [ISSUE] : (Yaha par hum statements jo issue se
connected hai use dekenege ki relevant mana ja sakta hai ya nai)
There is a general rule that hearsay evidence is no evidence. Which means court never consider
statement of the parties if they are based on ―hear say‖.
However res geste facts even if based on hearsay are considered as relevant.
However, there are some exceptions to the above rule (hearsay evidence is no evidence):-
Que: Oral evidence must be direct in all cases. Explain this statement.
a) Admission and Confession:

Admission Confession
1) Covered under Section 1) Covered under Section

17 – 31 of Indian 24 – 30 of Indian
Evidence Act. Evidence Act.
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2) Admission is oral, documentary 2) Confession means oral, documentary,
electronic, statement that suggests or
any fact in issue or any relevant fact electronic statement relating to any
made by an accused. fact in issue or relevant fact made
by an accused before a person in
authority.
3) It can be made by accused himself or 3) Confession has to be made by the

his agent or his predecessor accused himself.
in interest.
4) Admission is always selfharming 4) Confession is against the

maker and the co-
accused.
5) In the case of Basant Singh V/s. Jacky 5) Confession has to be

Singh the court decided that voluntary.
admission made by
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Government is not relevant unless Case :Palaka Narayan SamiV/s. Emperor.
actedupon it.
It was held that a statement that frees a
person from a guilt is not a confession.
6) Admission can also be

made under compulsion.
6) There are two types of confession :
a) Judicial Confessions : The
confessions made before Judge or
a Magistrate.
b) Extra Judicial
Confession :
The confession that are made
before the police officer or
before any person authorized by
court.
7) Court never acts on the

basis of admission.
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8) Court never treats a person as guilty
on the basis of admission.
9) As per section 58, the facts
that contradict with the admission
may also be considered as relevant.
For example if a person states that he
did not meetthe deceased
before his death, but CCTV footage
suggests that he met with deceased,
Footage may be
considered as relevant.
The extra judicial confession will be valid if :-
Confession was made in presence of Police When confession was made before the police
Officer, Magistrate was also present office and through such confession the police
[confession was made outside the court]. officer received a concrete evidence relating
to
CS CS and Only CS -
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the case.
Example :-Shyam committed murder & was

arrested by Police officer before the police
officer he admitted that hecommitted murder
and threw the dead body into a well and the
gun from which murder was done with Raju.
The police officer recovered the gun from
Raju. In this case the admission made by
Shyam may amount to Extra Judicial
Confession.
The court treats a person as guilty on the basis of confession.
Features of Admission and Confession:
1) The admission may be verbal or may be contained in books, maps,reports or bills.

2) Admission may be made by the party in plaint which is signed and verified by him and it may
be used against him in the other suits also. However the court may accept some previous
statements and reject the remaining.
3) Admission also includes conceding (confirming) something against the person making the
admission.
4) Admission of gravely incriminating (agar aap kisi ke khilaf sangeen aarop lagao) act is not
confession.
5) If it appears to the Court that confession was not voluntary or if it was under threat or
pressure or if the accused was assured that he will gain any advantage by making a
confession, the Court will not consider such statement as confession.
6) In the case of Ram Khillari V/s. State of Rajasthan the court decided that, if confession is
made by a witness who was close relative of the accused and the testimony of such witness
wasreliable and truthful, such confession can be a valid confession.
7) In the case of Vinayak Shivaji Rao Pol Vs State of Maharashtra, it was decided that, the law
does not require extra judicial confession shall be corroborated (confirmed) in all the cases.
When the accused confessed to his friend that he was involved in the offence and such
confession was without any mistake and very clear, the Court will consider the confession
made by the friend of accused.
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b. Statement of the persons who cannot be called as witness [they are dead or cannot be found]:
Statements made by the person who are dead or cannot be found. Can be considered as relevant fact
if the following conditions are satisfied :
must relate to fact in issue
made in any will may be considered as relevant.
must be made in the ordinary course of business.
other person then statement
of such other person can also beconsidered as relevant fact.
must relate to cause of death.
before controversy, relating to any relationship.
declaration has to be against the maker.
that relates to a public right or custom of any place may also be considered as
relevant.
Example: Issue: Whether the road is a public road or not?
Fact: The deceased ―Gram Pradhan‖ of the village had before his death declared that the said road is
a public road, the statement of Gram Pradhan can be considered as relevant fact.
Evidences given in the judicial proceedings or before any person authorised by law may be considered
as relevant if the proceeding was between the interested parties and the opposite party was given
an opportunity to cross examine.
c. Statement made under special circumstances :
The below mentioned statements can be considers as relevant fact :
form / electronic form.

However only such entries are not sufficient to prove any fact.
made in government notifications.
E.g Issue: Whether Ram is authorised to confiscate Shyam‘s Vehicle?
Fact: Ram Produces a notification issued by the Income Tax Dept. which authorises him to
confiscate the property, will be consideredas relevant.
in maps, charts, which are sold by state on central government on agencies of central
or state government.
E.g. Issue: Whether an area comes under the jurisdiction of Collector of Mumbai?
Fact: The map issued by the Government of Maharashtra that prescribes the jurisdiction of
each collector, can be considered relevant.
in public record by government servant.
In the case of Anita Vs Atal Bihari, it was decided by the Court that the entries made in the
register of birth by the public servant will be considered as relevant.
cases only the relevant part of the book or entries or statement will be
considered as evidence and not the entire bookor entries.
made in the foreign law or book published by the foreign Government may be
Example: Issue: Whether George is illegal immigrant in India?
Facts: US Government issued a notification allowing George to provide relief in Kerla Floods
may be considered as relevant.
Note: In all the above cases only the relevant part of the book or entries or statements will be
considered as relevant and not the entirebooks or entries.
2. OPINION OF THE THIRD PARTY TO BE RELEVANT

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As a general rule the opinion of witness on any particular fact or law is always irrelevant. However there
are some exceptions to this rule. In the following cases the opinion of witness can be considered
relevant:
Opinion of experts Facts that support or are

inconsistent with the opinion
ofexpert are also relevant.
Forensi c Signatur e DNA Opinio n Handwritin g
Expert Expert Expert as to Expert
custom of
any
place
Facts that Facts that

support are inconsisten t
experts with
opinion expert‘s
opinion
Are
Are
Relevant
Relevant
The opinion of expert is supported by report. If the report of expert suggests something else but
reality is something else. In this case such consistency may also be considered as relevant fact.
Apart from the above The Indian Evidence Act, 1872 provides that, in addition to the opinions of
experts, opinion of any other person is also relevant in the following cases:
(a) Opinion as to the handwriting of a person if the person giving the opinion is acquainted with the
handwriting of the person in question. (Section 47)
(b) Opinion as to the digital signature of any person, the opinion of the Certifying Authority which
has issued the Electronic Signature Certificate. (Section 47A)
(c) Opinion as to the existence of any general right or custom if the person giving the opinion is
likely to be aware of the existence of such right or custom. (Section 48)
(d) Opinion as to usages etc. words and terms used in particular districts, if the person has special
means of knowledge on the subject. (Section 49)
(e) Opinion expressed on the existence of any relationship by persons having special means of
knowledge on the subject. (Section 50)
QUE: Opinion of experts under section 45 of the Indian Evidence Act,1872.
FACTS OF WHICH EVIDENCE CAN NOT BE GIVEN
Privileged Communication
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Evidenc e Source of Communic ation Profession al Affairs of Official
given informat ion during communica tion state Communication,
by a to a police marriage, between an
Section Section 124,
Judge or officer advocate his
Section 123,
Magistr ate: relating to client, CS Communica tion
122,
Section 121 fact & his Internal matters between officers
or relevant Protected even client. or of
fact. after unpublishe d government.
Section
divorce communica tion
Section125 126 and of
129. government.
E.g The
notification s
that are
yet to be
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published or
cabinet
papers or
notes taken by
the Govt
officials.
QUE:The ‗Privileged Communications‘ are based on Public Policy anda witness cannot be compelled
to answer the same during the evidence in the Court or before any other authority. Explain in brief.
PRESUMPTIONS
Presumptions give a prima facie idea about the case. Through presumptions the Court gets a prima
facie idea of the case. Presumptions change from circumstances to circumstances.
In the Indian Evidence Act, 1872, presumptions are no where defined, however section 4 of the Act,
refers to:
a) Conclusive Proof: Referred as irrevocable presumptions – facts ke aadhar par law ka andaza
lagana jise court presume kar chukka hai auryeh jhuthlaya nai ja sakta.
b) Shall Presume: It refers to revocable presumptions of law – kisi fact ke aadhar par law ka
andaza lagana.
c) May Presume: It refers to presumptions of fact – ek fact ke addharpar dusre fact ka andaza
lagana – revoke ho sakta hai!
Kinds of Presumptions:
a) Presumptions of Law: the Court makes an inference ofcircum
b) Presumptions of fact: Court makes inference of fact.

c) Mixed Presumption: Court makes inference of facts as well ascircumstances.
Example: Murder was committed in the room and 2 men walked out of the room, it can be
presumed that such 2 persons committed murder.
ORAL DOCUMENTARY AND CIRCUMSTANTIAL EVIDENCES
Every fact covered in this chapter has to be proved, except privileged communication. Facts
are proved through evidences
There are two types of proofs [evidence]
WITH DOCUMENTS WITHOUT DOCUMENTS
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Written Evidence Oral Evidence
Primary Secondary evidence

evidence All the facts except content of a document can
be proved by oralevidence.
If the original copy is not
If the available or has been
destroyed or lost then : Oral evidences are direct evidences and these
original copy is
produced before evidences refer to :
the
1) Certified copy of
court it documents
becomes primary 2) Facsimile copy
evidence
3) Photographs
4) Oral
statements, read
before thestatement.
If the fact could If the If the fact

be fact could could be
seen, the be heard, the perceived by
person who saw person who senses the
itmay give heard it person who
an oral perceive
evidence.
will give oral such fact will

Opinion of evidence give
persons may oral
also evidence.
be consideredas
oral
evidence
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• Rules Relating to Electronic Records :
If electronic record is printed on a paper it will be considered as Computer output and will
be considered or accepted in the courtas ―Original‖ / Primary.
• Circumstantial Evidences :
A Fact is proved through
Direct evidence Circumstantial evidence
Are the facts in issue If direct evidences are not available

then
circumstances are
considered.
Decision is given on the basis of
Oral Fact is issue Documentary
presumption and relevant facts are
also known asfactum
proved.
probandum.
Relevant fact are also known as factum

probandum.
ESTOPPEL
It means a fact which is stated once cannot be denied later on.
It is based on the principle ―Allegans contratia non-estaudiendus‖. Which means ―Contrary fact
stated by a person shall not be admitted‖.
In the case of Mohiri Biwi V/s. Dharam Das Ghosh. It was decided
that rule of estoppels will not apply when a person knows the real facts.
In the case of Biju Patnaik Tech University Vs Siaram Collage, the students appeared for the
final examinations, after declaration of the
CS CS and Only CS -
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result, the university asked the students to give additional papers to get the degree, the Court
estopped the university from taking the additional examinations.
Kinds of Estoppel
Estoppel by attestation – when a person signs a statement.
Estoppel by Contract – When a person agrees something in contract.
Constructive Estoppel – Constructive Notice (a notice which is deemed) creates estoppel.

Equitable Estoppel – Stating Something and denying later on.
Estoppel by Silence – By not taking objections also we can createestoppel.

Estoppel by Election – When you elect something you make a estoppel.
Dushyant Jain^^ ICAN CS Classes तन मन और वचन, CS म त!! -192-

CHAPTER: 12
SPECIAL COURTS, TRIBUNALS UNDER
COMPANIES ACT AND OTHER LEGISLATION
TRIBUNAL
COURTS KE UPAR BOJH HAI BAHUT JADA,
ISLIYE SARKAR NE LAYA TRIBUNALS BANANE KA IRADA
Tribunal is a quasi judicial body. It stands between the

court and the government. It discharges the functions as
quasi judicial body (Court to Nahi Par Court se kam bhi
nahi). It stands between Courts and Administrative
Bodies of Government.
(Bacchon Tribunal ek body hai jise Court jaisi powers

hoti hai ek particular law ke andar aur tribunal us law ke
hisab se faisle sunata hai)
Tribunal are created by the government as per the power granted to the government under various laws.
These tribunals are also called as Administrative Tribunals as they administer procedures under a
particular law.
The present situation demands the enforcement of rights and providing of Justice in much faster
manner, so the importance of Tribunals has increased these days.
(Bacchon Samajhiye, hare k mamla court gaya to solve hone main time lagta hai, aur har kaam agar
Sarkar ko diya to hoga hi nahi, Isliye alag alag kanunon ke andar tribunals ka zikara hota hai, inhe Sarkar
ek kannon ke tahat banati hai, aur us kanoon main inki karyashaili hoti hai)
Tribunal have the power of the court with flexibility of the government.
In the case of Virendra Kumar Satyawadi Vs. The State of Punjab, the Supreme Court explained the
difference between the Court and Tribunal. The Supreme Court said that the courts have a general
power to deal with cases of different nature but tribunal deals with cases which are covered under
special laws and it deals with such cases in a manner as stated in the special laws.
In State of Gujarat v. Gujarat Revenue Tribunal Bar Association, it was decided that Tribunals basically
deal with the cases under special laws and therefore they provide special adjudication, outside Courts.
Tribunals were not part of the original constitution, it was incorporated in the Indian Constitution by
42nd Amendment Act, 1976.
Que: Creation of Tribunals take away the powers of the Court, Comment.

ESTABLISHMENT OF NCLT AND NCLAT
Eradi Commission recommended

formation of special courts for the laws
relating to Insolvency and bankruptcy.
Courts Tribunals
Deals with the Deals with the
cases of general cases as
nature. mentioned in
special law under
which the tribunal
is created.
The tribunals can Courts are never
be party to dispute the parties to
or appeal (like dispute.
even tribunals can
file cases or
appeals before
Supreme Court or
Appeallate
Authorities)
Courts follows the The Tribunals
procedures as per make their own
the CPC, 1908 or procedures as per
CPRC, 1973. the powers given
to them as per
Special Laws
The proceedings Orders are given
in Court takes time in time bound
as they deal with manner as they
all cases. deal only with the
cases as given in
special law under
which it is
formed.
In the case of L.Chandra Kumar V Union of India, a

question was raised, whether forming of special courts and
tribunal and taking away the powers of the courts, is
Constitutional? The supreme Court decided that by
creating tribunals attempt is made to compliment the
court and the decisions passed by tribunals may always be
challenged before Supreme Court and hence the tribunals
do not take away the powers of the court and they are not
unconstitutional.
The Supreme Court stated that tribunals cannot decide the cases which are criminal in nature. The court
also stated that the case that involves substantial question of law, such cases cannot be decided by
tribunals.
In the case of State of Gujarat v. Gujarat Revenue Tribunal Bar Association, it was decided that:
a. Law under which tribunal has formed decided that whether the function of tribunal are similar to the
function of Court.

b. If there is a dispute between two parties and nature of dispute is such that, it can be decided by
statutory authority, such an authority may be called as a quasi-judicial authority, so in a situation where:
1. A statutory authority has rights under a statute (law) to do any act.
2. The order of statutory authority will affect the subject (nature) of dispute.
3. The statutory authority has to pass decision under the law.
4. The statutory authority may also be the party to dispute.
In all these cases the authority will be described as quasi judicial authority, it may have some qualities
of the Court but not all the qualities of the Court. Some powers under CPC and CRPC may be given to the
Statutory Authority but it does not have all the Judicial Powers of State (Government) So the statutory
authority can not be called as Court.
There is also a difference between tribunal and domestic tribunals, the domestic tribunals basically
regulate the behaviour, conduct and internal discipline of their members and they have powers inquiry
and passing decisions. Like Bar Council of India, ICSI, ICAI, Medical Council of India, these domestic
tribunals regulate the conduct of their members and also pass decisions the matter of behaviour,
conduct and internal discipline of members, these are also created by laws.
However the Administrative Tribunals pass decisions on all the matters under special laws.
Like Competition Commission of India passes decisions on all the matters relating to Competition.
National Company Law Tribunal
In the case of Union of India V R Gandhi, the Constitutional validity of NCLT and NCLAT was upheld by
Supreme Court by a decision on 14th May, 2015.
The decision came after a long wait of 14 years and on June 1st, 2016 NCLT and NCLAT were notified.
The NCLT exercises the powers which were exercised by:-
 Company Law Board

 High Court
 Board of Industrial and financial reconstruction.
CONSTITUTION OF NCLT
COPANIES ACT KE ANDAR TO SAB KUCH NCLT HI HAI
NCLT will have one president who will be appointed

by Central Government under section 408 of
Companies Act, 2013 + such other judicial and
technical members as considered fit by Central
Government.
CONSTITUTION OF NCLAT
One chairman appointed by Central Government+

Not exceeding 11 legal and technical members as
considered fit by Central Government
BENCHES OF TRIBUNAL

Principle bench of NCLT and NCLAT will be situated at New Delhi and other benches may be decided by
Central Government through a notification.
The powers will be exercised by benches of 2 members out of which one will be legal and other will be
technical member.
The president of the tribunal may by a general or special order, constitute benches of single member for
deciding the cases as specified in the order.
If the bench of single member believes that the case should be decided by the bench of 2 or more
members, the president himself or at the request of the bench of single member may transfer the case
to the bench of two members.
MANNER OF PASSING DECISION
Any case must be decided by vote of majority. If the members are equal on any matter, then they shall
state all the points on which they differ and such points will be given to President. The President will
refer such points to other members of NCLT. The president will pass the decision on the basis of opionion
and votes of majority of other members who heard it and also the members who first heard it.
(agar votes equal hai, to nclt ke president ke pas jao, nclt baki ke members ka opinion lega aur unka bhi
jinhone pahle matter suna tha aur majority ke aadhar par NCLT faisla dega)
ORDERS OF NCLT
DONON PARTY KO SUN NE KE BAAD,
KAR DEGA NCLT PYARA SA EK ORDER PAAS
NCLT passes its decision after providing an opportunity of being heard to both the parties.
On request made by any party within a period of 2 years from the date of passing of decision, if any
mistake in the decision is brought to the notice of NCLT, NCLT shall rectify such mistake in the decision.
However, no such amendment shall be made in respect of any order against which an appeal has been
preferred with NCLAT.
The Tribunal shall send a copy of every order passed under this section to all the parties concerned.
Any party who is not satisfied with the decision passed by NCLT may within a period of 45 days from the
date of receipt of copy of decision may make an appeal to NCLAT, however no appeal can be made
against consent orders.
If any party could not file an appeal within 45 days then, NCLAT may allow an extension of further 45
days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within
45 days.
(agar 455 din ke andar appeal nai kar paye to extra 45 days milenge agar NCLAT satisfied hai to)
NCLAT after hearing both the parties:-
Confirm Set aside Modify

(NCLT ka decision sahi hai) (NCLT ka decision cancel kar (NCLT ke decision main
do) thoda change kar do)
The decision of NCLT and the copy of decision passed by NCLAT shall be sent to each party.
If any party is not satisfied by the decision passed by NCLAT, then within a period of 60 days from the
date of receipt of decision passed by NCLAT may prefer an appeal to Supreme Court.

If any party could not file an appeal within 60 days then, Supreme Court may allow an extension of
further (maximum) 60 days, if it is satisfied that the appellant was prevented by sufficient cause from
filing the appeal within 60 days.
EXPEDITIOUS DISPOSAL OF CASE BY NCLT AND NCLAT
The NCLT and NCLAT must try to resolve the case at the earliest, the application or petition filed with
NCLT and the appeal filed with NCLAT, be tried to be disposed off (niptara hona chahiye) within a period
of 3 months from the date of filing of application or appeal.
If any application or appeal could not be decided in 3 months then the NCLT or NCLAT shall record the
reasons in writing for not disposing in 3 months, and the President of NCLT or the Chairman of NCLAT
may grant an extension for a period of maximum 90 days.
PROCEDURE TO BE FOLLOWED BY TRIBUNAL AND APPELLATE TRIBUNAL
NCLT CIVIL COURT TO NAHI, PAR CIVIL COURT SE KAM BHI NAHI
The NCLT and NCLAT shall have all the powers that are vested to Civil Court by the Code of civil
procedure 1908 in respect of the following matters:
1. Summoning (calling) and enforcing (compelling) the attendance of any person and examining him on
oath
2. Discovery and production of documents, receiving evidence on affidavits (halafnama)
3. Requesting any public record or document or a copy of such record or document from any office.
4. Issuing instructions for the examination of witnesses or documents.
5. Dismissing an application for default or deciding any case ex parte (in presence of one party only)
6. Cancelling or setting aside any order of dismissal of any application for default or any order passed by
it ex parte.
7. Any other matter which may be prescribed.
However the NCLT and NCLAT are not bound by the procedures given in CPC, 1908 that are followed by
the courts, while dealing with any of matter and NCLT and NCLAT may decide their own procedure
however they must follow the principle of natural justice.
(NCLT civil courts ke power le leta hai, par civil courts jo CPC, 1908 ke hisab se jo procedures follow
karte hai wo NCLT ko follow nai karna hai)
The order passed by NCLT and NCLAT may be enforced in the same manner as the order of the High court
is enforced and if any party makes contempt of the order of the NCLT or NCLAT, it shall be deemed that
such party has contempt the order of High Court under the Contempt of Courts Act, 1971 and the
reference to advocate general in the Contempt of Courts Act, 1971, shall be considered as a reference to
the officers as specified by Central Government.
If any party does not follow the order of NCLT or NCLAT, the NCLT or NCLAT sends its order to the court
for execution.
In case of company In case of individual

The order will be sent to the court in whose The order will be sent to the court under
jurisdiction the registered office of the whose jurisdiction the individual resides or
company is situated. carries on a business or works for gain
All the proceedings before NCLT and NCLAT shall be judicial proceedings.

The tribunal or Appellate tribunal may by general or special order delegate its power to enquiries in
relation to any case pending before it to its officers or any other person as specified in the order and to
report NCLT or NCLAT within the time prescribed in the order.
Any party in any proceedings may appear in person or through PCA, PCS, PCWA or Advocate or through
any other person.
If any company is represented by a person or any other representative before NCLT then the company
must pass a Board Resolution and authorise such person to represent such company before NCLT
+vakalatnama in form no NCLT- 12 is also required in favour of authorised representative.
The provisions of limitation Act with respect to filing of appeals and application before NCLT and NCLAT
shall apply.
PROCEDURES FOR FILING APPLICATIONS AND APPEAL BEFORE NCLT AND NCLAT
1. Applications or appeal shall be made in English language and if any other Indian Language issued a
certified copy of translation must be provided to the registrar (at the office of NCLT and NCLAT) and the
registrar after obtaining confirmation from all the parties to application, will verify the translation and if
he is satisfied with the translation he will issue a certificate. The appeal as well as application is to be
made in form No NCLT 1, along with the prescribed fees. In case of appeal before NCLAT the copy of
order which is being challenged shall be attached.
2. The application or appeal shall be fairly and legibly type written or printe or lithographed on a
standard paper.
3. It shall start with “ Before NCLT or NCLAT and BENCH………….”
4. the parties to application or appeal should be clearly described with their names, address,
occupation, age, in case of company name, CIN, address of its registered office and the law under which
it is incorporated.
5. Parties should be numbered consecutively, if any party dies during the proceedings, the legal
representative of such party will join the proceedings under the same number, if there are more
than 1 legal representative then, sub-numbers will be given.
6. The content of petition must be divided in to separate paragraphs and each paragraph must be
numbered consecutively.
7. If any new party joins the proceedings, it will be given a fresh number.
8. Every petition must state the section under which it is made.
9. If eraser or whitener is used or any kind of correction is made in the petition or appeal, it shall be
supported by initial of the authorized representative.
10. The petition or appeal may be represented by applicant, respondent or authorized representative(
the petition has to be submitted in triplicate).
11. The petition shall be accompanied by certified documents by an advocate along with its index.
12. The copy of petition shall also be served on the opposite party.
QUE:Discuss in brief the provisions for filing an appeal before the Natinoal Company Law Appellate
Tribunal (NCLAT) under the Companies Act, 2013.
CAVEAT
O BHAI TU MERE KHILAF APPLICATION YA APPEAL FILE KARNE WALA HAI,

SUN LE MAIN BHI TAIYAR HU, CAVEAT FILE KAR DI HAI MAINE COURT MAIN, TU JAB APPLICATION YA
APPEAL FILE KAREGA COURT MUJE BATAEGA KYUNIKI MAINE CAVEAT FILE KARI HAI!
Through caveat a party gives a notice to the tribunal or Appellate tribunal and to the other party by a
registered post, stating that it expects an application or appeal by the other party.
The intention of sending the caveat is to inform the other party that the caveator is ready to defend the
application or appeal by the other party.
If the other party files any application or appeal before NCLT or NCLAT after receiving the caveat the
NCLT or NCLAT will inform the caveator.
If no application or appeal is filed within a period of 90 days from the date of caveat then caveat shall
lapse.
Any person may file a caveat in triplicate (three copies) if he believes any appeal or petition or
application may be started before NCLT, by paying the prescribed fee after forwarding a copy by
registered post or serving the copy on the expected petitioner or appellant.
The caveat shall be in the presecriebd form and contain such details and information or orders or
directions, details of authority against whose orders or directions the appeal or petition or application is
being started, by the expected appellant or petitioner or applicant.
Basically caveat ke zariye ek party Court ko bolti hai ki mere khilaf agar koi application aata hai, ya
appeal hogi to muje (caveator ko bata dena)
It should contain full address of applicant (the person who files caveat), so that the appeal or petition or
application could be served (informed) before the appeal or petition or interim application is taken up by
NCLT or NCLAT.
Note:
In the foot of every petition or appeal, name and sign of authorised representative shall appear and it
shall be signed and verified by the party concerned in the manner given in NCLT Rules.
(matlab representative ko sign karna hai foot pe matlab last main aur jo main party hai jise
representative represent kar raha hai use sign karna hai jaise NCLT specify karega rules bana kar)
START OF THE PROCEEDINGS
A document not in English language which is to be used in any proceeding before the Tribunal shall be
received by the Registrar with a copy in English, which is agreed by both the parties or certified to be a
true translated copy by authorised representative engaged on behalf of parties in the case or by any
other advocate or authorised representative whether engaged in the case or not or if the advocate or
authorised representative engaged in the case authenticates such certificate or prepared by a translator
approved for the purpose by the Registrar on payment of such charges as he may order.
No hearing shall start unless all documents are in English or have been translated into English and
registrar has given a certificate.
QUE:Explain provisions for contempt and caveat under Companies Act, 2013.
Production of authorisation for and on behalf of an association
If an appeal or application or petition is be started by an association, the person or persons who sign or
verify the appeal or application or petition, shall produce along with such application, for verification by
the Registrar, a true copy of the resolution of the association authorising such person for filing such
application.
(agar kisi association ke behalf par koi dusra aadmi case file karta hai to use proof fena chahiye ki wo
authorised hai)

However the Registrar may at any time call, the party to produce such further materials as he considers
fit for satisfying himself about due authorization.
It shall include the list of members for whose benefit the proceedings are instituted.
INTERLOCUTORY APPLICATION
If any party wants any kind of relief during the time when any proceeding is pending before NCLT or
NCLAT, such party may make an interlocutory application.
The interlocutory application may be made for:-
Stay of the case Condonation of delay

Exemption from Injunction
production of any
document
To pass interlocutory order is purely a matter of discretion for NCLT or NCLAT and it cannot be
compelled to pass interlocutory orders.
RIGHTS OF PARTY TO APPEAR BEFORE THE TRIBUNAL
1. The authorized representative shall file a vakalatnama in form no NCLT- 12
2. The central government, ROC, regional director or the liquidator may on its behalf authorize any
officer who is not below the rank of Junior Time Scale or company prosecutor (appointed by
Governement who represents befor the NCLT and basically an advocate who can appear in civil as well as
criminal courts), to represent it before the NCLT or NCLAT.
3. During the proceedings the NCLT or NCLAT may ask information about the company from the
concerned ROC.
4. During any proceedings before the NCLT, NCLT for the purpose of its knowledge, call the Registrar of
Companies to submit information on the affairs of the company on the basis of information available in
the MCA21 portal. Reasons for such directions shall be recorded in writing by NCLT
5. There shall be no audio or video recording of the Bench proceedings by the parties or their authorised
representatives.
SPECIAL COURT
YEH EK TARAH KA CRIMINAL COURT HAI,
AUR JAIL TO YAHI BEJTA HAI COMPANIES ACT KE ANDAR OFFENCES MAIN
Section 435 of Companies Act, 2013 authorises the Central Government to create or designate existing
courts as special courts by a notification in the official gazette.
The special court shall consist of:
Single judge who will be a session judge or additional session judge (for trying the offences which are
punishable with imprisonment of 2 years or more)
AND
Metropolitian magistrate or judicial magistrate of first class to be the judge of special courts for trying
offences which are punishable for less than 2 years.
The Central Government will appoint the above Judge and Magistrates with the consent of Chief Justice
of High Court of the concerned state for which the special courts are created.

(kul milakar 2 tarah ke special courts har state main honge ek session judge wala aur ek magistrate wala,
jaha saja 2 saal ya us se upar hai wo session judge wale ke pas jaega aur aisa case jaha saja 2 sal se kam
hai wo magistrate ke pas jaega)
OFFENCE TRIABLE BY SPECIAL COURTS
a. All the offences as specified in section 435(1) of Companies Act, 2013
b. When the judicial magistrate comes to know that any offence has taken place under the Act and the
offender is brought before the judicial magistrate, the judicial magistrate may order for detention of
such offender for 15 days and the executive magistrate may order for detention of the offender for 7
days.
c. If any accused is braught before the magistrate in respect of an offence under the Companies Act, the
Magistrate may pass orger for detention of such person, and if the judicial or executive magistrate
believes that the detention of 15 days or 7 days of the offender is not necessary, then such case shall be
forwarded to special courts.
(agar kisi aaropi ko magistrate ke samne laya jata hai to judicial magistrate use 15 days ke liye aur
executive magistrate use maximum 7 days ke liye detain kar sakte hai aur unhe agar lagta hai ki 15 ya 7
days ka detention jaroori nai hai to wo use directly chodenge nai, us case of sessions judge ke pas
forward karenge)
d. The special court shall be a criminal court and shall have all the power as vested in the criminal court
by the Code of Criminal Procedure.
e. If any offence does not involve punishment more than 3 years then such offence may be tried through
summary trial (resolving a case in fast track manner) by the special courts.
f. Under summary trial maximum imprisonment can be given for 1 year.
g. If the special court believes that the case can not be tried summarily, then the special court may
record reasons in writing and can try such case through normal procedure.
POWERS OF NCLT
1.To allow certain companies or body corporate to have a different financial year.
2.NCLT can approve issue of further redeemable preference shares when a company is unable to redeem
its existing unredeemed preference shares or to pay dividend thereon.
3.To dismiss appeal against refusal to register transfer and transmission of shares OR to direct
rectification of register and payment of damages by company.
4.On an application by the company, NCLT may allow further time to the company to repay the amount
of deposit or part thereof and the interest payable.
5.The Tribunal may direct that inspection of minute book of general meeting be given to a member.
6.To sanction utilization of IEPF for reimbursement of legal expenses incurred on class action suits by
members, debentures or depositors.
7.Where NCLT is satisfied that the Auditor has acted in a fraudulent manner, it may order that the
Auditor may be changed.
8.Regarding removal of director, NCLT may order that representation from the director need not be sent
to the members and nor read at the meeting.
9.To order investigation of ownership of Company.
10.To impose restrictions in connection with securities.

11.To entertain petition for winding up of a Company or Body Corporate in pursuance of Inspector‘s
report.
12.To dispense with calling of meeting of members/ creditors for approving compromiseor arrangement.
13.The Tribunal can restrict on the transfer or allotment of the shares of the company.
14.In case of termination or modification of certain agreements by the Company with managing directors
or other directors, leave be granted by the NCLT.
15.To wind up a company the name of which has been struck off by registrar fromRegister of Companies.
16. Power to punish for contempt: The NCLT shall have the same jurisdiction, powers and authority in
respect of contempt of themselves as a High Court has and may exercise, for the purpose, the powers
under the provisions of the Contempt of Courts Act, 1971
QUE:Explain the powers of Special Courts for offences triable by it under Special Courts, Tribunal under
Companies and other legislations.
Question and Answers
Summary Notes for Special Courts and Tribunals
1) Tribunals are quasi judicial body that are formed under special powers.
2) Tribunals are created by central /state government or any other authority as per the powers given to
the government or the authority by the special laws .
3) Under the provisions of companies act, the NCLT and NCLAT have been formed as Tribunals to deal
with various cases under companies act.
4)Many times cases were filed in the Supreme court and High court stating that the NCLT and NCLAT
are constitutionally invalid as they take away the powers of the court .
5)But the Supreme court has always upheld the validity of NCLT and NCLAT on the following grounds :
a) NCLT and NCLAT cannot pass criminal punishments
b) The decisions of NCLT and NCLAT can always be reviewed by the Supreme court .
6) NCLT is vested with the powers of civil court and can decide its own procedure for deciding the cases.
7) The principle bench of NCLT and NCLAT is located at Delhi ,however the Central government by a
notification may establish the benches of NCLT and NCLAT at other places.
8) The cases before NCLT and the appeals before NCLAT are decided on the vote of majority .
9) If the members of benches of NCLT are equal on any matter then they may give their opinion to the
President of NCLT or Chairperson of NCLAT and the matter is then decided by them on the basis of
opinions of other members of NCLT and NCLAT .
10) NCLT and NCLAT decisions can also be enforced by Civil Courts .
11) If any party is not satisfied by the decision of NCLT then within 45 days of receiving the decision of
NCLT such party can file an appeal by NCLAT and if any party is not satisfied by the decision of NCLAT
then within 60 days of receiving the decision of NCLAT such party can appeal to Supreme Court.

12) Before NCLT and NCLAT the parties can represent themselves or can be represented by PCA, PCS,
PCMA /Advocate /any other person .
13)To commence the case before the NCLT or to file appeal before NCLAT and application /appeal has
to be given in form NCLT -1 in English language or if any other language is used then certified copy of
translation into English language has to be provided.
14) Within 3 months of filing the case the NCLT must dispose off the case or NCLAT must dispose off the
case.
15) The President of NCLT or Chairman of NCLAT may grant an extension of 90 days by recording the
reasons in writing
16) If any party wants any relief during the proceeding of the case by NCLT then such party can give
interlocutory application.
17) Under section 435 of companies act to try the criminal offence with companies the Central
government by notification in official gazette create / designate the existing criminal courts or special
courts.
18) The special court will only have one Judge who will be the session Judge /additional session judge
with the consent of chief justice of the High court of state and Central Government can also designate
the metropolitian magistrate or the magistrate of first class as the judge of special court.
19) Through Caveat a party informs the other party and the court that it expects an appeal /application
by the other party.

CHAPTER: 13
ARBITRATION & CONCILIATION
INTRODUCTION
COURT KE BAHAR JAKAR,
PYAR MOHABBAT SE JHAGDA SULJHANA
Arbitration is a procedure of settling a dispute

related to civil matters (business matters).
Arbitration and Conciliation Act was passed in the
year 1996, to promote the process of Arbitration &
also compelling the parties to follow the decision
passed by an arbitrator.
Our Arbitration & Conciliation Law is based on

UNCITRAL, model law on International Commercial
Arbitration. Arbitration has helped in receiving
foreign investments by the country.
UNCITRAL
This is a core legal body of the United Nations system in

the field of international trade law. It is a legal body with
universal membership specializing in commercial law
reform worldwide for over 40 years. UNCITRAL's business
is the modernization and harmonization of rules on
international business.
IMPORTANT DEFINITIONS
Arbitration: Section 2(1) (a) of the Act, defines the term

―arbitration‖ as to mean any arbitration whether or not administered by a permanent arbitral
institution.
Which basically means, settlement of dispute through third party, without following the normal course of
settling the dispute, by approaching the court.
Through arbitration, We settle the civil disputes between the parties. However the disputes given in
section 145 of Criminal Procedure Code, relating to ―possession‖ may be settled through arbitration.
ARBITRATOR
YAHI HAI WO INSAN, JO AAPKA JHAGADA SULJHAEGA,

AUR BANAEGA AAP KI LIFE AASAN

1) He is a person who is appointed to resolve the disputes between the parties.
2) The appointment of arbitrator is complete
when he accepts the appointment. There are no
qualifications prescribed in the Act for
appointment of an arbitrator. Both the parties, by
an agreement, can appoint an arbitrator.
3) Arbitrator should be an independent
person.
4) He must not have any interest in the
dispute.
5) He must be impartial.
6) He must disclose his interest, if any, on or
before his appointment.
The parties may appoint whomsoever they please to arbitrate on their dispute. Usually the parties
themselves appoint the arbitrator or arbitrators.
In certain cases, the Court can appoint an arbitrator or umpire. The parties to an arbitration agreement
may agree that the dispute shall be referred to a particular arbitrator or to the arbitrator designated by
any person or by any person who holds any particular office.
ARBITRAL TRIBUNAL
When more than one arbitrator is appointed, such panel

or group of arbitrators becomes arbitral tribunal.
ARBITRAL AWARD: Section 2(1)(c)
It means a judgement or an order passed by an arbitrator

or arbitral tribunal.
Arbitral award is the decision of arbitrator or of arbitral

tribunal.
CHARACTERISTICS OF AN ARBITRAL AWARD – Section 31
ARBITRATOR KE DWARA DIYA GAYA FIASLA,

ARBITRAL AWARD KAHLATA HAI!
1) Arbitral award should be in writing on the stamp paper. The award should be signed by all the
members of arbitral tribunal.
2) Signature of award by majority of members can
be taken as sufficient, in case the reason for omission of
signatures of remaining members is provided.
3) The arbitral tribunal should also give reasons for
passing an order / award.
4) However, in following 2 cases reasons are not
required :
a) If parties had agreed for non-providing of reasons
at the time of entering into agreement.
b) Where the award has been passed with mutual
consent of the parties.
5) Date of passing the award
6) Place of passing the award.
7) The award may contain a provision of interest.
Example: Bajaj should pay to Kawasaki a sum of Rs. 15 Crore for usage of technology for 4 years and
if Bajaj could not pay it within 2 months, it will be liable to pay interest @ rate of 12% p.a.
In case the arbitral tribunal does not specify the rate of interest, it shall be 2% higher than the current
rate of interest.

8) The award may also include decisions and directions of the arbitrator regarding the cost of
thearbitration.
9) After the award is made, a signed copy should be delivered to each party for appropriate action like
implementation or recourse against arbitral award.
10) The arbitral tribunal may also pass an interim award during the arbitral proceedings. The interim
award is also referred as ―partial award‖.
QUE:- Explain the basic features of Arbitral Award under the Arbitration and Conciliation Act, 1996.
LEGAL REPRESENTATIVE – 2(1) (g)
This word has been defined in the same manner as it is defined under the provisions of Code of Civil
Procedure.
It means the person who represent the estate of deceased

person, or who handles the assets of deceased person or who
represents the deceased person in the capacity of
representative.
It also includes the executers or officers appointed by the

Court or the person who has taken responsibilities & duties of
the executors. Hairs in law are also considered as Legal
Representative.
The term legal representative is defined because section 40

clearly states that the arbitration agreement is not discharged
by death of any party to the arbitration.
AD HOC ARBITRATION
An arbitration in which the parties themselves make an agreement, appoint arbitrator & resolve the
dispute without administrative support or without
the help of any arbitral institution. This kind of
arbitration is called as ad hoc arbitration.
It can only be successful if it is done in good faith,

mutual respect & in the spirit of co-operation.
If properly structured ad hoc arbitration is less

expensive & fast. A distinct disadvantage of this
approach is that its effectiveness depends on the
willingness of the parties.
INTERNATIONAL COMMERCIAL ARBITRATION
ICA means setting the dispute outside the court &

the dispute relates to any business and
commercial transaction arising out of a legal
relationship between two / more parties and at
least one of the parties is:
a) An individual who is national of, or habitually

resident in, any country other than India, or

b) A body Corporate which is incorporated in any country other than in India, or
c) Government of foreign Country, or
d) An association of persons or body of individuals whose central management and control is exercised in
any country other than india.
Mainly, the disputes related to international transactions are settled under WTO dispute resolution
process.
COURT
Beta court hame kaam aata hai jab hamare arbitration procedure main kuch gadbad hai ya koi party
arbitrator ke faisle se khush nai hai, is case main parties court ja sakti hai, normal arbitration ke
case main court ek district court ke sath sath high court bhi ho sakta hai agar wo court arbitration
wale dispute ko entertain kar sakta agar parties ke beech main arbitration nai hota. Us ke bad
internation commercial arbitration main court ka matlab high court hoga!
(i) in the case of an arbitration other than (ii) in the case of international commercial
international commercial arbitration, the principal arbitration, the High Court in exercise of its
Civil Court of original jurisdiction in a district, and ordinary original civil jurisdiction, having
includes the High Court in exercise of its ordinary jurisdiction to decide the questions forming the
original civil jurisdiction, having jurisdiction to subject-matter of the arbitration if the same had
decide the questions forming the subject-matter of been the subject-matter of a suit.
the arbitration if the same had been the subject-
matter of a suit,
But does not include any civil court of a grade
inferior to such principal Civil Court, or any Court
of Small Causes;
ARBITRATION AGREEMENT: SECTION 7
It means an agreement between the parties to refer

their dispute to an arbitrator or an agreement by which
parties agree to resolve their dispute through arbitration
procedure.
1) It must be in written & signed form.

2) Arbitration agreement can be separately entered
into by the parties or it can be included as a separate
clause into any other business agreement.
3) Shall considered to be in writing if it is in the
form of letter, a paper signed by the parties or in the
form of statement of claims &defense between the
parties.
4) Certain disputes related to matrimonial issue,
criminal matters, questions related to guardianship, about validity of a will cannot be solved through
arbitration.
5) It should contain date of agreement, place of agreement and the name of arbitrator if any.
As per Section 31(8) the cost of arbitration shall be fixed by the arbitral tribunal in accordance with
section 31A.
In the case of Rukmanibai Gupta Vs Collector, it was decided that there is no particular format of the
arbitration agreement, it just needs to be in writing and signed by the parties or their authorised agents.
In the case of Oil Production Association Vs United World Trade Association, the parties in their
business agreement agreed that, arbitration if any, will be done by the International Chamber of
Commerce (ICC) Rules, the Court decided that, it is a valid arbitration agreement.

An arbitration clause in the agreement does not attract separate stamp duty.
POWER TO REFER PARTIES TO ARBITRATION WHERE THERE IS AN ARBITRATION AGREEMENT
ARBITRARION AGREEMENT TO KAR LIYA HAI,
FIR BHI COURT JANE KA DIL KAR RAHA HAI!
As per section 8 of Arbitration and Conciliation Act, 1996,

if any party approaches the Court for resolving the dispute
which is a subject matter of arbitration agreement, on or
before the date of submission of statements to the
Arbitrator then, in spite of any judgment, decree or order
of the Supreme Court or any Court, refer the parties to
arbitration unless the Court is satisfied that there is no
valid arbitration agreement.
The party who is applying for relief from the Court shall
submit original agreement with the application or the duly
certified copy of the agreement.
If the party is not able to produce the certified copy of the arbitration agreement as the same is not
provided by the other party in this case the party may produce the copy of agreement and request the
Court to order the other party to produce original agreement or its certified copy before the Court.
Even if an application has been made in the Court, and the application is pending before the Court,
arbitration may be commenced or continued and an arbitral award made.
In the case of Aman Finance Corporation Vs, Nitesh Kumar Sinha, the buyer of a truck on hire purchase
basis, defaulted in payment of instalments and the hire purchase agreement contained the clause of
arbitration and in spite of this the buyer approached the Court, when his vehicle was seized by the
financer, the Court decided that the Suit is not maintainable as there is a valid arbitration agreement.
Beta kul milakar agar 2 parties ke beech main arbitration agreement hai to Court section 8 ke andar
parties ko order de sakta hai ki aap apna dispute arbitration ke zariye resolve kigiye, lekin Court aisa
order tabhi dega jab court is cheez se satisfied hai ki parties ke beech main ek valid arbitration
agreement hai!
INTERIM MEASURES BY THE COURT: Section 9
1) Any party can before or during the arbitral proceeding or after the making of arbitral award and
before the enforcement of arbitral award, can approach the court for interim measures by the court.
sabse pahle parties interim relief arbitrator ya arbitral tribunal se mangti hai par agar wo relief
tribunal na de to apan section 9 ke andar court ja sakte hai aur court case ko dekne ke bad apni iccha
ke aadhar par interim relief de sakta hai!
2) This provision is based on UNCITRAL model
law on international commercial arbitration.
3) The parties can approach the court for
getting any interim relief. E.g. :
a) Appointment of guardian for a minor or a lunatic
person,
b) Protection of any assets,
c) Injunctions.
d) Appointing any receiver
e) Deposit of amount in dispute
f) The detention, preservation or inspection of any property or thing which is the subject-matter
ofthe dispute in arbitration.

The power to grant interim measure is purely discretionary power of the court.
Further, where, before the commencement of the arbitral proceedings, a Court passes an order for any
interim measure of protection (as given above in points a to f) the arbitral proceedings shall be
commenced within a period of ninety days from the date of such order or within such further time as the
Court may determine.
Once the arbitral tribunal has been constituted, the Court shall not entertain an application for interim
measure, unless the Court finds that circumstances exists which may not render the remedy provided
under section 17 effective (section 17 deals with interim reliefs by the Arbitrator).
―Iska matlab yeh hua pahle aap arbitrator se mango interim relief agar won a de to fir Court jao‖
In the case of NPEC India Ltd Vs Sundaram Finance Limited, it was decided that relief under section 9
of the Act can not be granted unless some proceeding is pending under Arbitration and Conciliation Act,
1996.
QUE: Explain the provisions for obtaining interim relief from Court, when there exists arbitration
agreement among parties
NUMBER OF ARBITRATORS – Section 10
If more than one arbitrator is appointed to resolve the disputes then such number of arbitrators has to
be odd in number.
If more than one arbitrator could not be appointed, the arbitration tribunal shall consist of only one
arbitrator.
MMTC Limited vs. Sterlite Industries Limited
However section 7 of the act is silent on the part of mentioning number of arbitrator in the arbitration
agreement & hence the arbitration agreement will not be treated as invalid even if it specifies the even
number of arbitrator.
APPOINTMENT OF ARBITRATOR
Section 11 of Arbitration and Conciliation Act, 1996

contains the procedure regarding appointment of
Arbitrator.
Parties khud se decide kar sakti hai arbitrator appoint

karne ka tareeka agreement main, ya fir parties yeh
bhi kah sakti hai ki wo ek ek arbitrator appoint
karnegi aur wo arbitrators teesra arbitrator appoint
karengi, agar arbitrator in tareekon se appoint nai ho
saka to koi bhi party arbitral institution jise high
court ya supreme court ne designate kiya hai us ke
pas ja sakti hai arbitrator ke appointment ke liye,
lekin agar agreement main koi aur tareek likha hai to
arbitral institution ke pas jane ki jarrorat nai hai!
Agar koi arbitral institution maujud nai hai to Chief Justice of High Court, panel of arbitrator appoint kar
dega jo arbitral institution ke function nibh agar ek party ke request par dusri party 30 days ke andar
arbitrator appoint karne ke liye taiyar nai hoti ya 2 arbitrator 30 din ke andar teesra arbitrator appoint
nai kar pate to is case main arbitral institution arbitrator appoint kar sakti hai, arbitrator ko appoint
karne ka application 60 days main nipat jana chahiye.
 The Arbitrator may belong to any Country. However the parties may in arbitration agreement provide
that the arbitrator shall not belong to any specific country.

 The parties may decide the procedure regarding appointment of arbitrator. The parties may also
agree that they will be appointing one arbitrator each and the appointed arbitrator will appoint the
third arbitrator to act as umpire.
 If the parties fail to appoint the arbitrator as per the procedure mentioned in arbitration agreement
or a person does not act as arbitrator as per the procedure mentioned in the agreement or if 2
arbitrators fails to appoint the third arbitrator, in this case a party may request the Arbitral
Institutions designated by High Court or Supreme Court to take steps to appoint the arbitrator,
however this process will not apply when arbitration agreement provides any other matter.
 In case where no graded arbitral institutions are available, the Chief Justice of the concerned High
Court may maintain a panel of arbitrators for discharging the functions and duties of arbitral
institutions.
 The parties may also agree that they will be appointing one arbitrator each, however in this case
arbitrators appointed by the parties shall appoint the third arbitrator.
 In case a party fails to appoint arbitrator within 30 days of the request from the other party or if
arbitrator fails to appoint the third arbitrator within 30 days of their appointment, in both of these
cases, the arbitrator shall be appointed on the request of the party by Arbitral Institutions
designated by High Court or Supreme Court.
 When such request is made to Arbitral Institutions designated by High Court or Supreme Court will
check whether there is an arbitration agreement or not.
 The decision of appointment of arbitrator by Arbitral Institutions designated by High Court or
Supreme Court shall be final.
 Before appointing any person as arbitrator the Arbitral Institutions designated by High Court or
Supreme Court, may obtain disclosures from such arbitrator regarding his qualification or any other
relevant information.
 In the case of appointment of sole or third arbitrator in an international commercial arbitration, the
arbitral institution designated by the Supreme Court may appoint an arbitrator of a nationality other
than the nationalities of the parties where the parties belong to different nationalities.
 When the request has been made to Supreme Court or High Court to appoint arbitrator, the Supreme
Court or High Court shall try to dispose of the application within a period of 60 days from the date of
service of notice on the opposite party.
 The High court may make rules for payment of fees to arbitrator.
 The arbitrator, the arbitral institutions and the parties shall maintain confidentiality of information
relating to arbitral proceedings and also protect the arbitrator or arbitrators from any suit or other
legal proceedings for any action or omission done in good faith in the course of arbitration
proceedings.
 Section 11(14) states that the arbitral institution shall determine the fees of the arbitral tribunal and
the manner of its payment to the arbitral tribunal subject to the rates specified in the Fourth
Schedule.
 It may be noted that Section 11(14) shall not apply to international commercial arbitration and in
arbitrations (other than international commercial arbitration) where parties have agreed for
determination of fees as per the rules of an arbitral institution.
The organizations such as Indian Council of Arbitration, International Center for Alternate Dispute
Resolution etc. help the parties in resolving the dispute through arbitration.
In the case of Punjab Agricultural University Vs. Associates Construction, it was decided that, if the
Arbitration Agreement contained the name of arbitrator than the Court must appoint the same person as
the arbitrator, however if such person refuses to act as arbitrator or if the arbitrator fails to act as
arbitrator than the Court can appoint some other person as arbitrator.
In the case of ACC Limited Vs Global Cements Ltd, the Court decided that, survival of the arbitration
agreement post death of named arbitrator depends upon, the intention of the parties.
GROUNDS FOR CHALLENGE OF APPOINTMENT OF ARBITRATOR: SECTION 12

When a person is approached for his appointment as
arbitrator, he shall disclose his present or past interest or
relationship with the parties or any interest in the subject
matter of the dispute and the circumstances which may
affect his devotion of sufficient time to the process of
arbitration due to which he will not be able to complete
the process of arbitration in 12 months.
If any interest of arbitrator arises during the process of

arbitration the arbitrator shall disclose his interest to the
parties.
The appointment of arbitrator can be challenged on the

following grounds as provided under the Act:
a) Independence or impartiality is doubtful.
b) He does not have the qualification as agreed by the Parties.
A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only
for reason, of which he becomes aware after the appointment has been made.
If the relationship of a person with the parties or the representative of the parties falls under the
categories as described under schedule VII, such person shall be ineligible to be appointed as arbitrator,
irrespective of any contrary agreement between the parties.
However the parties by an agreement can waive this ineligibility if this ineligibility arises after arising of
dispute.
In the case of International Airports Authority of India Vs KD Bali, it was decided that, in case the
arbitrator happens to be the employees of one of the parties, it can not be said that he is partial.
CHALLENGE PROCEDURE – Section 13
1) The parties are free to decide a procedure to challenge the arbitrator.

2) The party who wants to challenge the appointment of arbitrator shall, within 15 days of becoming
aware of constitution of arbitral tribunal or after becoming aware of any of the grounds for
challenge as given in section 12, write to the arbitrator with reasons for his removal.
Challenge Successful Challenge Unsuccessful
 Then arbitrator  Then arbitrator continues.

resigns.  In this case all the previous
 All the previous decision given By the
arbitrator will remain valid.
decisions will
 The dissatisfied parties can
become invalid.
Approach the court, for
setting aside the award under
section 34 of the Act.
If the other party has also agreed on the challenge than the arbitrator may be removed. But if the
arbitrator neither himself resigns nor the other party agrees to the challenge than the arbitration
tribunal shall decide the question of challenge.
FAILURE / IMPOSSIBILITY TO ACT AS AN ARBITRATOR: Section 14
1. The mandate of an arbitrator shall terminate and he shall be substituted by the other if,
a. The arbitrator becomes disqualified as to perform his functions.
b. he himself resigns from his office or both the parties agree to terminate him.
2. If the controversy remains on disqualification of the arbitrator and the parties do not reach to a
consensus than any party may approach the Court.
SUBSTITUTION – Section 15
The parties shall substitute an arbitrator as per the rules which were applicable to the arbitrator being
replaced.
On the following grounds, the Arbitrator will be replaced.
If arbitrator withdraws
from office by himself.
If he becomes of unsound
mind / incapacitated.
If the parties remove him.
As per section 15, If parties do not agree otherwise, an order or ruling of the arbitral tribunal made prior
to the replacement of an arbitrator under this Section shall not be invalid solely because there has been
a change in the composition of the arbitral tribunal.
Note: If the arbitrator is substituted, the newly appointed arbitrator can decide whether to restart the
proceeding or to continue the proceeding.
COMPETENCE OF ARBITRAL TRIBUNAL TO RULE ON ITS JURISDICTION – Section 16
AGAR APNI AUKAR KAR RAHA HAI AT CROSS,
BATA DO AT, KO AUR NIKAL DO APNI BHADAS!

Yeh section basically arbitrator ko kuch powers deta
hai jaise ki agar arbitration agreement ki validiye pe
koi doubt hai to arbitrator faisla de sakta hai +
arbitrator yah bhi kah sakta hai ki bhale hi agreement
invalid hai par jo arbitration clause hai agreement
main wo valid hai + agar koi party kahna chahti hai ki
yah particular power arbitrator ke pas nai hai to use
apna sdefence statement file karne ke time par
kahna chahiye par arbitrator use bad main bhi allow
kar sakta hai, aur bhale hi aap ne arbitrator ko
appoint karwaya tha aap us ke jurisdiction par
question utha sakte ho!
The jurisdiction of arbitral tribunal is decided by the

parties through arbitration agreement. Jurisidiction of arbitral tribunal means the matters on which the
arbitral tribunal can pass decision.
As per section 16 the Arbitral Tribunal may rule its own jurisdiction including the power to decide
whether the arbitral agreement is valid or not or whether the objections raised under the arbitration
agreement are valid or not.
The arbitration tribunal may also order that the arbitration clause in the business contract shall be
treated as a separate arbitration agreement and in case the business contract is void the arbitral tribunal
may order that the arbitration clause shall not be affected due to invalidity of business contract.
If any party wants to raise question on the jurisdiction of arbitral tribunal then it must do so before
submitting its statement of defence and a party shall not be stopped from raising such questing just on
the ground that it had participated in the appointment of arbitrator.
However the arbitral tribunal may also accept delayed applications if it considers it to be justified.
A request that the arbitral tribunal is exceeding its jurisdiction, shall be raised as soon as such matter is
raised in the arbitral proceedings. H!owever the arbitral tribunal may also accept delayed applications if
it considers it to be justified.
The arbitral tribunal will decide on the request or plea of the party, as to whether to continue or not,
the arbitral proceedings.
The dissatisfied party can approach the Court under section 34 of the Act.
In the case of Ispat Engineering Vs SAIL, it was decided that the arbitrator has no authority or
jurisdiction beyond what is stated in the terms of arbitration agreement.
In the case of Everest Holdings Limited Vs Shyam Kumar Shrivastava, it was decided by the Court that
the Arbitration Tribunal does not have the power to order for winding up of the Company as .this powers
is given to the Court or NCLT, however the Tribunal can decide the question of, whether the Company is
operational or not.
INTERIM MEASURES ORDERED BY ARBITRAL TRIBUNAL: SECTION 17
1) At any time during the arbitral proceedings or at any time after passing of the arbitral award but
before its enformcement, the Arbitral Tribunal can pass any interim measures to prevent any
injustice happening to a party.
2) Interim measures can be passed in the form of any interim award.
3) Interim measure will be valid until final measure is passed.
Any party can before or during the arbitral proceeding or before the enforcement of arbitral award, can
approach the Arbitral Tribunal for interim measures by Arbitral Tribunal.
This provision is based on UNCITRAL model law on international commercial arbitration.

4) The parties can approach the Arbitral Tribunal for getting any interim relief, such as:
a) Appointment of guardian for a minor or a lunatic person,
c) Injunctions.
f) The detention, preservation or inspection of any property or thing which is the subject-matter
ofthe dispute in arbitration.
Any order issued by the arbitral tribunal under this section shall be deemed to be an order of the Court
for all purposes and shall be enforceable under the Code of Civil Procedure, 1908, in the same manner as
if it were an order of the Court.
Arbitral award enforce hone ke pahle aap kabhi bhi arbitrator se interim relief mang sakte hai!
EQUAL TREATMENT OF PARTIES – Section 18
According to Section 18 of the Act, the parties

shall be, treated with equality and each party
shall be given a full opportunity to present his
case.
DETERMINATION OF RULES OF PROCEDURE –

Section 19
Section 19 deals with determination of rules of

procedure. It says that:
1. The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 or the Indian Evidence
Act, 1872
2. The parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its
proceedings.
3. Failing any agreement, the arbitral tribunal may, conduct the proceedings in the manner it considers
appropriate.
4. The power of the arbitral tribunal includes the power to determine the admissibility, relevance,
materiality and weight of' any evidence
Award of interest:
If the award relates to payment of money by a party to another party, such award may also contain the
rate of interest to be paid by a party to the another party in case the payment is not paid within
stipulated time.
If the rate of interest is not decided by the arbitrator, then it will be paid at the rate of 18% p.a.
ARBITRAL PROCEEDING
 2 parties
 Disputes,
 Arbitration,
 Arbitration agreement,
 Appointment of arbitrator,
 Decide the place and commencement of arbitration,
SECTION 20 – PLACCE OF ARBITRATION
Place can be decided by the parties.

If parties fail to decide the place, the arbitral tribunal shall decide the place as well after considering
the cercumstances of the case and the convenience of the parties.
COMMENCEMENT OF ARBITRATION – Section 21
The date of commencement of arbitration is important for determining the period of limitation. If the
parties do not agree on any date for commencement of arbitration than the date on which request is
received by one party from other to make a reference of the dispute arbitration shall be considered as
the date for commencement of the period of arbitration.
Jis din ek party ki request dusri party ko milti hai, jis main yeh kaha gaya hai ki dispute arbitration ke
zariye resolve hoga, usi din se arbitration praoceedings shuru mani jayenge!
LANGUAGE OF ARBITRATION – Section 22
Parties can decide the language and if no language is decided, the Arbitral Tribunal decides the
language. The arbitral tribunal also decides the language of written statement and the award if arbitral
agreement does not specify any language.
ARBITRATION PROCEDURE : Section 23
Within the period of time agreed upon by

the parties or determined by the arbitral
tribunal, the claimant shall state the facts
supporting his claim, the points at issue and
the relief or remedy sought, and the
respondent shall state his defence in respect
of these particulars, unless the parties have
otherwise agreed as to the required
elements of those statements.
The parties may submit with their

statements all documents they consider to
be relevant or may add a reference to the
documents or other evidence they will
submit.
The respondent, in support of his case, may

also submit a counter claim or plead a set -off, which shall be adjudicated upon by the arbitral tribunal,
if such counterclaim or set-off falls within the scope of the arbitration agreement.
If parties have not agreed anything else, either party may amend or supplement his claim or defence
during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to
allow the amendment or supplement having regard to the delay in making it.
Statement of claim and defence under this section shall be completed within a period of six months from
the date the arbitrator or all the arbitrators, as the case may be, received notice, in writing, of their
appointment.
HEARINGS AND WRITTEN PROCEEDINGS: Section 24
Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings
for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on
the basis of documents and other materials.
The arbitral tribunal shall hold oral hearings, at an appropriate stage of the proceedings, on a request by
a party, unless the parties have agreed that no oral hearing shall be held.
The arbitral tribunal shall, as far as possible, hold oral hearings for the presentation of evidence or for
oral argument on day-to-day basis, and not grant any adjournments unless sufficient cause is made out,

and may impose costs including exemplary costs on the party seeking adjournment without any sufficient
cause
The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral
tribunal for the purposes of inspection of documents, goods or other property.
All statements, documents or other information supplied to, or applications made to, the arbitral
tribunal by one party shall be communicated to the other party, and any expert report or evidentiary
document on which the arbitral tribunal may rely in making its decision shall be communicated to the
parties.
DETERMINATION OF RULES OF ARBITRAL PROCEDURE
a) Arbitrator can make his own rules for resolving the disputes. He is not guided by the principles of
CPC or any other law but he is guided by principles of natural justice.
b) The decision of arbitrator cannot be against any provision of law & against arbitration agreement.
POWER TO TERMINATE / CONTINUE THE PROCEEDINGS – Section 25
If claimant fails to communicate his statement on the day fixed for hearing, the arbitrator shall
terminate the proceedings,. If respondthent fails to communicate his statement on the day fixed for
hearing, the arbitrator can continue the proceedings in the absence statement of the respondent.
If any party fails to appear in the oral hearing or produce documentary evidence the arbitral tribunal
may continue the proceedings and make the arbitral award on the basis of evidence before it.
EXPERT APPOINTED BY ARBITRAL TRIBUNAL – Section 26
Subject to agreement between the parties, the arbitral tribunal may appoint one or more expert to
report to it on specific issues to be determined by the arbitral tribunal, and require a party to give the
expert any relevant information or to produce or to provide access to, any relevant documents, goods or
other property for his inspection.
If a party requests or if the arbitral tribunal considers necessary, the expertshall, after delivery of his
written or oral report, participate in an oral hearing where the parties have the opportunity to put
questions to him and to present expert witnesses in order to testify on the points at issue.
Expert shall, on the request of a party, make available to that partyfor examination all documents,
goods or other property in the possession of the expert with which he was provided in order to prepare
his report.
COURT ASSISTANCE: Section 27
ARBITRATOT BHI COURT KI MADAT MAANG SAKTA HAI!
The arbitral tribunal or a party with the approval of the arbitral tribunal, can make an application to the
court for help related to the following matters:
a) For discovery of evidences.

b) For examining / verification of evidences.
c) For confusions related to law.
d) For examining the identity of a person or any witness.
The application to the Court shall specify:
a.the names and addresses of the parties and the arbitrators,
b. the general nature of the claim and the relief sought,-
c. the evidence to be obtained, by the Court.

The Court may on such application, order the production of evidences or production of witnesses directly
before the arbitral tribunal, if the order of the Court is disobeyed penalties and punishments by order of
theCourt on the representation of the arbitral tribunal as they would incur for the like offences in suits
triedbefore the Court.
SECTION – 28: Rules Applicable to Dispute
In other than international commercial arbitration, the law applicable to the dispute shall be substantive
law force in India.
In the case of International commercial arbitration:
a) The law applicable will be the rules designated by the parites.
b) the parties can also designate legal system of any country.
c) If no legal system has been designated by the parties than arbitral tribunal has to apply any rule of
law that it considers appropriate.
While deciding and making an award, the arbitral tribunal shall, in all cases, take into account the terms
of the contract and trade usages applicable to the transaction.
The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur (from equity or
conscience) only if the parties have expressly authorised it to do so.
SECTION – 29: Decision by Panel of Arbitrators
In case there are more than one arbitrator in the arbitral tribunal, the majority takes the decision.
TIME LIMIT FOR PASSING ARBITRAL AWARD – SECTION 29A
1. It is the duty of the arbitrator to pass arbitral award within a period of 12 months from the date of
reference i.e. when the arbitrator receives notice of his appointment.
2. If the award is made within a period of 6 months from the date of reference, the arbitral tribunal
shall be entitled for such amount of additional fees as the parties may agree.
3. If the arbitrator is not able to pass an award within a period of 12 months from the date of
reference, the parties may extend the time limit by not exceeding the period of 6 months .
4. If the arbitrator could not pass the award within the prescribed time as well as the additional time,
the office of the arbitrator shall come to an end unless the time has been extended by the court and
the court will grant extension only when the court is satisfied that delay is due to sufficient reason
and the court may also order for reduction of fees by 5 % for each month of the delay, the court may
also substitute one or all the arbitrators while extending the period of arbitration.
5. When application is given in the court for extension of period the Court shall endeavor to dispose of
the application within 60 days of notice to the opposite party (we are assuming that one of the
parties apply to the Court for extension of period)
6. If the new arbitrotors are appointed than it shall be deemed as continuation of the previously
appointed arbitrator.
FAST TRACK PROCEDURE – Section 29B
1. Before appointment of or at the time of appointment of arbitrator the parties to arbitration may
agree that their dispute shall be resolved through a fast track procedure .
2. In case parties have agreed for fast track procedure, the arbitral tribunal shall follow the following
procedure :
a. The arbitrator will only accept the written pleading from the parties and there shall be no
oral pleading .
b. The Arbitral tribunal shall have the power to call for any additional information or
declarations from the parties in addition to written pleadings filed by the parties.
c. The parties may make a request to the arbitrator for conducting oral pleadings or the
arbitrator tribunal may himself hold oral proceeding if he believes oral proceedings are

necessary for clarifying certain issues, in respect of such oral proceeding the arbitrator may
make rules and regulations.
d. Within a period of 6 months from the date of request in respect of fast track proceedings the
arbitrator shall pass an award.
Que: What do you mean by ‗‗Fast Track Procedure‘‘ ? Discuss the procedure to be followed by arbitral
tribunal to resolve the dispute between the parties under the Arbitration and Conciliation Act, 1996.
SETTLEMENT AGREEMENT – Section 30
If during the process of arbitration, it appears to arbitrator that it will not be possible to resolve the
dispute through arbitration , the arbitrator may request the parties to resolve the dispute through
conciliation or the parties may themselves request the arbitrator to commence conciliation.
If during the proceeding the parties settle dispute than the arbitrator shall terminate the proceeding and
if the parties request and the arbitrator does not object than the arbitrator can record the settlement in
form of an arbitral award on the agreed terms.
FINALITY OF ARBITRAL AWARDS
The award given by arbitral tribunal is final and binding on the parties.
Section 31 – Nature of Arbitral Award (Covered Earlier)
COSTS OF ARBITRATION – SECTION 31A
Cost of Arbitration includes following expenses in relation to arbitration:
(i) the fees and expenses of the arbitrators, Courts and witnesses;
(ii) legal fees and expenses;
(iii) any administration fees of the institution supervising the arbitration; and
(iv) any other expenses incurred in connection with the arbitral or Court proceedings and the arbitral
award.
The agreement which has the effect that a party is to pay the whole or part of the costs of the
arbitration in any event shall be only valid if such agreement is made after the dispute in question has
arisen.
The Arbitral Tribunal or the Court shall have the power to determine, the following issues relating to
cost of arbitration:
(a) whether costs are payable by one party to another.
(b) the amount of such costs.
(c) when such costs are to be paid.
The rule regarding paying of Costs is:
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful
party; or
(b) however the Court may decide any other mode of payment of cost by recording reasons in writing.
The Court or arbitral tribunal shall consider the following points at the time of deciding the coust of
arbitration:
(a) the conduct of all the parties;

(b) whether a party has succeeded partly in the case;
(c) whether the party had made a frivolous counter claim leading to delay in the disposal of the arbitral
proceedings; and
(d) whether any reasonable offer to settle the dispute is made by a party and refused by the other party.
The Court or the arbitral trubnal may pass following orders with resoect to the costs of arbitration:
(a) a proportion of another party's costs;
(b) a stated amount in respect of another party's costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date.
Bacchon Cost ke bare main yeh samjhiye:
Sab se pahle agar parties yeh decide kare ki ek party poora ya kuch cost bear karegi arbitration ka to yeh
tabhi valid hoga jab yeh dispute ke bad decide hua hai + arbitration tribunal ya court decide kar sakte
hai ki cost kitna, kab aur kaun kis party ko dega + General rule yeh hai ki court unsuccessfull party ko
cost pay karne ke liye kahega par agar court chahe to reason dekar kuch aur bhi bol sakta hai + cost ke
bare main faisla lete samay court yeh consider kar sakte hai ki parties ka aachran kaisa tha, kon se party
successful rahi, kisi party ne jhoothe claims kiye the jiske karan procedding lambi chali, kya kisi party ne
dispute settle karne ka offer diya + Court aisa bhi order kar sakta hia ki, ek party dusri party ka kuch cost
share karega, cost kuch ek particular date tak ki proceeding ka hi bear karna padega!
Section 32 – Termination of Arbitral Proceedings
The arbitral proceedings shall automatically terminate when the final award is passed.
In the following cases an order for termination of arbitral proceedings has to be passed by the arbitral
tribunal:
a) When the parties agree for termination.
b) When the continuation of proceedings has become impossible.
c) When the claimant withdraws his claim.
CORRECTION AND INTERPRETATION OF AN AWARD – Section 33
 There can be some spelling errors, mistake or some grammatical error.

 Any party cannot understand the award. Such party can apply to AT for correction and
interpretation of an award within 30 days from the date of receipt of the award (x + 30).
 Arbitral Tribunal will proceed with the request within next 30 days (x + 30 + 30).
 If no request has been received from the parties than the arbitrator can also make suo motto
correction in the award within a period of 30 days from the date of passing of the award.
ADDITIONAL AWARD – Section 33
1) After passing of an arbitral award, if any party is not satisfied with the award and believes that
the award does not satisfy or excludes his claim, such party can give a notice to the arbitral
tribunal for passing of an additional award
(x + 30) & X is the date of receiving the order.

2) AT may pass an additional award within 60 days of the notice ( x + 30 + 60).
3) If the tribunal does not pass an additional award, party can approach the court for setting aside
the arbitral award (x + 30 + 60 + 30) within 30 days of rejection of request by AT.
APPLICATION TO THE COURT FOR SETTING ASIDE OF AN AWARD – Section 34
Setting aside of an award means, to reject the award as invalid.
The application for setting aside of the award has to made within a period of 3 months from the date
of receipt of copy of arbitral award, however if any delay is made beyond 3 months the Court can
extend the period by 30 days, if Court is satisfied that a party was prevented by sufficient cause.
An application to the Court can be made for setting aside of arbitral award or interim award as the
arbitral award also includes interim award on the following graounds :
(Before applying to the Court the party has to give prior notice of application to the other party)
a) Incapacity of the party – e.g. party becoming unsound minded during the proceedings.
b) Invalidity of an agreement. E.g. Agreement entered into by use of coercion.
c) If a party was not given notice of the appointment of arbitrator or the exact timings and places of
arbitral proceeding, such party may approach the court.
d) Award passed by an arbitrator does not relate to the dispute.
e) Unqualified person was appointed.
f) If the Court finds that, Subject matter of a dispute not covered under Arbitration Act – e.g. Criminal
and Marriage related.
g) Award being in conflict with public policy of India, the award may be considerd as against public
policy of India if, it has been given by use of fraud or corruption or it is against the fundamental
policy of Indian Law or it is against the basic notion of morality or justice.
h) The Composition of arbitral tribunal or the arbitration procedure was not as per the arbitration
agreement.
The Court shall endeavour to dispose of the application within a period of one year from the date on
which the applicant sent the copy of the notice to the other party (as given above)
In the case of Sasidharan Vs Sundaram Finance Limited (2018), it was decided that the place of
arbitration decides the jurisdiction of the Court where parties can approach the Court for getting relief
under Arbitration and Conciliation Act.
In the case of Keval Krishna Hitkari Vs Anil Keval Hitkari, the Court decided that, the objections
against arbitral award can be raised b=only by the person whose rights are curtailed by the Award.
As per Section 34(2A) an arbitral award arising out of arbitrations, other than international commercial
arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent
illegality appearing on the face of the award:
Provided that an award shall not be set aside merely on the ground of an erroneous application of the
law or by re appreciation of evidence.
SECTION 35: Finality of Arbitral Award
The award passed by the arbitrator shall be final and binding on the parties.
An award passed by the arbitrator shall be a complete decision which decides the matter of dispute.
SECTION 36: ENFORCEMENT OF THE AWARD
Beta agar award final hai aap ne appeal nai ki aur appeal ka time expire ho gaya fir award ek dam
decree jaisa hai, aur agar award challenge bhi hua hai to bhi award enforced hi hota rahega jab tak
court award ke upar stay nail aga deta!

Where the time for making an application to set aside the arbitral award has expired, then, such award
shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same
manner as if it were a decree of the court.
Where an application to set aside the arbitral award has been filed in the Court under section 34, the
filing of such an application shall not make that award unenforceable, unless the Court grants an order
of stay of the operation of the said arbitral award on a separate application made for stay of the
operation of the award.
Upon filing of an application for stay of the operation of the arbitral award, the Court may, subject to
such conditions as it may consider fit, grant stay of the operation of such award for reasons to be
recorded in writing.
Provided that the Court shall, while considering the application for grant of stay in the case of an
arbitral award for payment of money, have due regard to the provisions for grant of stay of a money
decree under the provisions of the Code of Civil Procedure, 1908.
In the case of Elecrosteel Castings Vs Reacon Engineers, it was decided that the award will be enforced
in same manner as the decree of the Court and thers is not provision for takeing of security from
judgement debtor, in the arbitration and conciliation act.
In the case of Subhas Projects Limited Vs Assam Urban Water Supply, it was decided that unstamped
arbitral award is curable irregularity.
In the case of Union of India Vs Madnani Construction Corporation, it was decided that if unstamped
award are presented in the Court for enformecemnt than the Court must give the parties an opportunity
to rectify the award.
APPEALS
Section 37 : Appelable Orders
An appeal can be filed against the following orders (and from no others) to the Court authorised by law
(Destrict Court):
(a) granting or refusing to grant any measure under section 9;
(b) setting aside or refusing to set aside an arbitral award under section 34.
An appeal can also be filed in a Court against the order of arbitral tribunal relating to:
(a) when the arbitral tribunal has accepted the request to exceed its jurisdiction under
section 16.
(b) granting or refusing to grant an interim measure under section 17.
Under this section, if the court passes the order, no second appeal can be filed against such order of the
Court, however the parties can file an appeal to Supreme Court.
SECTION 38: DEPOSITS
Arbitration process ke charche ke liye court dono parties ko kah sakta hai ki thoda advance jama kar
digiye agar claimant paise mangta hai aur dusri party counter claim karti hai to court alag alag amount bhi
deposit karne ke liye kah sakta hai, agar ek party apna share na de to uska share dusri party de sakti hai
aur agar donon party apna share na de to arbitrator proceedings ko suspend kar sakta hai!
Towards the cost of arbitration in settling the claims of the parties the Arbitral Tribunal may ask both of
the parties to deposit an equal amount towards the advance against the costs of arbitration.

In case of claims by claimant and counter claims by respondent the arbitral tribunal may fix separate
amount of deposit for claim and counter claim, in all other cases both the parties shall pay equal share
towards deposit.
If one party does not pay the amount of its share towards the deposit the other party may pay the share of
such party and if both the parties do not pay their share the Arbitral tribunal may suspend or terminate
the arbitral proceedings.
And upon such termination the arbitrator shall send the account of arbitration and return any excess
money that is with the arbitratior.
SECTION 39: LIEN ON ARBITRAL AWARD AND DEPOSITS AS TO COSTS
(Bhai arbitrator ko uska fees nai diya to uske pas poora adhikar hai ki wo apne award ko rok kar rakhega)
Unless the arbitration agreement contains otherwise, the Arbitral Tribunal shall have a right of lien on its
award if the parites does not pay it the cost of arbitration.
(it means the Arbitral Tribunal can claim the rights under arbitral award)
If the arbitral tribunal refuses to pass an arbitral award till the time the costs of arbitration are paid to
arbitral tribunal, in this case any party may make an application to the Court and in this case the court
may ask the applicant to deposit an amount in the court and than, the court orders the tribunal to pass
the arbitral award.
On such order the Arbitral Tribunal Passes the award and the court pays fees to the arbitral tribunal as it
thinks fit from the deposit given by the applicant.
The arbitral tribunal has a right to make representation before the Court.
In the case of, Norjal AS, Vs Hyundai Heave Industries Limited, it was decided that, if the fees
demanded by the arbitrator has been ficed by written agreement between the applicant and the tribunal,
no application can be made to the Court to compel the arbitrator to deliver the award.
SECTION 40: ARBITRATION AGREEMENT NOT TO BE DISCHARGED BY DEATH OF PARTY THERETO
BHAI AGAR PARTY MAR GAI TO USKA,
LEGAL REPRESNTATIVE PARTY KO REPRESENT KAREGA
An arbitration agreement shall not be discharged by the death of any party to arbitration and such
arbitration agreement shall be enforceable by or against the legal representative of the deceased.
The mandate (duties) of an arbitrator shall not be terminated by the death of' any party by whom he was
appointed.
Sabse pahle to yah samjhiye ki ek party ki death se arbitration proceeding nai rukegi aur uske legal
representative ke against shuru rahengi!
However this section shall not apply when the right to action of any party is extinguished due to operation
of law – this provision will apply when there was a contract of personal nature such as the contract to
sing, paint or the contract to marry.
The above rule is based on a principle ―Actio personalis moritur cum persona‖, which means certain rights
oof action die with Man.
SECTION 41: PROVISIONS IN CASE OF INSOLVENCY
During the arbitral proceeding if any party becomes insolvent , then the Court appoints receiver or official
assignee for such insolvent person and If the receiver or the official assignee adopts the contract, which

contains arbitration clause than, than he will become bound by the contract and the matter will have to
be decided by the arbitration.
Agar official assignee ne arbitration agreement accept kiya to fir wo proceedings ko continue rakhega.
If the matter in dispute has to be decided for the purpose of carrying out insolvency proceedings and the
dipute has been arisen from the contract which provided for the arbitration, the receiver or the other
party may apply to the court for an order.
Agar dispute ka resolve hona jaroori hai insolvency ki process ko complete karne ke liye + dispute usi
contract se create hua hai jis main arbitration ka provision tha to official assignee ya dusri party court ja
sakte hai court ke order ke liye aur court kah dega ki proceedings continue rakho arbitration main agar
court ko lagta hai ki mamla arbitration se solve hona chahiye.
The Court shall pass an order only when it appears to the Court that the matter should be decided by the
arbitration.
SECTION 42: JURISDICTION OF COURT
In spite of any thing contained else where, when, in respect of an arbitration agreement, any
application has been made in a Court, that Court alone shall have jurisdiction over the arbitral
proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings
shall be made in that Court and in no other Court.
SECTION 43: LIMITATIONS
Limitation Act, 1963, shall apply to arbitrations as it applies to proceedings in court.
For the purpose of limitation act, arbitration shall be deemed to have commenced on the date when the
request for arbitration is received by the opposite party.
If the Arbitration agreement specifies that some action shall be taken to commence arbitration within a
specific time to claim relief under arbitration agreement, and if no such action is taken within the specific
time, in this case the court on an application may extend the time if the court believes that if such
extension is not given then a party may suffer a hardship.
SECTION 44: NEWYORK CONVENTION AWARDS
Forreign Awards means the arbitral award on differences between persons arising out of legal
relationship, whether contractual or not. It is necessary that the the relationsip should fall within the
meaning of word ―commercial‖ as per the law in force in India.
The foreign awards will be enfoced in India only when the it is made in such territories, as the Central
Government may declare by notification in the official gazette to be the territories to which the
convention applies.
SECTION 45: POWER OF JUDICIAL AUTHORITIES TO REFER THE PARTIES TO ARBITRATION
If any party under section 44 makes request to the Court the Court shall refer the parties to arbitration if
the Court finds tha arbitration agreement to be valid.
SECTION 46: WHEN FOREIGN AWARDS ARE BINDING
Section 46 declares that any foreign award which would be enforceable under the arbitration and
Conciliation Act, 1996, shall be treated as binding for all purposes on the parties to the agreement.
SECTION 47: MATTERS OF EVIDENCE
Evidence
Beta agar award pas hua hai outside India par use agar India main lagu karwana hai to koi bhi party court
ja sakti hai award ke sath, aur district ya high court main case shuru application dala ja sakta hai!

The party applying for the enforcement of a foreign award shall, at the time of the application, shall
produce before the court:
a. the original award or a copy of the award which is duly authenticated in the manner required by the
law of the country in which it was made;
b. the original agreement for arbitration or a duly certified copy of the arbitration agreement, and
c. such evidence as may be necessary to prove that the award is a foreign award.
If the award is not in English language then its certified copy of translation must be produced in the
Court.
For the purpose of this section, the Court means Principal Civil Court of District and it also includes High
Court.
SECTION 48: Setting Aside of Foreign Award
On the following grounds, the award granted by New York / Geneva Conventions or any other foreign
award can be set aside:
a) Incapacity of the party – e.g. party becoming unsound minded during the proceedings.
b) Invalidity of an agreement. E.g. Agreement entered into by use of coercion.
c) If a party was not given notice of the appointment of arbitrator or the exact timings and places of
d) Award passed by an arbitrator does not relate to the dispute.
e) Unqualified person was appointed.
f) Subject matter of a dispute not covered under Arbitration Act –
g) Award being in conflict with public policy of India.
h) The Composition of Arbitral Tribunal not as per arbitration agreement.
SECCTION 49: CONDITIONS FOR ENFORCEMENT OF FOREIGN AWARDS
If the Court is satisfied that the foreign award is enforceable, the award shall be deemed to be the
decree of the Court.
Que: The enforcement of Foreign Award is subject to certain conditions. Explain this statement
SECCTION 50: APPELABLE ORDERS
Section 50 deals with the orders that are appelable and states that an appeal can be made against the
orders thrugh which the Court refused to refer the parties to arbitration under section 45 and if the
Court has refused to enforce the foreign award under section 48. Appeals will be made to the Court
which is authoirsed to hear appeals against such orders.
Against the order passed by the Court no second appeal can be filed however the appeal can be made to
Supreme Court.
Section 53, 54, 55, 56 deals with enforcement of the awards passed under Geneva Convention
SECCTION 57: CONDITIONS FOR ENFORCEMENT OF FOREIGN AWARDS
The foreign award can be enforced by Indian Courts, if the following conditions are satisfied:
a. the award has been made in pursuance of a submission to arbitration which is valid under the law
applicable thereto;
b. the subject-matter of the award is capable of settlement by arbitration under the law of India;
c. The award has been made by the duly constituted arbitral tribunal, as per the laws of the foreign
Country.

d. The award is final in the Country in which it is passed .i.e. no appeal or proceeding is pending in the
foreign Country in respect of the award.
e. the enforcement of the award is not contrary to the public policy or the law of India.
The Court can also adjourn the enforcement of the foreign awards.
Confidentiality of information
Section 42A provides that notwithstanding anything contained in any other law for the time being in force,
the arbitrator, the arbitral institution and the parties to the arbitration agreement shall maintain
confidentiality of all arbitral proceedings except award where its disclosure is necessary for the purpose of
implementation and enforcement of award.
Protection of action taken in good faith
According to Section 42B of the Act, no suit or other legal proceedings shall lie against the arbitrator for
anything which is in good faith done or intended to be done under this Act or the rules or regulations
made under the arbitration act.‖
Arbitral Council of India (ACI) Section 43A to Section 43 K of Arbitration & Conciliation Act, 1996
Basically under the Arbitration Act an Arbitral Council of India (ACI) has been established for various
purposes.
Section 43B of the Arbitration Act, 1996 provides power to the Central Government to establish ACI for
performing various functions & duties under the Arbitration Act.
The ACI shall be a body corporate having a perpetual succession with its head office at Delhi & with the
approval of Central Government it an also establish its offices at the other places in India.
Composition of Council
The ACI shall have following members as per section 43C of Arbitration Act, 1996:
a) A chairperson to be appointed by Central Government in consultation with chief justice of India, a

person who has been the judge of Supreme Court or Chief Justice of High Court or a judge of High Court
or any eminent person having special knowledge & experience of arbitration proceeding, can be
appointed by Central Government as Chairperson.
b) A member will be nominated by Central Government, who is an eminent arbitration practitioner who
has a significant knowledge & experience in institutional arbitration.
c) A member will be appointed by CG in consultation with the Chairperson of ACI, who is an academician
& has experience in research & teaching in the field of arbitration & alternate dispute resolution laws.
d) A member Ex-officio (full time member) who is secretary in the department of legal affairs or his
representative who is not below the level of joint secretary.
e) A member Ex-officio, who is secretary in the department of expenditure under the ministry of finance
or his representative who is not below the level of joint secretary.
f) One part time member – who will be representative of recognised body of commerce & industry (like
FICCI), chosen by Central Government on rotational basis.
g) One CEO, to be appointed by Central Government.
Duration of office of Chairperson & Members

The Chairperson, members other than ex-officio members will hold office for a period of 3 years from
the date when they enter upon the office, or up to the age of 70 years in case of chairperson or 67 years
in case of members, whichever is earlier.
The salaries to terms & conditions applicable to chairperson or member shall be such that as fixed by
Central Government. The part time members will also be entitled for travelling allowance as fixed by
CG.
Duties & Functions of Council: Section 43D
1) In general the duties & functions of ACI is to promote & encourage the process of arbitration,
mediation, conciliation or other alternate dispute resolution process & for this purpose the ACI may
make policies & guidelines for maintaining uniform professional standards in respect of matters relating
to arbitration.
2) For the purpose of achieving the above objectives the ACI may:
a) Make policies for Arbitral institutions.
b) It can grant recognition to the Institutes that provides accreditation to the arbitrators (the institutes
that maintain data base of arbitrators)
c) Review the process of grading of Arbitrators & arbitral institutions.
d) It conducts seminars, courses, trainings in the area of arbitration itself or in collaboration with law
firms or law universities or arbitral institutions.
e) It promotes institutional arbitrations for strengthening the arbitral institutions.
f) It establishes & maintain depository of arbitral awards.
g) Conducts various examination on arbitration subjects & issues certificates.
h) Makes various national & international tie ups to promote domestic as well as international
arbitration.
i) Such other functions as may be decided by Central Government.
Acts of ACI not to be treated as Invalid: Section 43E
The acts, proceedings or decisions given by ACI shall not be considered as invalid on the ground that
there was any vacancy or defect so the composition of council or there was any defect in the
appointment of member of council or there was any irregularity in the procedure followed by the ACI.
Resignation of Chairperson or Members: Section 43E
The Chairperson or member (full time or part time) may at any time by notice in writing to the central
government resign from his office.
However the resignation will be effective from, earliest of the following dates:
a) 3 months from the date of receipt of resignation by Central Government.
b) Till the time the successor is appointed to office.
c) Up to the Expiry of his term of office.
Removal of Member – Section 43G

If the member of ACI is undischarged insolvent or he has abused his position or he has become physically
or mentally incapable of acting as member or has acquired any financial or other interest which can
affect his functions.
In all the cases the member can be removed by Central Government. However if the member is to be
removed on the ground of ―acquisition of interest, or abuse of position,‖ the removal will be made only
when the Central Government has referred the matter to supreme court & supreme court conducted an
enquiry & report of enquiry was sent is to the member & to the Central Government.
As per section 43H the ACI may also appoint experts & create experts committee as per the terms &
conditions as ACI may specify by making regulations.
General Norms for Grading of Arbitral Institutions: Section 43 I
The ACI shall make grading of arbitral institutions on the criteria of infrastructure, the quality,
qualifications & calibre of Arbitrators, whether time limits are compiled for disposal of arbitral
proceedings etc. the manner & made of grading will be fixed by ACI by making regulations.
The qualification, experience & norms (rules) for accreditation of arbitrators shall be as specified by ACI
by making regulations.
Eight schedule of Arbitration Act
A person will be qualified to be an arbitrator if:
a) He is a CA/CS/CMA/Advocate + 10 years‘ experience in practice
b) He has been an officer of Indian legal service.
c) He has been an officer in government, Autonomous body, public sector undertaking or at senior
position in private sector + He has a law degree + 10 years‘ experience.
d) He has been an officer in government, Autonomous body, public sector undertaking or at senior
position in private sector + He has an engineering degree + 10 years‘ experience.
e) He has been officer at senior level & has experience of administration + in Central Government or
State Government or Public Sector Undertaking or private sector company having reputation.
f) He is a person with degree level education + 10 years‘ experience in any specific or technical stream
in the field of telecom, Information Technology or Intellectual Property Rights or IPR or other areas in
the government or autonomous body or PSU or senior level managerial position in private sector.
General Rules applicable to Arbitrator
a) He should be independent, impartial & act with integrity & objectivity.
b) He should be neutral.
c) He should avoid conflict of interest with the parties.
d) He should not be convicted of any offence involving Moral Turpitude or economic offence or should
not be involved in any legal proceeding.
e) He should be familiar with constitution of India, principle of natural justice.
f) He should have understanding of domestic & international laws or arbitration.
g) He should be aware of contractual laws.
Depository of awards

According to the Section 43K the Council shall maintain an electronic depository of arbitral awards made
in India and such other records related thereto in such manner as may be specified by the regulations.
Power to make regulations by Council
Section 43L empowers the Council may, in consultation with the Central Government, make regulations,
consistent with the provisions of this Act and the rules made thereunder, for the discharge of its functions
and perform its duties under the Act.
Chief Executive Officer
Section 43M states that there shall be a Chief Executive Officer of the Council, who shall be responsible
for day-to-day administration of the Council.
The qualifications, appointment and other terms and conditions of the service of the Chief Executive
Officer shall be such as may be prescribed by the Central Government.
The Chief Executive Officer shall discharge such functions and perform such duties as may be specified by
the regulations.
There shall be a Secretariat to the Council consisting of such number of officers and employees as may be
prescribed by the Central Government.
The qualifications, appointment and other terms and conditions of the service of the employees and other
officers of the Council shall be such as may be prescribed by the Central Government.
DISTINCTION BETWEEN
Arbitration Conciliation
It a formal process. Informal process.
Arbitrator passes arbitral award which is final Conciliator does not have the power to pass a
and binding. judgement / order; he brings the parties to
settlement or compromise agreement.
Arbitrator should always be in odd nos. They can also be in even nos.
Both the parties are required to terminate One party can also terminate the proceeding
the proceeding. at any time.
Arbitrator can be appointed even before Conciliator is appointed only after dispute has
dispute commences. arisen.
QUE:Distinguish between Arbitration and Conciliation under the Arbitration and Conciliation Act, 1996.
FEATURES OF CONCILIATION
The party that wants to settle the commercial dispute through conciliation has to send the other party a
written invitation to start the conciliation proceedings.
Conciliation proceedings will start only when the other party accepts the invitation of the first party.
If the second party does not give any reply to the invitation of the first party within 30 days of sending
the invitation then the first party should consider that the other party has rejected the invitation.
SETTLEMENT AGREEMENT
When the conciliator believes that there exists a ground for settlement, he will form a settlement
agreement & will send the same to the parties.
The parties may either:

Accept Reject
If parties do not sign the agreement,
Parties will sign the agreement. it will be treated that parties have
rejected the settlement
Agreement becomes a contract &

the Contract becomes final &
binding the conciliator will continue
settlement proceedings.
Conciliation proceeding would

come to an end
ARBITRATOR IS NOT BOUND TO FOLLOW THE LAWS
While settling the dispute, the Conciliator is not bound by the Civil Procedure Code, Indian Evidence Act.
He can decide his own procedure to settle the dispute.
ROLE OF CONCILIATOR
The conciliator has got the following roles:
a. The conciliator should promote communication between the parties.

b. He should be guided by the principal of objectivity, fairness& justice.
c. He should decide his own procedures as per the circumstances of the case.
d. He should make a settlement of the agreement whenever he believes there exist a ground for
settlement of the dispute.
e. The conciliator should maintain full confidentiality regarding the information that he receives
during the course of arbitration proceedings.
TERMINATION OF THE CONCILIATION PROCEEDINGS
The conciliation proceedings shall stand terminated when:
a. When the settlement agreement has been signed between the parties.
b. When after having discussions with the parties the conciliator declares that further arbitration
proceedings are no longer required or justified.
c. When parties mutually decide to terminate the proceedings & send a written statement to the
conciliator.
d. By a written declaration sent by one party to the other party & the conciliator regarding
discontinuance of the conciliation proceedings.
RESORT TO ARBITRAL OR JUDICIAL PROCEEDINGS
During the course of conciliation proceedings no arbitral or judicial proceedings shall be commenced in
any court on the subject matter that is being resolved through conciliation proceedings.

However a party may approach court or refer to arbitral proceedings if he is of the opinion that any
hardship is done with him.
ALTERNATIVE DISPUTE RESOLUTION
ADR reduces the burden of court by providing alternative modes of solving the disputes i.e. by
arbitration, mediation, conciliation, negotiation etc. It provides procedural facility to save the time &
money of the convention trial.
ADR services are not provided appropriately in India; hence there is an urgent need to establish &
promote ADR services. The ICADR is a society registered under the Societies Registration Act, 1860 and
is a non-profit making organization which promotes research and training in the field of ADR. They
maintain panels of independent experts in the implementation of ADR process.
Almost all disputes including civil, labour and family disputes can be settled by the ADR. They have
proved to be equally effective in the business environment. This point proves that ADR is a boon to the
modern economy.

CHAPTER: 14
INDIAN STAMP ACT 1899
BHAI SARKAR KO REVENUE COLLECT KARNA HAI PAISA,
ISLIYE BANA DIYA STAMP ACT, BOLO TARA RA RA!
INTRODUCTION
It is the duty of a CS to check whether all the instruments of a Company are properly stamped. If
documents are not properly stamped, the CS may be held liable.
OBJECTIVES
1) The object of the act is to raise revenues for the State Government.
2) Stamp duty is payable on the instruments. Instrument means a piece of paper which creates
rights & obligations on the parties.
3) Stamping is preliminary step to registration of documents.
BILL OF LADING
SHIP SHIP KHELTE HO,
SAMAN SHIP SE UTARNA HAI TO BILL OF LADING LAGEGA
―Bill of Lading‖ includes a ‗through bill lading‘ but does not include a mate‘s receipt. When the goods
are sent through ship the shipping authorities issue a bill of lading, it is a document of title of the goods
loaded in the ship.
When the receiver of the goods will produce the bill of lading then only the shipping authorities will
release the goods at the receiving end. Mates receipt is just an acknowledgement of the receipt of the
goods in the ship.
CONVEYANCE
It means an agreement relating to transfer of a moveable or Immoveable Property between two living
persons.
EXECUTED & EXECUTION
Executed means signed & execution means signature. Signature includes mark by an illiterate
person.Once an instrument is signed then only it becomes chargeable for payment of the duty.
The Collector can receive the stamp duty without penalty and certify an instrument as duly stamped, as
from the date of execution.
We can also say that executed means signed and execution means under the process of signing.
In the case of Mewa Kunwari Vs. Bourey, it was decided that, the instrument is duly stamped if it has
been duly stamped at the time of execution and is admissible in evidence, though the stamp is
subsequently removed or lost

QUE:Distinguish between executed and execution under Indian Stamp Act, 1889.
BOND
It means a written promise to pay money with a condition that if the specified act is performed then
promise to pay money shall become void.
It also means a written promise through which a person promises to transfer grain or produce of
agriculture to another person.
LEASE
Lease is transfer of possession of immoveable property & includes:
 Patta: Land given by collector of the district to the farmer against share of produce.
 Tolls: The instrument through which tolls are given on let.
 Kabuliyat: An instrument through which a person accept the terms & condition of lease.
RECEIPT
It means a document through which a person accepts that he has received money, cheque, promissory
note or bill of exchange.
It is an instrument through which a person accepts that he has received a moveable property in
satisfaction of his debts.
It is an instrument through which a demand part of demand is accepted to be satisfied.
Any other document that shows an acknowledgement in whether signed with the name if person or not.
An ordinary cash memo issued by a shopkeeper or another person selling the goods or other merchandise
isnot a receipt, unless it contains an acknowledgement of receipt of the money.
A letter acknowledging the receipt of money or cheque is a receipt. A document merely saying that the
signatory has received a sum of Rs. 500 is a receipt.
Under Section 30 of the Act any person receiving any money exceeding twenty rupees in amount or any
bill of exchange, cheque or promissory note for an amount exceeding twenty rupees or receiving in
satisfaction of a debt any movable property exceeding twenty rupees in value, shall on demand by the
person paying or delivering such money, bill, Cheques, note, or property, give a duly stamped receipt for
the same.
Promissory Note
It means a promissory note as defined by the Negotiable Instruments Act, 1881. It also includes a note
promising the payment of any sum of money out of a particular fund which may or may not be available,
or upon any condition or contingency which may or may not be performed or happen. [Section 2(22)]
Requisities of a promissory note as per the Negotiable Instruments Act, 1881 are the following:
(a) the document must contain an unconditional undertaking to pay;
(b) the undertaking must be to pay money only;
(c) the money to be paid must be certain;
(d) it must be payable to or to the order of a certain person or to bearer;
(e) the document must be signed by the maker.
BILLS OF EXCHANGE PAYABLE ON DEMAND
Under Section 2(3) of the Stamp Act, a ―bill of exchange on demand‖ includes:
(a) an order for the payment of any sum of money by a bill of exchange or promissory note

or for the delivery of any bill of exchange or promissory note in satisfaction of any sum of money,
or in the payment of any sum of money out of any particular fund which may or may not be available, or
upon any condition or contingency which may or may not be performed or happen;
(b) an order for the payment of any sum of money weekly, monthly or at any other said period; and
(c) a letter of credit, that is to say, any instrument by which one person authorises any other person to
give credit to the person in whose favour it is drawn.
It may be noted that a bill of exchange payable on demand includes even a letter of credit, as per above
definition.
Thus, the definition in the Stamp Act includes many instruments which could not be classed as ‗bills of
exchange‘ within the definition given by the Negotiable Instruments Act, 1881.
Instrument is a piece of paper which is written and signed, which creates, transfers, assings, limits, or
extinguishes rights or obligations of the persons who are the parties to the instrument.
For example, an unsigned draft is not an instrument, an entry in the register in which the conditions of
hiring of machinery is contained is an instrument, a receipt is an instrument, in the case of Kalam Capital
Builders Vs State it was decided that photocopy of an agreement is not an instrument.
When an instrument is properly stamped it is called as duly stamped.
Settlment means any non testamentary arrangement in writing of movable or immovable property which
is done in consideration of marriage or for distribution of property amogst family members or others or
for any religious or charitable purpose. Settlement is different from ―will‖ as will operates after death of
a person but settlement operates immediately.
SUBSTANCE OVER FORM
The court considers substance of the agreement before considering the title, or the form of the
agreement. It means if the title of the agreement is in contradict with the substance, in this case the
court will consider the substance or the content of the agreement before imposing a duty on the
instrument. So if there is any confict between the form and substance of the agreement then substance
will prevail over form.
Que: It is the substance of the transaction as contained in the instrument that determines the stamp
duty. Elucidate.
POWER OF CENTRAL GOVERNMENT
Bond debentures and other securities issued by municipal authorities shall be chargeable with the duty
not exceeding 1% of the consideration .No further duty will be payable on consolidation or renewal of
such bond.
The Central Government has the power to remit or exempt any instrument from the scope of stamp duty
which may include policies of insurance, shares issued by company to a single person etc.
INSTRUMENTS CHARGEABLE WITH STAMP DUTY
1) Any instrument which is executed in India & is mentioned in Schedule I of Indian Stamp Act. E.g.:
Share certificate, debentures, Power of Attorney etc.
2) Bill of exchange (except bills of exchange payable on demand) and promissory notes (Excluding
cheques).

3) Bill of exchange and promissory note drawn or made out of India but accepted or paid or endorsed or
negotiated in India.
4) Instruments which is executed outside India but relates to any matter or thing or property situated in
India and the instrument is received in India.
5) Instrument relating to transfer of immovable property.
However, the following instruments are not changeable to stamp duty:
a) Instruments relating to transfer of immovable property having value less than Rs. 100.
b) Instruments executed by or on the behalf of the Govt.
c) Instrument relating to sale or mortgage of any ship or vessel.
d) Any instrument executed by, or, on behalf of, or in favour of, the Developer or Unit or in
connection with the carrying out of purposes of the special Economic Zone.
e) Bills of exchange & promissory notes made outside India & payable outside India (Foreign Bills).
In the case of Commissioner of Inland Revenue Vs G Angus and in the case of Sadeshi Cotton Mills, it
was decided that, the crucial factor that decides whether anything is liable to stamp duty is that
whether such thing falls within the definition of instrument.
NOTE: Securities that are held with depository are not to be considered as instrument & hence not
chargeable to duty. (jab issuer apne shares depository ko deta hai tab us ke upar stamp duty nai lagti)
The Instruments that are executed during the schemes of corporatization & demutualization (of stock
exchanges) are also exempt from duties.
SINGLE TRANSACTION EFFECTED BY SEVERAL INSTRUMENTS
TRANSACTION EK INSTRUMENT ANEK,

DUTY SIRF EK TRANSACTION PAR LAGEGI!
1) For effecting a single transaction, many agreements may be required to be executed.
2) This creates a hardship on the parties to pay stamp duty on every single instrument.
3) But the Indian stamp Act provides a relief from the above mentioned hardship.
4) Section 4 of the Indian Stamp Act, states that, if for effecting a single transaction many
instruments are executed, the stamp duty will be paid only on the principal instrument & the
remaining instruments will be chargeable with duty of Rs. 1.
5) The principal instrument will be the instrument on which highest stamp duty is payable.
Example
A person, X gifted all his property to his brother Y by a deed and in consideration of that the other
brother promised to pay Rs 1 lac per month to X and also mortgaged one of the gifted property by a
deed, in favor of brother X as a guarantee for performance of the promise, the court decided that both
the instruments relate to one transaction only.
SECTION 4 NOT APPLICABLE
(i) A lease deed is made and after some time another lease deed is made to modify the previos lease
deed, both the leases are several matters and not covered under section 4.
(ii) A person purchases the land makes the half payment and for the remaining half payment, mortgages
the same land to the seller. (separate matters not covered in section 4)
INSTRUMENTS RELATING TO SEVERAL DISTINCT MATTERS
BHAI BHAUT SARE TRANSACTIONS EK INSTRUMENT PAR KIYE,
TO DUTY SAB KI DENI PADEGI!!

Section 5 of the Indian Stamp Act deals with the single instrument & distinct matters.
When in a single instrument, many transactions are mentioned the instrument will be charged with
separate duty related to each transaction and sum of the duties for all transactions so effected will be
paid as stamp duty.
e.g. : ‗A‘ sells house to ‗B‘ for Rs. 5,00,000 & in the same instrument ‗B‘ sells his house to A for Rs.
10,00,000 the duty on the instrument will be the total of separate duty to be paid on each transaction
i.e. on 15,00,000.
Illustrations:
(i) An agreement to dissolve the partnership deed and in the same agreement the prropety of firm was
mortgaged with a partner for payment of his settlement amount. The two are ―distinct
matters‖(Chinmoyee Basu v. Sankare Prasad Singh,)
(ii) A person makes an agreement and creates a mortgage in favour of the lender and also states that if
the mortgaged properties are insufficient than he will mortgage his other properties, in this case section
5 will not apply which means here section 4 can apply. (Tek Ram v. Maqbul Shah,).
(iii) A grant of annuity by several persons requires only one stamp (because there is only onetransaction).
(iv) A lease to joint tenants requires only one stamp.
(v) When joint shareholder jointly transfer their shares in the company, section 5 does not apply.
(vi) A power of attorney executed by several persons authorising the agent to do similar acts for them
inrelation to different subject matter is chargeable under Section 5, where they have no
commoninterest.
PRINCIPAL AND ANCILLARY
The test is – ―What is the leading object? Which is principal and which is ancillary?
If an instrument‘s primary object is exempted from stamp duty then stamp duty cannot be charged only
because matter ancillary to primary matter is chargeable to stamp duty. A very common example of this
is an agreement for sale of goods, which also contains an arbitration clause.
The latter clause is result of the former agreement. Where a deed of dissolution of partnership contains
a clause charging the partnership assets for payment of certain amounts to outgoing parties, the
instrument is chargeable separately for the charge and the partnership. The former is not ancillary to
the latter.
Where a document contains a transfer of mortgage and an agreement to make a loan, the mortgage and
the loan are distinct matters and separately chargeable.
If in a lease there is also an agreement to pay a certain sum on account of the balance of previous year,
the document is chargeable (I) as a lease and (ii) also as a bond.
A lease reserving separately rent for house and rent for furniture is chargeable separately for each of the
items.
Where, at an auction, a purchaser purchases several lots and there is only one instrument in respect of
all of them the separate purchases are, nevertheless, separate and distinct matters and so, the stamp
duty must be determined separately.
SECTION 6: INSTRUMENT COMING UNDER SEVERAL DESCRIPTIONS
If a single instrument falls within two different descriptions in schedule I of Stamp Act, such instrument
will be chargeable with the highest duty given in the schedule 1.

e.g.: A document fell within definition of both bond and promissory note. It was decided by the court
that stamp duty payable will be higher of promissory note or bond.
Section 8A – Securities held with Depository Not liable to Stamp Duty
When a Company issues securities to any depository in this case duty will be paid on the total amount of
security which is issued to depository however such security will not be stamped (duty bharo par stamp
lagane ki jaroorat nai hai)
When securities are transferred from a person to depository or from depository to beneficial owner or
transfer of beneficial ownership in mutual funds or when the depository deals in beneficial ownership in
respect of the securities no stamp duty will be charged. (depository jab internal transfers karti hai tab
stamp duty nai lagegi)
When a shareholder opts for dematerialisation under section 14 of Depository Act, the stamp duty will be
payable as is paid on the issue of duplicate share certificates.
When the transaction of short sell is done and in that transaction securities are also lent whether in
shares or in the units of mutual funds and the transaction is done by the beneficial owener through
depository on such transaction also stamp duty is not payable.
REDUCTION, REMISSION AND COMPOUNDING OF DUTIES
Section 9 empowers the Government, (Central or the State as the case may be), to reduce or remit,
whetherprospectively, or retrospectively, the duties payable on any instrument or class of instruments or
in favour ofparticular class of persons or members of such class.
Section 9 also empowers the Central Government toprovide for the composition or consolidation of
duties of policies of insurance and in the case of issues byany incorporated company or other body
corporate or of transfers where there is single transferee (whetherincorporated or not) of debentures,
bonds or other marketable securities.
Section 10 deals with the manner of payment of stamp duties as per the section stamp duties must be
paid as per the sections of stamp act or if no specific section is given then as per the rules made by the
state governements.
MODE OF PAYMENT OF STAMP DUTY
1) Adhesive Stamps, 2) Impressed Stamp.
ADHESIVE STAMP
CHIPKANE WALA STAMP LAGAO
When adhesive stamps have been used, they should be cancelled in an effective manner so that they
cannot be reused.
Section 11 deals with the use of adhesive stamps. This Section provides that the following instruments
shall be stamped with adhesive stamps, namely:
a. Instruments chargeable with a duty not exceeding 10 naya paisa except parts of bills of
exchange payable otherwise than on demand and drawn in sets.
b. Bills of exchange and promissory notes drawn or made out of india.
c. Entry as an advocate, vakil or attorney on the roll of a high court.
d. Notarial acts; and
e. Transfers by endorsement of shares in any incorporated company or other body corporate.
IMPRESSED STAMPS
These stamps are impressed on a sheet of paper where other conditions of agreement are mentioned.

Impressed stamps are used for effecting following transactions:
1) Agreements related to immovable property like :

a) Sale, Lease, Mortgage, Special Power of Attorney for registration of immovable property.
b) Will
c) Joint venture agreement,
d) Partnership agreement,
e) Affidavit, etc.
CANCELLATION OF THE STAMPS
STAMP AGAR CANCEL NAI KIYA TO,
LOG USE WAPS ISTEMAL KARENGE!
Section 12 states that the adhesive stamp may be cancelled by writing across stamp, signing on the
stamp, putting initials or any title on the stamp or by drawing a line across it or in any other effective
manner which has the effect of restricting its reuse.
Section 13 states that the Impressed stamp may be cancelled by writing or by signing on the face of the
stamp, normally the name of the purchaser and identity of stamp vendor is written on the face of the
stamp so that its reuse can be avoided.
Under Section 14, no second instrument chargeable with duty shall be written upon piece of stamp paper
upon which an instrument chargeable with duty has already been written.
However, on a single stamp paper, the other instrument may be written if:
a) Such instrument is not chargeable to separate stamp duty.
b) Such instrument is chargeable to separate stamp duty and such stamp duty has been duly paid.
c) The second instrument, just acknowledges, the receipt of goods or money, in respect of the
transaction relating to first instrument.
In Mahadeo Koeri v. Sheoraj Ram Teli, it was held that a stampmay be treated as having been
effectively cancelled by merely drawing a line across it.
But, in Hafiz Allah Baksh v. Dost Mohammed, it was held that if it is possible to use astamp a second
time, inspite of a line being drawn across it, there is no effectual cancellation. Again, thequestion
whether an adhesive stamp has been cancelled in an effectual manner has to be determined
withreference to the facts and circumstances of each case.
INSTRUMENTS STAMPED WITH IMPRESSED STAMPS HOW TO BE WRITTEN (WRITING ON STAMP PAPER)
Section 13 provides that every instrument written upon paper stamped with an impressed stamp shall be
written in such manner that the stamp may appear on the face of the instrument and cannot be used for
or applied to any other instrument.
upon which an instrument chargeable with duty has already been written. However, this shall not
prevent any endorsement which is duly stamped or is not chargeable with duty, being made upon any
instrument for the purpose of transferring any right created or recorded.
The object of Section 14 is to prevent a stamped paper which has been used for one instrument, from
being used for another instrument thereby avoiding payment of duty in respect of second instrument.
As per section 15, the instruments that contravene section 13 or 14 shall be considered as unstamped.

DENOTING DUTY – Section 16
HAR BAR AAP KO PRINCIPAL INSTURMENT SATH RAKHNE KI JAROORAT NAI HAI
When the duty is paid on principal instrument & the remaining instruments charged with the duty of Rs.
1 because all the instruments were executed for effecting a single transaction.
In this case, the parties always have a burden to carry the principal instrument along with the other
instruments in order to prove the payment of stamp duty.
So as per section 16 of Indian Stamp Act, to get a relief from carrying the principal instrument every
time, an application can be made to the collector to issue a certificate evidencing the payment of stamp
duty on the other instruments & for this purpose, a duty is required to be paid to the collector, which is
known as Denoting duty.
The same certificate by th
TIMING OF STAMPING
Instruments executed inside India: Section 17 provides that all instruments chargeable with duty and
executed by any person in India shall be stamped before or at the time of execution. The scope
of Section 17 is restricted to only instruments executed in India.
In the case of Rohini v. Fernandes, a promissory note was executed by‗A‘ and ‗B‘ and a stamp is
afterwards affixed and cancelled by ‗A‘ by again signing it, the stampinghas taken place subsequent to
the execution and hence, the provisions of Section 17 are notcomplied with.
As per section 18, If the instrument is created in a foreign country but deals with some property or the
right situated in India, the instrument shall be stamped within 3 months from the date of its first arrival
in India.
Where an instrument is brought to theCollector after the expiry of three months, the Collector may,
instead of declining to stamp it,validate it under Sections 41 and 42 if he is satisfied that the omission to
stamp in time was due to areasonable cause.
Any bill of exchange payable otherwise than on demand or promissory note drawn or made out of India
must be stamped and the stamp cancelled, before the first holder in India deals with the instrument,
i.e., presents the same for acceptance or payment, or endorses transfers or otherwise negotiates the
same in India.
e.g. : Agreement was made in America on 1st April 2009 related to transfer of Immovable property
situated in Chandigarh. The instrument was received in India on 1 st July 2009 the period of 3 months
shall be counted from 1st of July 2009.
As per section 19, the first holder in India who receives the bills of exchange or promissory note drawn
out of India, shall get the instrument stamped and cancel the stamp before he starts to deal (present,
endorse or negotiate) in the instrument. if stamp is not affixed or cancelled penalty will have to be paid.
VALUATION OF STAMP DUTY: Section 20 to 28
Where an instrument is chargeable with ad valorem duty (ad valorem duty means the duty as per the
value of transaction, most of the duties in respect of instruments are paid on advalorem basis) in respect
of any money expressed in foreign currency, such duty shall be calculated on the value of such money in
the currency of India according to the current rate of exchange on the day of the date of the instrument.
The Central Government may, from time to time, by notification in the Official Gazette, prescribe a rate
of exchange for the conversion of British or any foreign currency into the currency of India for the

purposes of calculating stamp-duty, and such rate shall be considered to be the current rate for the
purposes payment of stamp duty.
Stock and marketable securities how to be valued. — If an instrument is chargeable with ad valorem duty
in respect of any stock or of any marketable or other security, such duty shall be calculated on the value
of such stock or security according to the average price or the value of such stock on the day of the date
of the instrument (share transfer agreement).
(jis din share bechne ka agreement hua us din jo market main average price tha us par duty charge
karnge)
Effect of statement of rate of exchange or average price. — if an instrument contains a statement of

current rate of exchange, or average price, as the case may require, and is stamped in accordance with
such statement, it shall, so far as regards the subject-matter of such statement, be presumed, until the
contrary is proved, to be duly stamped.
(agar aap ne average price ya currency ka conversion ka rate agreement main hi lik diya to use sahi mana
jaega agar kuch aur sabi nai ho jata)
When a person sells mortgaged property to the mortgagee, the amount of debt together with the amount
of consideration of the sale of property shall be the value for purpose of payment of stamp duty.
For example: if loan was taken for Rs 20 lacs and a property of Rs 50 lacs was mortgaged with the
mortgagee, now the loan of Rs 10 lacs is remaining and the mortgagor decides to sell the mortgaged
property to the mortgagee for Rs 90 lacs, then the stamp duty will be paid on The outstanding debt of Rs
10 lacs + consideration of 90 lacs.
Amar sells a property to Bimal for rs 500, However at the time of sell the property was mortgaged to
Chaman against the loan of Rs 1000, and interest on such loan was outstanding of Rs 200, now the stamp
duty will be on consideration + outstandning debt which is 500 + 1000 + 200 = 1700 Rs.
When the mortgagor sells mortgaged property to the mortgagee, the stamp duty paid on mortgage shall
be adjusted from the stamp duty payable on sale. This benefit of reduction will be available if entire
mortgaged property is transferred and not any part of it.
For example: if loan was taken for Rs 20 lacs and a property of Rs 50 lacs was mortgaged with the
mortgagee, now the loan of Rs 10 lacs is remaining and the mortgagor decides to sell the mortgaged
property to the mortgagee for Rs 90 lacs, then the stamp duty will be paid on The outstanding debt of Rs
10 lacs + consideration of 90 lacs (consideration) and at the time of mortgage if 1 lac was paid as stamp
duty then the stamp duty of Rs 1 lac will be reduced from the stamp duty payable on sale.
In the Case of Re. Mirabai and Laxman and Ganpat, it was decided that, when the mortgaged property
is sold to the mortgagee along with other properties, the stamp duty alreadypaid is to be deducted from
the duty payable on the deed of sale. In order to entitle the mortgagee to adeduction of the duties
payable the entire property mortgaged should be transferred and not merely a portionof it.
CALCULATION OF STAMP DUTY IN CASE OF ANNUITY – Section 25
When an Instrument is executed to secure the payment of annuity, stamp duty is paid in the below
mentioned manner:
1) Where, the period of annuity is fixed, the stamp duty will be paid on the total amount of annuity
paid.
2) Where the period of annuity is not fixed, annuity period will be considered as 20 years and stamp
duty will be payable on the annuity paid in 20 years commencing from the date on which first
annuity payment became due.

3) Where the annuity period is subject to life of a person, stamp duty will be calculated on the basis
of annuity payable for the period of 12 years commencing from the date of 1 st payment. (Hint:
the period of 12 years will be calculated from the date on which the 1st annuity becomes due).
(basically we can consider annuity payment as payment of premium in order to receive annuity
benefits in future)
As per section 26 if the value of subject matter is not capable of being ascertaiened on the date
of its execution then in this case the maximum duty that can be charged for such instrument can
not exceed, the maximum duty which is paid on the instrument of same description on the day of
execution of the instrument.
(agar samaj nai aara ki kitni duty bharni hai to us din koi doosra instrument execute hua hai usi
description ka to us par jinni duty lagi hai utni lagai ja sakti hai maximum)
SECTION 27: FACTS AFFECTING THE DUTY TO BE SET FORTH IN THE INSTRUMENT
If any instrument is not property stamped, it is the duty of the parties to disclose this fact along with the
reasons for improper payment of the stamp duty. This situation normally arises when the property is
transferred for less then the market price. So we need mention in the instrument that due a particular
reason we have paid insufficient duty.
SECTION 28 : APPORTIONMENT OF STAMP DUTY
(Property agar chote chote hisse main transfer kar rahe ho to stamp duty bhi chote chote hisson
main hi lagegi)
 When a person purchases a property for one consideration but it is agreed that property will be
transferred in parts & consideration will also be paid in parts by different conveyances (sale
deeds). Now in this case the duty will be paid on advalorium basis for each separate part.
 When 2 or more persons jointly purchase property for for one consideration but it is agreed that
property will be transferred in parts & consideration will also be paid in parts. Now in this case
the duty will be paid on advalorium basis for each separate part
 If a person agrees to purchase a property but before the conveyance (execution of deed) transfers
the property to a sub – purchaser, now in this case duty will be charged on advalorium basis for
consideration paid by sub – purchase to the original seller.
 When a person agrees to buy (original buyer) a property form other person (original seller) but
before conveyance (sale deed) sells the property to some other person (sub purchaser), now the
original seller transfers the property to sub – purchaser in parts, stamp duty will be charged on
advalorium basis on consideration paid by sub – purchaser to original seller. Separate duty will be
paid on excess amount of consideration paid by the original purchaser to original seller for the
part of the property which the original purchaser will keep.
For example: if Ravi agrees to sell the property to Mahesh for Rs 10000 for 10 acres of land now
before the conveyance deed Mahesh sells 8 acres to Ram for 12000 now the stamp duty will be
paid on Rs 12000 which is paid by Ram to Ravi, now Mahesh has kept 2 acres for himself and will
pay Rs 2000 for 2 acres (as for 10 acres he was paying 10000) so here there will be stamp duty
payable on the excess amount of Rs 2000 also, and the rate of stamp duty shall not be less then
Rs 1.
WHO SHOULD PAY THE STAMP DUTY – Section 29
 In case of promissory notes, Bill of exchange - the person drawing, making or executing such
instrument.
 In case of conveyance or re-conveyance of mortgaged property - by the grantee.
 In case of share transfers, the transferee.
 In case of indurance other then fire insurance - the person issuing the policy.
 In case of lease - the lessee.
 In case of partition – the parties to partition.

 In case of sale deed – the purchaser of preperty.
 In case of exchange – the parties to exchange in equal share.
Instrument Lost in Transit
 - If any instrument is sent to collector and is lost or destroyed during the transmission, the person
sending the same shall not be liable for the loss or destruction.
 - The person who sends any instrument to the officer may require a copy of certificate at his own
expense from the officer regarding receipt of instrument.
Section 30: Obligation to Give Recepit:
Any person receiving any money exceeding twenty rupees in amount, or any bill of exchange, cheque or promissory
note for an amount exceeding twenty rupees, or receiving in satisfaction or part satisfaction of a debt any moveable
property exceeding twenty rupees in value, shall, on demand by the person paying or delivering such money, bill,
cheque, note or property, give a duly stamped receipt for the same.
Any person receiving or taking credit for any premium or consideration for any renewal of any contract of fire-
insurance, shall, within one month after receiving or taking credit for such premium or consideration, give a duly
stamped receipt for the same.
IMPOUNDING OF THE INSTRUMENTS AND COLLECTORS POWER TO STAMP THE IMPOUND INSTRUMENTS
– Section 33, 38 39 and 40
JIS INSTRUMENT PAR DUTY NAI BHARI SAHI,
WO HO JAEGA JABT JABT JABT!
If any instrument bears improper stamps, then the officers in whose possession the stamp comes while
discharging his duties (except polic officer) shall have the power to impound the same. As per section 38,
when such impounding is made the officers have to send the instrument to the collector along with the
certificates and the details of penalty charged. The affected parties may make an application to the
collector and if collector is satisfied that, the parties are given a hardship then collector may refund the
penalty, whole or in part.
As per section 39 and 40, If the collector believes, the above instrument is not subject to any stamp duty
then he may endorse this fact on such instrument along with his signature or if he believes, such
instrument is subject to a stamp duty in this case he may require the proper payment of stamp duty
along with penalty of Rs 5 or up to 10 times of the deficit stamp duty.
The collector can also refund the amount of penalty if the penalty was charged due to improper use of
the stamp papers bearing the impressed stamps. However, when such instrument has been impounded only
because it has been written in contravention of section 13 or section 14, the Collector may, if he thinks fit, remit the
whole penalty prescribed by this section.
The certificate given by the collector shall be a proof against the impounding of the instrument.
As per section 34 if any receipt chargeable with stamp duty is produced before the officer unstamped
then instead of impounding the receipt the officer shall ask the parties to replace the unstamped receipt
with the duly stamped receipt.
Que: Explain the difference between the powers of the Collector under Section 39 and the powers of the Controlling
Revenue Authority under Section 45 of Indian Stamp Act, 1899
Application to Chief Revenue Controllling Authority for a Relief: Section 45

Under Section 45, Where any penalty is paid under section 35 or section 40, the Chief Controlling Revenue-authority
may, upon application in writing made within one year from the date of the payment, refund such penalty wholly or
in part.
Where, in the opinion of the Chief Controlling Revenue-authority, stamp-duty in excess of that which is legally
chargeable has been charged and paid under section 35 or section 40, such authority may, upon application in
writing made within three months of the order charging the same, refund the excess.
So this action allows us to move to the authority in case the collector does not grant us any relief against impounding
or charges excess duties.
CONSEQUENCES: IF STAMP DUTY IS NOT DULY (PROPERLY) PAID:
1) Duly paid means proper payment of stamp duty according to the law.
2) As per section 35 of Stamp Act,If the instrument does not have or bear the stamps of correct
value as required by law, it is treated that instrument is not duty stamped & such instrument is
inadmissible as evidence for any purpose whatsoever by any person authorized by law (such as
judges or commissioners) or by the consent of the parties (such as arbitrators) to record evidence
or shall be acted upon or registered or authenticated by any such person as aforesaid or by any
public officerunless such instrument is duly stamped.
In the case of K. Narasimha R Vs Sai K Vashu, it was decided that,an insufficiently stamped
instrument is not an invalid document and it can be admitted in evidence on payment of penalty.
EXCEPTION TO THIS RULE:
In these cases, an instrument will not bear proper stamp duty but will be still considered as evidence.
1) Improperly stamped document can be considered as evidence in the criminal court.

2) A receipt can be taken or considered as an evidence of payment. The party will have to produce a
certificate given by the Collector regarding payment of the penalty.
3) If the instrument is executed by or on behalf of the Government.
4) Where a contract or agreement of any kind is affected by the correspondence consisting of two or
more letters and any one of the letters bears the proper stamp, the contract or agreement shall
be deemed to be duly stamped.
5) Where an unstamped document is admitted in proof of some collateral matter, it is certainly
admitted in evidence for that purpose.
(example: A business agreement and arbitration clause)
6) Any instrument shall be admitted as evidence on payment of duty with which the instrument is
chargeable or if the instrument is insufficiently stamped then on payment of of defecit dutyalong
with penalty of Rs 5 or 10 times of deficit duty, whichever is more.
In the case of Prasad v. Sorjoo Nonia, it was decided that, the words ‘shall not be admissible in evidence’ used in this
Section only means that the document shall not be made the basis of the decision or should not be relied upon to
support any finding.
In the case of n Ram Ratan v. Parmanand, it was decided that an unstamped partition deed cannot be used to
corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its term.
The words ‘for any purpose’ would in effect mean ‘for each and every purpose whatsoever without any exception
Que: Whether an insufficiently stamped instrument is a valid document ? Can it be admitted in evidence
on payment of penalty ?
Admission of Instruments
Section 36 provides that where an instrument has been admitted in evidence, such an admission shall not
(except as provided in Section 61) be called in question at any stage of the same suit or proceeding on
the ground that the instrument has not been duly stamped. Section 36 is mandatory (Guni Ram vS
Kodar).
Section 61 states that, if a Court accepts any instrument as evidence on payment of penalty or on
payment of stamp duty and then the order of such Court is challenged in the Superior court (by appeal or

by revision) and the superior court states that the instrument should have not been considered as
evidence or the superior court requires payment of higher penalty , then such superior court may ask the
collector to charge higher duties or impound the instrument which was previously accepted as evidence
by the inferior court. (in this case section 36 will not apply)
CONFUSION REGARDING PAYMENT OF DUTY
AGAR CONFUSION HAI STAMP DUTY PAYMENT MAIN,
TO EK BAR COLLECTOR SE MIL KAR APNA CONFUSION DOOR KAR LO
If any party has a confusion relating to payment of stamp duty on any instrument, then such party may
produce such instrument before the collector and may request the collector to determine the correct
amount of stamp duty on such instrument, the request has to be made with a fees of (50 paisa to Rs 5) as
decided by the collector.
When any instrument is brought to the collector, the collector is required to give his opinion about the
correct stamp duty, he cannot punish the parties for payment of improper stamp duty.
However the instrument has to be brought to the collector within a period of 1 month from the date of
its execution and within a period of 3 months from the date of its first receipt in India, if the instrument
was executed outside India.
INTIMATION TO COLLECTOR REGARDING INSUFFICIENT DUTY – Section 41
BHAI COLLECTOR KE BOLNE SE PAHLE AAP,
HI BATAA DO KI AAP NE INSUFFICIENT DUTY PAY KI HAI
A person may himself bring to the notice of the collector that any instrument is not properly stamped by
making an application and if on such application the collector is satisfied, that the instrument is not duly
stamped due to a mistake or accident, in this case the collector may collect the deficit amount and issue
a certificate stating that the instrument is stamped properly.
However such application to the collector must be made within a period of 1 year from the date of
execution of such instrument. If the instrument is produced after 1 year the collector may impound such
instrument.
If the instrument has been brought within 1 year and the collector has any doubt relating to chargeability
of stamp duty then the collector may refer the matter to the Chief Revenue controlling authority. If the
matter is not refereed to Chief Controlling revenue authority then decision of the collector shall be final.
ADMISSION OF IMPROPERLY STAMPED INSTRUMENT
Stamp Duty to Sahi Pay Kiya hai,
But Instrument Ko Describe Galat kiya ha!
Under Section 37, opportunity is given to a party, of getting a mistake rectified when a stamp of proper
amount,but of improper description has been used.
Under this section, the State Government may make rules providingthat, where an instrument has a
stamp of sufficient amount but of improper description, the instrument may,on payment of the duty with
which the stamp is chargeable, be certified to be duly stamped, and any instrumentso certified shall
then be deemed to have been duly stamped as from the date of its execution.
SECURITIES DEALT IN DEPOSITORY NOT LIABLE TO STAMP DUTY

If the securities are issued through depositories (NSDL and CDSL), if the security certificates are issued as
per Depositories Act, 1996, if the securities are transferred or the beneficial ownership in securities is
transferred through depository or the units of mutual funds are transferred, no stamp duty is required to
be paid as per section 8A of Indian Stamp Act.
The Amendments in the Indian Stamp Act, 1899 brought through the Finance Act 2019 and Rules
made under the Finance Act, 2019 have come into effect from 1st July, 2020 vide notifications
dated 30th March, 2020, so the provsions relating to stamps on share transfer including the electroic
shares will be chargeable to duty as per the below mentioned points:
 The stamp-duty on sale, transfer and issue of securities shall be collected on behalf of the State
Government by the collecting agents who then shall transfer the collected stamp-duty in the
account of the concerned State Government.
 In order to prevent multiple payment of duties, no stamp duty shall be collected by the States on
any transaction associated with a transaction on which the depository / stock exchange has been
authorised to collect the stamp duty.
 The collecting agents shall be the Stock Exchanges or authorized Clearing Corporations and the
Depositories.
 For all exchange based secondary market transactions in securities (through brokers), Stock
Exchanges shall collect the stamp duty, and for off-market transactions and initial issue of
securities happening in demat form, Depositories shall collect the stamp duty.
 The Central Government has also notified the Clearing Corporation of India Limited (CCIL) and the
Registrars to an Issue and/or Share Transfer Agents (RTI/STAs) to act as a collecting agent.
 The objective is to bring Over the Counter derivative transactions reported to CCIL and physical
space (non-demat) transactions in mutual funds handled through RTI/STAs under the scope of
stamp duty so as to avoid any tax arbitrage.
 The collecting agents shall within three weeks of the end of each month transfer the stampduty
collected to the respective State Government, under whose jurisdiction the residence of the
buyer is located and in case the buyer is located outside India, to the State Government having
the registered office of the trading member or broker of such buyer and in case where there is no
such trading member of the buyer, to the State Government having the registered office of the
participant.
 The collecting agent shall transfer the collected stamp-duty in the account of concerned State
Government with the Reserve Bank of India or any scheduled commercial bank.
 The collecting agent may deduct 0.2 per cent of the stamp-duty collected on behalf of the State
Government towards facilitation charges before transferring the same to such State Government.
 Mutual funds, being delivery-based transactions in securities, were supposed to pay the duty as
per various State Acts.
 All mutual fund transactions are now liable for stamp duty and the new system has only
standardized the charges across states and the manner of collection of stamp duty.

E-STAMPING
E-Stamping is a computer based application and a secured way of paying Non-Judicial stamp duty to the
Government. e-Stamping is currently operational in the states of Gujarat, Karnataka, NCR Delhi,
Maharashtra, Assam, Tamil Nadu, Rajasthan, Himachal Pradesh, Uttarakhand, and the union territories of
Dadra & Nagar Haveli, Daman & Diu and Pondicherry.
The prevailing system of physical stamp paper/franking is being replaced by E-stamping system. Stock
Holding Corporation of India Limited (SHCIL) has been promoted by All India Public Financial Institutions
and Insurance Majors. SHCIL is known for its security, integrity, widen network and focus on technology.
SHCIL is the only Central Record Keeping Agency (CRA) appointed by the Government of India. The CRA is
responsible for User Registration, and overall E-Stamping application operations and maintenance. CRA
will appoint ACC's who will issue certificates to the clients at their counters.
BENEFITS
 e-Stamp Certificate can be generated within minutes

 e-Stamp Certificate generated is tamper proof
 Authenticity of the e-Stamp certificate can be checked through the inquiry module
 e-Stamp Certificate generated has a Unique Identification Number
 Specific denomination is not required.
Allowances for Stamps: Section 49
Under section 49 of Indian Stamp Act 1899, application for allowances for spoiled stamps can be made to the
collector within the time limits as given in section 50 in the following cases:
(a) in case the stamp on the paper has been inadvertently or unintentionally spoiled or destroyed or in any manner
has become unfit, before the instrument or transaction could be written on such paper.
(b) in case an instrument is written wholly or in part on stamp paper but it has not been signed by all the parties or
any of the parties to the instrument.
(c) The bill of exchange or promisory notes have been drawn but not accepted or used.
(d) The stamped instrument has been found to be void or useless or any party to the instrument is dead.
(e) The instrument has been executed but afterwards it is discovered that it is unfit on account of any error or
mistake.
(f) If any person refuses to act on the instrument. For example a person refuses to make payment on bond.
(g) If any material party to the instrument does not sign or refuses to sign.
(h) The parties have used some other stamp paper of same value due to which the stamp paper already purchased
become useless.
(i) The parties have used some other stamp paper of same value, as the first stamp paper has been spoiled.
However it must be remembered that no legal proceeding should have been commenced to claim the refunds, then
only the collector will accept the application.
(the manner of making allowance is given in section 53)

Section 50: Time Limits for Claiming Allowances under Section 49
As per section 50 of Indian stamp Act 1899 , the time limit for claiming allowances under section 49 are as follows :
(a) In case instrument become useless due to any party to instrument refusing to act on the instrument .the
application will be made within 2months from the date of instrument.
(b) In case no instrument has been executed on the stamp paper in this case application has to be made within
6 months from the date on which the stamp was spoiled . (so instrument was not executed as stamp was
spoiled )
(c) In case the instrument has been executed by any of the parties but not by all the parties to the instrument
the application for refund will be made within 6 months from the date of instrument or if it is not dated then
within 6 months from the date when the instrument was first or alone executed.
(d) In case spoiled stamp has been signed outside india ,application wil be made within 6 months of receiving
the instrument within india .
(e) In case parties purchased stamp but due to unavoidable circumstances use the stamp and have substituted
the stamp by purchasing the other stamps of same value and instrument is written on new stamp in this case
application to collector will be made within 6 months of execution of substituted stamp.
These are the limits for claiming allowances under section 49.
Section 51 - Allowance in case of printed Section 53 - Allowance for spoiled or misused stamps
forms no longer required by Corporations how to be made.
The Chief Controlling Revenue-authority 2 [or In any case in which allowance is made for spoiled or
the Collector if empowered by the Chief misused stamps, the Collector may give in place of such
Controlling Revenueauthority in this behalf] stamp:
may, without limit of time, make allowance for
stamped papers used for printed forms of a.other stamps of the same description and value, or
instruments 3 [by any banker or] by any
incorporated company or other body b. if required and he thinks fit, stamps of any other
corporate, if for any sufficient reason such description to the same amount in value, or
forms have ceased to be required by the said 3
[banker], company or body corporate: provided c. at his discretion, the same value in money, deducting
that such authority is satisfied that the duty in 1[ten naye paise] for each rupee or fraction of a rupee.
respect of such stamped papers has been duly
paid.
Section 52 – Allowances For Misused stamps
Under section 52 of Indian Stamp Act 1899, allowances for misuse of stamps may be claimed if:
(a) Stamps of wrong description have been used.

(b) Greater stamp duty has been paid then the required stamp duty.
(c) If the stamp duty has been paid on instrument which was not chargeable to stamp duty.
(d) If the stamp duty has been useless under section 15 of Indian stamp Act 1899 on account of contravention of
section 13.
In all these cases an application can be made to collector within 6 months from the date of instrument or if there
is no date on the instrument then within 6 months from the date on which the instrument was first or alone
executed.
The collector may give following remedies:

(a) Re-stamping with proper stamp duty.
(b) Give allowances as spoiled stamp u/s 49. Inrespect of misused or useless stamps.
Section 54 of the Act enables a person to obtain refund of the value of stamps purchased by him, if he has no
immediate use of stamp.
Under this section, when any person is having stamp or stamps which have not been spoiled or rendered unfit or
useless for the purpose intended, but for which he has no immediate use, the Collector shall repay to such person
the value of such stamp or stamps in money, deducting ten naya paise for each rupee or portion of a rupee, upon
such person delivering up the same to be cancelled and proving to the Collector’s satisfaction:
(a) that such stamp or stamps were purchased by such person with a bona fide intention to use them; and
(b) that he has paid the full price thereof; and
(c) application to the collector is made within 6 months from the date of purchase of the stamps.
However, in case the application is made by the licensed vendor the collector may refund the duty without
deducting any amount.
Section 55 is intended to relieve companies renewing debentures issued by them from the liability to pay stamp
duty on both the original and the renewed debenture.
As per this section, when any duly stamped debenture is renewed by the issue of a new debenture in the same
terms, the Collector shall, upon application made within one month, repay to the person issuing such debenture, the
value of the stamp on the original or on the new debenture whichever shall be less.
However the original debenture is produced before the Collector and cancelled by him in such manner as the State
Government may direct.
A debenture shall be deemed to be renewed in the same terms within the meaning of this section notwithstanding
the following changes:
(a) the issue of two or more debentures in place of one original debenture, the total amount secured being the
same;
(b) the issue of one debenture in place of two or more original debentures, the total amount secured being the
same;
(c) the substitution of the name of the holder at the time of renewal for the name of the original holder; and
NOTES
1. If any instrument was charged to duty and penalty but such penalty has been relieved by the
court or any other body or by the collector, in this case, such body shall also issue a certificate or
endorsement, regarding release of such penalty and on such release the instrument will be
admissible as evidence.
2. If the collector is satisfied that any party intentionally paid insufficient stamp duty to evade the
payment of stamp duty in this case the collector can start a criminal prosecution.
3. If the person who was not liable to pay stamp duty pays the stamp duty or the penalty in such
case the person may recover the amount of stamp duty or penalty from the person who is liable
to pay it and the collector may also issue a certificate in this regard.
4. Sections 73 to 78 deals with supplemental provisions regarding inspection ofrelevant registers,
books, records, etc; to enter the premises for that purpose, powers of Government toframe rules

for the sale and supply of stamps and to make rules generally to carry out the provisions of
theAct.
TAKING COGNIZANCE – Section 70
A prosecution shall not be commenced in respect of any offence punishable under this Act without the
permission of the Collector or such other officer as the State Government generally or the Collector
specially, authorises in that behalf.
The Chief Controlling Revenue Authority, or any officer generally or specially authorised by it in this
behalf, may stay any such prosecution or compound any such offence.
The amount of any such composition shall be recoverable in the manner provided by under the Act.
SECTION 47: Collection of Duty by Collector
- If any bill of exchange or promissory note chargeable with duty not exceeding 10 naya paisa, is
presented to collector, unstamped, the collector may charge the stamp duty and collect the money or
deduct such amount from the instrument.
Que: Explain the time limit set up under the Indian Stamp Act, 1899 for making an application for relief in respect of
impressed spoiled stamps.
REFERENCE AND REVISION
Section 56-61 deals with reference and revision.
If the collector has doubt regarding the payment of correct stamp duty, he may refer the case to Chief
Revenue Controlling Authority.
The Chief Revenue Controlling Authority will send its decision to collector and the collector shall charge
the duty.
The Chief Revenue Controlling Authority may also refer the case to the High Court and the case shall be
decided by not less than 3 judges by vote of majority.
If High Court is not satisfied with information provided, the High Court may send back the case to the
Chief Revenue Controlling Authority for further feed back. The High Court shall decide the question
raised and give its judgement to the authority
As per Section – 60 any subordinate court may also refer the case to High Court but through proper
channel. The court may on its own or on application of collector, may consider, the order of lower court
regarding an instrument duly stamped or not. The High Court, if not satisfied with the decision of lower
court, it may call for such instrument or may also even impound it and the decision of High Court shall
be given to the collector and the lower court.
- The collector has the power to start prosecution, if the collector is of the opinion that the party was
intending to evade the payment of stamp duty. This power of collector is notwithstanding the decision of
lower court.
SECTION 62-69: These Sections deal with Penalties
If any person draws an unduly stamped instrument including improper stamped proxy form. The collector
will make enquiry and pass decision of penalty.
Other Penalties:
1. Share warrant not stamped: Rs 500

2. Failure to cancel Adhesive stamps: Rs 100
3. if Facts affecting the stamp duty are not disclosed under section 27: Fine up to Rs 5000 (matter
will go in criminal court in this case – section 64)

4. Adhesive stamp not cancelled: Rs 100
5. Executes Stamp with intention of defrauding the Government: Rs 5000
6. Refuses to give receipt : Rs 100
7. Making post dated bills to defraud reccvenue: fine up to Rs 1000.
8. Fails to Stamp the Insurance Policy or does not stamp the preminum receipt within one month of
receiving the amount of premium or of insurance : Rs 200
As per section 70, for offences under this Act, Magistrate whose powers are not less than those of a
Magistrate of the second class, shall try any offence under this Act.
Taking Cognizance
Under the stamp Act, no case shall be started or repealed without the permission of the Collector or any
other officer who is authorised by the State Government.
The Chief Revenue Controlling Authority or the officer Authorised by the State Government may make
compromises under the act or can apply for the stay of suit.

CHAPTER: 15
REGISTRATION ACT, 1908
INTRODUCTION
The word Registration in simple sense means making an entry into a Register, maintained by the
Registrar. The Registrar is appointed by the Government. Generally the process of registration takes
place after the process of stamping.
Instrument is a piece of pap er creating & defining obligations.
Registration is the process of recording a document with an assigned officer and to keep it as public
record. Following are the objectives of registration of documents under the Registration Act, 1908:
1. Registration of a document ensures proper preservation and record of such document. It is

particularly important in the case of immovable properties because the history of rights need to
be established.
2. Documents which are required to be registered act as valid evidence in a court of law.
Documents which need to be compulsorily registered are not admissible in court if they are not
registered.
3. Registered documents assist in the prevention of fraud.
4. Registration gives people information regarding legal rights and obligations arising or affecting
a particular property.
IMPORTANCE OF REGISTRATION ACT FOR THE COMPANY SECRETARY
As a company secretary is an in charge for maintaining all the records of the properties of the company,
he must know the documents whose registration is compulsory & the documents whose registration is
optional.
DOCUMENTS CAN BE CLASSIFIED INTO TWO CATEGORIES
Documents of which registration is

compulsory (Sec. 17).
Documents of which registration is

optional (Sec. 18).

DOCUMENTS OF WHICH REGISTRATION IS COMPULSORY (SEC. 17 (I)):
1. Instruments relating to gift of immovable property of Rs. 100 or upwards.

Any agreement (instrument) which has the effect of transferring an immoveable property of 100 or
more than Rs. 100 by way of a gift requires a compulsory registration.
In case of KalyanaSundaram V/s. Karuappa it was decided that the instruments of gift become
effective from the date on which the instrument was executed (signed). Even if the registration is
done after the death of the donor, the gift is valid. Neither death nor the express revocation by the
donor, is a ground for refusing registration, provided other conditions are complied with (donor has
signed the gift deed and the donee has accepted the gift)
Delay in registration of a gift does not postpone its operation. Section 123, Transfer of Property Act,
1882 merely requires that donor should have signed the deed of gift. Hence a gift deed can be
registered even if the donor does not agree to its registration.
A transfer of property as a gift is valid even if it is given to the person with whom the donor has
illicit relation if the person (donee) accepts such gift.
QUE: Yash signed a deed of gift in favour of Raja. If Yash does not agree to its registration, will the
gift deed be registered ? Explain, whether delay in registration of a gift deed will postpone its
operation ?
2. Non-testamentary instrument :
It means the instruments other then will, thorugh which any property is transferred. The
Instruments which are not will are Non-testamentary instrument. Any other instrument which is
made with consideration & creates, declares, assigns, limit or extinguished, transfers any right,
immovable property of Rs. 100 or upwards requires compulsory registration. e.g. : Mortgage deed,
Rental agreement of more than 12 months, sales deed etc.
Whether a document requires registration under this point, depends upon the fact wheter the
instrument change legal relation between the parties.
The words ―create‖, ―assign‖, ―limit‖ or ―extinguish‖ suggests a change of legal relation to a
property by an expression of will through the document. It suggests declaration of will.
In the case of Bageshwari Charan v. Jagarnath Kuare, it was decided that, the expression
―declare‖ used in Section 17 has also to be interpreted on the same lines. It does not mean a only
declaration of fact, but there has to be (in writing) a change of relation.
Whether an instrument requires registration under Section 17(1)(b) depends upon whether it changes
in legal relation in respect of some property.
For purposes of Section 17(1)(b) a difference should be drawn between
(i) a right in aproperty and
(ii) whether such rights relate to the ownership of property and are in the nature of powers or
options which every owner is free to exercise in dealing with his property in a particular way.
The latter (point ii) may be described as rights in relation to the property, but strictly speaking, they
are not rights in or to property.
(matlab yeh right jo hai, ki aap apni property main freely exercise kar sakte hai par wo reality main
rights nai hai, kyunki registration ke liye rights wo hai jo legal relation kisi property main change
karta hai)
Generally, when a right in or to property is assigned, created, declared, limited or extinguished,

then there must be a definite change of legal relation to the property.

3. A Non testamentary instrument which acknowledge (accept) receipt of monetary consideration in
respect of an immovable property of Rs. 100 or upwards.
To be registrable under this clause a receipt must satisfy the following two conditions:
(i) it must be the receipt of a consideration; and
(ii) it must on the face of it be an acknowledgement of payment or some consideration on account of the
creation, declaration, assignment, limitation or extinction of an interest of the value of Rs. 100 or
upwards in immovable property.
The receipt must be such as to be linked with the creation etc. of a right. A mere acknowledgement of
payment is not compulsorily registrable.
4. Non testamentary instrument transferring the immovable property in favour of any person by the
order of the court where the value of Immovable property of Rs. 100 or upwards.
Transfer through decree or order of a court or of any award (arbitral awars) when such decree or order
or award operates to create, declare, etc. any interest of the value of Rs. 100 and upwards in immovable
property, requires registration.
However , the State Government is empowered to exempt any leases executed which do not exceed five
years and the annual rents reserved which do not exceed 50 rupees, from the operation of this Sub-
section.
5. If the document was not registered at the time of sale u/s. 53(a) of Transfer of Property Act, 1882
then later on registration of such a document will be compulsory.
EXCEPTION OF SEC. 17(I) DOCUMENTS OF WHICH NO REGISTRATION IS REQUIRED:
1. Compromise agreement or th deed essence of whih is composition.

2. Shares of a company.
3. Debentures of a company at the time of issue.
4. A decree or the order of Court
5. Transfer of Debenture does not require registration.
6. Order of the Court related to immovable property (testamentary transfer)
7. Any grant of immovable property from the government.
8. Any partition of the property made by the Revenue (Collector) officer.
9. A loan granted under land improvement act does not require registration.
10. Any loan under Agriculturist Act.
11. An order made under Charitable Endowment Act, 1890, vesting any property in the treasurer
of charitable endowmwnt.
12. A certificate of sale granted by civil or revenue officer for sale of any property on account of
an auction.
13. Lease for a period of up to 1 year i.e. 12 months.
DOCUMENTS OF WHICH REGISTRATION IS OPTIONAL: (SEC. 18)
1. All the documents covered under exception to 17 (i).

2. Transfer of Immovable Property of less than Rs. 100.
3. Gift of immovable property of less than Rs. 100.
4. Transfer of immovable property by the order of the court of less than Rs. 100.
5. Lease of the period not exceeding period 12 months.
6. Wills (Vasiyat)
7. Instrument relating to transfer of moveabe property.
8. Instruments which acknowledge Receipt of money for transfer of immovable property of less
than Rs. 100.

Note:
A lease for one year containing an option to the tenant to renew for a further period of one year or any
otherterm is not a lease for a term exceeding one year, and does not require registration under this
clause.
UnderSection 107 of the Transfer of Property Act, a lease of one year or reserving a yearly rent can be
made onlyby a registered instrument.
But where the lease is only for one year with a reserved rent for the period forwhich it has been granted,
viz. one year, it does not require registration – it can be interpreted as per Registration Act, 1908.
Cases under Section 107 of Transfer of Property Act, and Section 17(1)(d) of Registration Act
A comparison of both these Sections would show that a lease of immovable property is compulsory
registrable:
(a) if it is from year to year; or
(b) if it is for a term exceeding one year; or
(c) if it reserves a yearly rent.
If a lease is of a very high value but is neither from year to year, nor for any term exceeding one year,
nor reserving a yearly rent, it does not require registration under Section 17(1)(d).
Que: Write any four exceptions to the registration of non-testamentary documents under Sub-section (2) of Section
17 of Registration Act.
TIME LIMIT FOR PRESENTATION: (To present before Registrar)
The registration has to be done within 4 months from the date of execution of doecument, additional
period of 4 months is granted in case of necessity on payment of higher fees.
If the documents are executed outside India then it must be registered within 4 months from the date of
its first arrival in India. (no extension of 4 months is given)
If delay is due to the act of Court than such delay shall not be considered.
A document executed outside India is not valid unless it is registered in India (Nainsukhdasv.
Gowardhandas)
Unstamped document
If the document is not sufficiently stamped its presentation is still good presentation though penalty
under the Stamp Act can be levied (Mahaliram v. Upendra Nath).
RE-REGISTRATION
If Registration was done by a person who was not authorised to present the documents for registration,
in this case collector may order for re-registration of the document.
SEVERAL EXECUTANTS
Under Section 24 a document executed by several persons at different times may be presented for
registration and re-registration within four months from the date of each execution.
The registration is ―partial‖ in regard to each party.
PLACE OF REGISTRATION
REGISTRATION OF IMMOVABLE PROPERTY: SECTION 28

Any document that we discussed in section 17 + if that document relates to immovable property
must be registered:
a) In the office of the Sub-Registrar under whose jurisdiction whole or some part of the property is
situated.
b) If it is difficult to ascertain the Sub-Registrar in whose jurisdiction the whole or some part is
situated then registration can be made in any Sub-Registrar on the basis of assumption or belief.
WHOLE OR SOME PART OF THE PROPERTY
If One person is residing in Sangli and he transfers a property to another person residing in Kolhapur &
the property is also in Kolhapur. Now the person who transfers the property can ask the person who has
purchased the property to accept one of the properties situated in Sangli, so that the Registration of
both the properties can be done at Sangli. Samllness of the area must not suggest the existance of fraud.
In the case of Harendra Lal Roy Chowdhuri v. Hari Dasi Debi, it was decided that, Registration
elsewhere done shall be treated invalid.
REGISTRATION OF OTHER DOCUMENTS
Other Documents can be registered in the office of any Sub-Registrar within whose sub-district the all
the persons who executed the document are residing or with any office of the sub registrar under same
state government.
REGISTRATION OF ORDER OF THE COURT
If the order of the court relates to an immovable property it shall be registered in the office of the Sub-
Registrar under whose jurisdiction the court is situated.
If the decree or order does not affect immovable property, it may be presented for registration in the
office of any other Sub-Registrar under the State Government at whose office all persons claiming under
the decree or order desire it to be registered.
[Note : Property situated anywhere in India may be registered in New Delhi].
Note: Under Section 31, registration is permitted in cases of necessity under extra-ordinary
circumstances, at the residence of the executant.
THE PERSON WHO CAN PRESENT A DOCUMENT FOR REGISTRATION ARE
As Per section 32 following persons are authorised to present the document for Registration:

Parties themsleves, in case of
decree parties claiming under
decree
Legal representative may also

present a document for
registration.
Agents who are authorized

by the Special Power of
Attorney.
It is immaterial whether the registration is compulsory or optional; but, if it is presented for
registration by a person other than a party not mentioned in Section 32, such presentation is wholly
inoperative and the registration of such a document is void (Kishore Chandra Singh v. Ganesh
Prashad Bhagat)
For the purpose of Section 32, a special power of attorney is required as provided under Section 33. A
general power of attorney will not do. Section 33 requires that a power of attorney, in order to be
recognised as giving authority to the agent to get the document registered, should be executed before
and then authenticated by the Registrar within whose district or sub-district the principal resides.
ENQUIRY BEFORE REGISTRATION BY THE REGISTRAR
As per section 34, for registering a document the persons executing such document or their
representatives, assigns orauthorised agents must appear before the registering officer within the time
allowed for presentation.
The Registrar may make following enquiries at the time of Registration :

If the documents are
The Registrar may ask for presented by agent, the
Stamp Duty Certificate. Registrar may ask for Special
Power of Attorney.
ENQUIRY BY REGISTRAR
The Registrar may ask for

The Registrar may raise the the actual consideration.
question of witness.
PRESENTING WILL & AUTHORITY WHO CAN ACCEPT THE WILL
1. The Donor or after his death his executor or any person who claims to be his executor in any
other manner, (the person appointed by deceased donor through his will as executor) or the
agent of donor or after the death of the donor, the donee (the person to whom properties are
given by will, or the person who will adopt the will (the person for whom will is made) or the
adoptive son (son for whom will is made), may present the will for registration.
2. A Will, will be registered by the Registrar on being satisfied with the signature of donor and other
particular as mentioned in the will, if the will is presented by donee or any other person (not by
the donor).
3. The person who makes the will is referred as donor or testator.
DEPOSIT OF WILL
Any testator may, either personally or by duly authorised agent, deposit with any Registrar his will in a
sealed cover along with the name of the testator and of his agent, if any.
On receiving such documents, if the registrar is satisfied he shall record the deposit of will in his
Registrar Book No. 5, and shall note the date, time, month, etc. of such receipt of will and shall then put
and keep the sealed cover (will) in his fire-proof box.
The testator may also withdraw the will which is deposited, by applying for the withdraw of the will and
the Registrar shall deliver it accordingly.
REGISTERED DOCUMENTS WHEN OPERATIVE
1. As per section 47 of Registration of Document Act, 1908, The Registered document gets a legal
effect from the date of execution / signing & not from the date of registration.
2. In case two registered documents are made for transferring the same property the document
which was executed first will get first priority on the property.
Case: K.J. Nathan V/s. S.V. MarutiRai.
[Note: Registered documents will always have priority over the oral agreements.]
EFFECT OF NON-REGISTRATION OF THE DOCUMENT WHICH ARE REQUIRED TO BE REGISTERED

There are following consequences which the parties will have to suffer if the Registration is not done:
It will not give No ownership

any power to will be
the transferee transferred by
to acquire the an unregistered
property. document.
It will not be
It won't affect
taken as
the immovable
evidence in any
property which
suit related to
is mentioned in
immovable
the document.
property.
However an unregistered instrument under section 53A of Transfer of Property Act, 1882 will be
considered as evidence.
In the case of K. Narasimha Rao v. Sai Vishnu, it was decided that, though unstamped instrument is
inadmissible as an evidence even for collateral purposes, but if an unregistered instrument is also
unstamped and if it is subsequently stamped as per the provisions of Indian Stamp Act, in this case such
an instrument can be considered as evidence for collatral purposes even though it continues to be
unregistered, but in this case the actual terms of the transaction will not be considered.
So if a dipute relates to settlement deed which was insufficienty stamed and also unregistered in this
case the Court directed for impounding of the instrument which was not complied by the defendant so in
this case the Court did not accept the instrument as an evidence even for the collateral purpose, and
application if any filed for admission of such document for collateral purpose will be dismissed.
DUTIES AND POWERS OF REGISTERING OFFICER
Duties:
1. It is a first duty of Registering officer to maintain the following Books :
BOOKS
Book A Book B
[In all the registrar offices] [In the office of Registrar]
[Registrar + Sub-Registrar] [Only Registrar]

 Book A:
Book 1: Documents relating to transfer of immovable property against Consideration.
Book 2: Reasons for refusal to register.
Book 3 : Register of Wills.
Book 4: Miscellaneous Registers.
 Book B: Register of Deposit of Wills.
PROCEDURE ON ADMISSION TO REGISTRATION:
Procedure of Registration:
1. Execution of Agreement,
2. Payment of Stamp Duty,
3. Presenting the documents before Registrar for Registration :
a) Witness must be present,
b) Parties or their agents must remain present,
c) Agents must have Special Power of Attorney,
d) Registrar will verify the signature,
e) All the parties must have the proof of identity.
If Registrar is satisfied he will issue certificate of Registration. If he is not satisfied he will refuse the
registration and the reasons for refusal will be entered in Book 2.
When the copy of any document (other then decree of the Court or order of the Court) is sent to the
Registrar, following documents must also be sent or endorsed with the document:
a) The signature and name of the peson who has admitted that the document has been executed
and if the execution of the document is accepted by some agent or assign or representative of
the any person then name and signature of such person.
b) The signature and name of every person who has been examined in relation to such document
under any provision of Registration Act, 1908.
c) The payment of money or delievery of goods which is made in the presence of registering officer
in relation to the execution of the document and any acceptance of consideration whole in part
made in the presence of Registrar.
If any person who admits the execution of the document refuses to give any of the above documents or
endosements (statements) the resitering officer shall regiter it, and shall also mention on the instrument
that above endorsements were refused.
CERTIFICATE OF REGISTRATION
After all the formalities of registration are fulfilled, the reigstrering officer gives a certificate containing
the word ―Registered‖ along with the number and page of the book in which such registered document is
copied. The Certificate of Registration is a prima proof that all the requirements of registration are
properly followed & entry will be made in Book 1 and also the registrar has followed all the process given
in law with regard to registration.
PROCEDURE AFTER REGISTRATION

1. After Registration is done the Sub-Registrar shall forward a Notice of Registration to other sub-
registrars & the registrar of the district.
2. The sub-registrar or the registrar in whose office the registration has been done will send a copy
of map to other sub registrars within the same district & the registrar will make an entry in Book
No. 1.
3. Every Registrar and sub registrar who receives the notice of registration shal make an entry in
book 1.
REFUSAL TO REGISTER BY THE SUB-REGISTRAR –Section 71

1. If the registrar refuses the registration he will make an entry in Book No. 2 along with the reasons
for refusal to register.
2. If the registrar refuses registration on the ground that property is not located in his jurisdiction
than no entry is required to be made in the register.
3. If a document does not require registration under this act, such documents shall not be registered
by the registering officer.
4. On application made by any person executing or claiming under the document, shall without
payment and unnecessary delay, the Sub registrar shall give him a copy of the reasons of refusal
which are recorded in the register.
5. Registration cannot be refused on the ground of undervaluation for stamp or any other
unnecessary reason. (Mulla (1998), page 308)
Que: Explain the reasons for refusal to register a document by sub-registrar under the Registration Act,
1908.
APPEAL TO THE REGISTER

If sub registrar refuses to register a document the aggrieved party may make an appeal to the
Register within 30 days from the order of refusal.
APPEAL TO THE REGISTER
Registrar will provide relief Registrar will not provide relief
He will order Sub-Registrar He will not order the Sub-

To register the document. Registrar to register the
Document.
PROCEDURE BEFORE THE REGISTRAR
If Registrar receives the appeal, he will consider the following factors:
a) He will see whether the documents have been properly executed.

b) All the requirements of law i.e. signature of the parties, witnesses, stamp duty etc. are
followed.
If the Registrar is satisfied that order of refusal was not proper he will order the Sub-registrar for
registration of the documents.
The Aggrieved party will move to the court within 30 days of order of Refusal by the Registrar (x + 30 +
30).
Exemption of Certain Documents Executed by or In fovor of the Government
(a) Documents issued, received or attested by any officer engaged in making a settlement or revision or
settlement of land-revenue, and which form part of the records of such settlement; or
(b) documents and maps issued, received or authenticated by any officer engaged on behalf of
government in making or revising the survey of any land, and which form part of the record of such
survey; or
(c) documents which, under any law for the time being in force, are filed periodically in any revenue-
office by patwaris or other officers charged with the preparation of village records; or

(d) sanads, inam, title-deeds and other documents purporting to be or to evidence grants or assignments
by government of land or of any interest in land; or
(e) notice given under section 74 or section 76 of the Bombay Land-Revenue Code, 1879, or
relinquishment of occupancy by occupants, or of alienated land by holders of such land.

CHAPTER: 16
RIGHT TO INFORMATION, 2005
In the year 1973, in the case of State of Rajasthan V/s. Raj Narayan, the Supreme Court decided that,
the government as the agent of people must share it‘s information with public and should keep very few
secrets.
In the case of RP Ltd. V/s. Indian Express Newspaper, the court decided that Right to Information, is
the part of Right of life and personnel liberty as contained in article 21 of Constitution of India, as liberty
involves the liberty to obtain and receive information.
Right to information is also the part of article – 19 (1) (a) of constitution of India which deals with
freedom of speech or expression. It means a person can express himself in a better manner if he has all
the information.
FEATURES OF RTI ACT, 2005
The Act applies to whole of India. The act applies to public authorities. Under the Act PIO and APIO will
be appointed [Public information officer and assistant public information officer].
Some information are exempt from disclosures. All the citizens of India have a right of to information.
PUBLIC AUTHORITY
An authority created by An authority created by law Authorities created by

constitution passed by parliament or state notifications issued by
legislature. government of India.
ICSI, ICAI, RBI, IRDA, LIC, Railways, Coal Ministry.
TRAI.
RECORD
Document Image & its Manuscript Fascimile File Material Microfilm Microfitche
reproduction copy produced
by
computer
INFORMATION
Record Contracts Document Reports Data Paper Samples Logbooks Press

of release
materials.
Whether in physical / electronic form.
RIGHT TO INFORMATION
The term right to information includes :
Taking of notes, Obtain Inspection of Inspection of Obtaining

copies, extracts, information work. records and samples of the
certified copies through documents materials.
of the records or electronic
documents device
maintained by
public authority.
THIRD PARTY
When a person other than citizen who asks for information including public authorities, such person is
called as third party. (basically third party is defined because sometimes an information which is to be
provided may relate to a third party and may be considered as confidential by the third party and in case
any third party is involved, the information is to be provided in 40 days. Public Authority is included here
as sometimes a public authority may consider an information to be confidential.
SECTION 4 OBLIGATIONS OF PUBLIC AUTHORITY
Within a period 120 days from the date of enactment of this act, every public authorityshall maintain
and publish following records :-
Functions of the Power and Duties The budget of How the subsidy
public authority of the employees such public programmes of the
of the public authority government are
authority implemented.
What rules the Salaries to the
authority follows for employer of
discharging the public authority.
functions.
Documents that Name and Committees on Decision making The manner in

are held under designation of task forces process of the which the public
the control of public created by public authority. participates in
public authority information public authority. framing of
officer policies of public
authority
Que: Section 4 of the Right to Information Act, 2005 has entrusted certain obligations on (b) the public
authorities. Discuss any eight obligations.
PUBLIC INFORMATION OFFICER
Each Public Authority shall
In all administrative units [district level] In the sub-divisional or sub-district [Tahsil]

level
Designate an officer to be known as public Designate an officer as

information officer.
Assistant public information officer.
SECTION – 5 : NO REASONS FOR OBTAINING INFORMATION
JO OFFICER DETA HAI INFORMATION,
WOHI KAHLATA HAI PIO
The person who makes application for obtaining information under this Act, to the public authority, he is
not required to give the reason for obtaining the information. As receiving information is the right of
citizen.

REQUEST FOR OBTAINING INFORMATION
JAB CHAIHIYE INFORMATION, CHALE JAO PIO KE PAAS!
An application for obtaining information shall be made in writing along with the prescribed fees to the
public information officer. The application may also be given in electronic form.
The required information shall be provided by the public information officer within a period of 48 hrs. if
such information relates to personal liberty of any person from the date of making application.
For example, in case an old man wants to obtain information about his provident fund dues to be
claimed from the Government, it may be considered as relating to life and personal liberty.
A Person, in order to get treatment of his son in the Government Hospital wanted to know wheter he was
eligible to get the subsidy reserved for the people of below poverty line, the Court held that the
information was relating to life and personal liberty.
If the information demanded is available with Assistant public information officer then within a period of
5 days from the date of receiving the application, the application to be forwarded to the assistant public
information officer and such officer shall provide the information within 30 days from the date of
receiving the application.
If no communication is made by the public officer, then it shall be deemed that the application has been
rejected by the public information officer.
If any third party is involved in the application then information will be provided in 40 days.
Partial Information
As a general rule the PIO must provide the full and relevant information to the applicant, however if the
below mentioned conditions are satisfied then the PIO may provide partial information:
a) When the case relates to a situation, when only relevant part of the information can be disclosed.
b) The PIO shall disclose the reasons for providing partial information.
c) Name and designation of PIO, providing the partial information shall be disclosed to the applicant.
d) The details of appellate Authority with whom the decision of PIO may be challenged shall also be
disclosed to the applicant.
e) Fees to be charged for providing partial information shall be disclosed.
DUTIES OF PUBLIC INFORMATION OFFICER
The applications should be made to the public information officer in writing if any party is not able to
write the application then public information officer shall assist such party in writing the application.
If the information is not with public information officer but with some other authority then PIO shall
transfer the application to such authority within 5 days and inform the applicant accordingly.
The PIO shall provide the requested information within 30 days or the PIO may reject the application by
providing reasons in writing.
So if the application is forwarded to some other APIO than the information will be given within 35 days (5
days + 30 days).
The PIO may also take the help of the other PIO to provide the required information.
If PIO rejects the application then :
He has to give reasons Within how much time an The details of appellate

appeal can be preferred authority where appeal can
against the decision of PIO. be preferred.
The PIO must provide the information which is full and relevant.
If the PIO provides partial information following conditions must be fulfilled :-
The case must Fees to be PIO shall disclose With who the Name and
relate to a charged must be the reasons for designation of designation of
situation only specified. providing partial PIO can be the officer
when relevant information. challenged providing the
part of should also be information has
information can informed by PIO to be provided
be disclosed. to the applicant. to the applicant.
If any information is supplied by a third party or is treated as confidential by the third party. In this case
the PIO should send a notice to third party within a period of 5 days from the date of receiving the
application and such third party should make its representation within next 10 days
It means if PIO has received any information from third party or if the information received from the
third party is considered as confidential by third party, in this case, if PIO receives a request for
providing such information then PIO will send a notice to third party within 5 days of receiving the
application and the third party can make its representation in next 10 days.
In the case of Central Board of Secondary Education vs. Aditya Bandopadhyay, the Supreme Court
decided that:
1. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national
development, or to destroy the peace, tranquillity and harmony among its citizens.
2. It should not be converted into a tool of oppression or creating fear amongst honest officials trying to
do their duty.
3. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their
time in collecting and furnishing information to applicants instead of discharging their regular duties.
4. The fear of penalties under the RTI Act and the pressure of the authorities under the RTI Act should
not lead to employees of a public authorities prioritising ‗information providing‘, at the cost of their
normal and regular duties
5. Where the information demanded is not a part of the record of a public authority, and where such
information is not required to be maintained under any law or the rules or regulations of the public
authority, the Act does not put an obligation on the public authority, to collect such non-available
information and then provide it to an applicant.
6. RTI Act provides access to all information that is available and existing.
A public authority is also not required to furnish information which require drawing of inferences and/or making of
assumptions. It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish
any ‘opinion’ or ‘advice’ to an applicant.
EXEMPTION FROM DISCLOSURE – Section 8
The following kinds of information are exempt from disclosure under this act and hence they will not be
disclosed :-
Information that affects :
Sovereignty & Relations with Information that [in Trade secrets,

Integrity of India. Foreign State cities] that insights a confidential

person to commit information of any
offence. business copyrights.
Strategic, Scientific or economic interest of The information which affects life or personal
the country. safety of a person.
If the information causes a breach to the Information that is forbidden by the Court.
privilege of parliament or state legislature.
Information received in Information that may
confidence from a foreign affect process of
state. investigation.
Cabinet papers, records kept bythe Information that affects privacy of a person
ministers. cannot be shared unless a larger public
interest justifies it.
However when the ministers have taken a
decision, the decision has to be shared with
the public along with reasons for such
decision.
Que: State the types of information, other than those exempted information in Section 8. a public
authority is not under an obligation to furnish to an applicant under Right to Information Act, 2005.
Section 9 :The information which will infringe copyright of some other person, such information will not
be shared.
SECTION 10 : PARTIAL DISCLOSURE
AAP KO CHAHIYE POORI JANKARI,
PAR HUM AAP KO ADHURI HI DENGE, JANKARI
If any person makes a demand for an information, the part of which is exempt from disclosure and the
remaining part can be disclosed and such remaining can be separated from exempted part.
In this case partial disclosure will made [of information].
The public authorities to which this act does not apply :
Intelligence RAW CID CBI BSF [Border Police C.R.P.F.

bureau Security [State [Central
Force] Government Reserve
Police
force]
Assam Rifles CISF [Central Revenue Narcotics ITBP [Ino-

Industrial Intelligence Control Board. Tibetian Border
Security Force] Department Police]
However the above public authorities are required to disclose the information relating to corruption and
human rights violation.

If the information relates to human rights violation then such information will be given an application of
Chief Information Commissioner or state information commissioner within a period of 45 days from the
date of request.
CENTRAL INFORMATION COMMISSION
This commission is formed by Central Government by issuing a notification in the official gazette.
This commission comprises of :
Chief Information Commissioner [+] Not exceeding 10 central information

commissioners.
Chief Information Commissioner is the head of Central Information Commission and he supervises the
activities of all the central information commissioners.
The Chief Information Commissioner and other Central Information Commissioners are appointed by a
committee which comprises of:
Prime Minister Leader of Opposition Any Cabinet Minister

nominated by Prime
Minister.
Qualifications of Chief Information Commissione & Commissioners
Eminence in Public Should not hold any Knowledge of law, Not a member of
life place of profit. social science Parliament or State
Journalism, Legislature.
Management
Every Information Commissioner shall hold office for such term as may be prescribed by the Central
Government or till he attains the age of sixty-five years whichever is earlier and shall not be eligible for
reappointment however he shall be, on vacating his office be eligible for appointment as the Chief
Information Commissioner.
If Information Commissioner is appointed as the Chief Information Commissioner, his term of office shall
not be more than five years in aggregate as the Information Commissioner and the Chief Information
Commissioner.
The Chief Information Commissioner or an Information Commissioner shall before joining his office make
an oth in respect of his duties as given in schedule 1, before the President or some other person
appointed by President.
The Chief Information Commissioner or an Information Commissioner may by writing to President,

anytime resign from his office, however he may also be removed under section 14.
Allownances, salary and terms and conditions will be as fixed by Central Government, which may also be
changed but it must not be disadvantageous to the commissioners.
The Central Government will also provide officers to the commissioners who will help the commissioners
in efficient discharge of their functions.
State Information Commission (SIC):
The State Information Commission will be constituted by the State Government through a Gazette
notification.
The State Information Commission consists of one State Chief Information Commissioner (SCIC) and not
more than 10, State Information Commissioners (SIC).

These shall be appointed by the Governor on the recommendations of a committee consisting of the
Chief Minister who is the Chairman of the committee.
Other members include the Leader of the Opposition in the Legislative Assembly and one Cabinet
Minister nominated by the Chief Minister.
The qualifications for appointment as SCIC/SIC shall be the same as that for Central Commissioners. The
salary of the State Chief Information Commissioner will be the same as that of an Election Commissioner.
Every State Information Commissioner shall hold office for such term as may be prescribed by the Central
Government or till he attains the age of sixty-five years, whichever is earlier, and shall not be eligible
for reappointment as such State Information Commissioner.
However every State Information Commissioner shall, on vacating his office will be eligible for
appointment as the State Chief Information Commissioner.
If State Information Commissioner is appointed as the State Chief Information Commissioner, his term of
office shall not be more than five years in aggregate as the Information Commissioner and the State
Chief Information Commissioner.
The State Chief Information Commissioner or a State Information Commissioner shall before joining his
office make an oth in respect of his duties as given in schedule 1, before the Governonr of State or some
other person appointed by Governor.
The State Chief Information Commissioner or a State Information Commissioner may by writing to
President, anytime resign from his office, however he may also be removed under section 17.
The salaries and allowances payable to and other terms and conditions of service of the State Chief
Information Commissioner and the State Information Commissioners shall be such as may be prescribed
by the Central Government.
The State Government will also provide officers to the commissioners who will help the commissioners in
efficient discharge of their functions.
Power to make rules by appropriate Government
Section 27 of the Right to Information Act states that the appropriate Government may, by notification
in the Official Gazette, make rules to carry out the provisions of this Act.
In particular, and without prejudice to the generality of the foregoing power, such rules may provide for
all or any of the following matters, namely:—
(i) the cost of the medium or print cost price of the materials to be disseminated under section 4(4);
(ii) the fee payable under section 6(1);
(iii) the fee payable under section 7(1) & section 7(5);
(iv) the term of office of the Chief Information Commissioner and Information Commissioners under sub-
sections (1) and (2) of section 13 and the State Chief Information Commissioner and State Information
Commissioners under sub-sections (1) and (2) of section 16;
(v) the salaries, allowances and other terms and conditions of service of the Chief Information
Commissioner and the Information Commissioners under sub-section (5) of section 13 and the State Chief
Information Commissioner and the State Information Commissioners under sub-section (5) of section 16;
(vi) the salaries and allowances payable to and the terms and conditions of service of the officers and
other employees under sub-section (6) of section 13 and sub-section (6) of section 16;

(vii) the procedure to be adopted by the Central Information Commission or State Information
Commission, as the case may be, in deciding the appeals under sub-section (10) of section 19; and
(viii) any other matter which is required to be, or may be, prescribed.
Powers of Information Commissioner
The Central and State Information Commission have the power as well as duty to receive complaint from
any person:
- Who could not file application, as PIO was not appointed

- Whose application was rejected.
- Who was not supplied the information within specified time.
- Who believes information provided to him is false, misleading or incomplete
- Who believes unreasonable fees is demanded for providing the information.
If the commission is satisfied with the complaint, it will accept the application and start the enquiry, at
the time of making enquiry the commission will have same powers as are vested in the civil court under
the code of civil procedure, 1908.
On such enquiry no document can be with held on any ground.
APPELLATE AUTHORITIES
BHAI AGAR PIO KE FAISLE SE HO NIRASH,
JAO APPELLATE AUTHORITIES KE PAAS
1. If any party is not satisfied with the decision given by PIO or if the PIO does not provide the required
information. Appeal can be preferred to the senior rank officer of the PIO in the same public authority
within a period of 30 days of receiving the decision of PIO or within 30 days of the expiry of 30 days from
the date on which application was made to PIO.
2. The first appeal shall be disposed of within a period of 30 days from the date of accepting the appeal
and 15 days extension can be granted 2 times by recording reasons in writing.
3 .If the party is not satisfied with the decision given in the first appeal then within a period of 90 days
from the date of decision or within 90 days from the date within which the decision should have been
made, an appeal can be preferred to the Central / State information commission.
4. During the appeal the burden of proof will be a PIO, that information was not provided on justified
grounds.
5. the first appellate authority (senior rank officer ) and the second appellate authority may condone the
delay.
QUE: Explain the provisions for appeal under the Right to Information Act, 2005.
PENALTIES
As per section 20, If the Public Information Officer:
- Fails to provide the requested information.

- Provides incomplete, false or misleading information.
- Unreasonably rejects the application
- Obstructs the process of providing information
- Destroys the records and information
- Fails to accept the application.

In all the above cases the PIO will be subject to a penalty of Rs 250 per day and up to Rs 25000/- and the
penalty will be imposed by Central/State Information commission. Disciplinary action may also be taken
against such PIO by CIC/ SIC.
Que: State the acts for which Public Information Officer may be punished under Section 20 of Right to
Information Act, 2005.
JURISDICTION OF THE COURTS
No lower court shall have any jurisdiction on the order that are made under this Act.
ROLE OF STATE GOVERNMENT OR CENTRAL GOVERNMENT UNDER THE ACT
- Develop educational programme for creating awareness about the Act and specially for
disadvantageous class of people.
- Encourage the public authorities to provide the educational programmes.
- Encourage the public Authorities to provide timely information.
- To appoint PIO
- Encourage Public Authorities to maintain records.
- Guide the public about the procedure to obtain information
- Maintain a list of all the PIO‘s
Questions And Answers
Summarised Notes for Right to Information Act, 2005
In the case of State of Rajasthan VS Raj Narayan, the Supreme court decided that the government
servant of people must share maximum information and must keep very few secrets.
In the case of RP Ltd VS Indian Express ,the Supreme Court decided Right to have information is covered
under article 21 of the act, it is was also decided that Right to information is also the part of article
19(6)(a) (freedom of speech and expression)
Record means file, document ,facsimile, manuscript, data, whether stored in physical or electronic
form.
Information means –Record, document, microfile, microfiche, logbooks, sample of books.
Right to information means a right to take notes, extract, inspect the records to check the sample of
work ,to obtain documents ,whether in physical or electronic form.
Third party means a person who is not citizen of India or any public authority of India.
Authority created by constitution or by any law passed by parliament or by Government Notification.
Every Public authority at district level shall have a PIO and sub divisional level shall have an APIO
The application to obtain information shall be made in concerned PIO in reserved form along with
prescribed fees .No reasons are to be given for obtaining information .
If the information is not available with PIO he may within 5 days of receiving the application can forward
the application form APIO
The information has to be provided within 30 days of receiving the application and if the information is
available with APIO 5 days can be obtained in the period of 30 days.
If no information is provided within 30 days then it shall be deemed that the application has been
rejected.

If the PIO rejects any application he has to inform the reasons of rejection and designation and the
authority to which appeal can be made and same details are to be provided if partial information was
given to the applicant .The information that may affect soverignity and integrity of India friendly
relation with foreign state the information received in foreign state ,the information that insights the
person to commit offences are exempt from being disclosed.
The public authorities like BSF, RAW, CBI, ITBP, Public, police department ,CISF ,CRPF are kept outside
the scope of the act but these authorities have to share the information in relation to corruption of
human rights violation.
If PIO reject the application appeal can be made to the senior rank officer in that public authority if no
relief is received from the senior rank officer or second appeal can be made to CIC or SIC.
The Central Government has formed a Central information commission that comprises of one chief
information commissioner and five other central information commissioner the State Government have
to be formed SIC which will consist of chief information commissioner the state government have to form
SIC which will consist of chief information commissioner and not exceed to state information
commissioner.
All the public authorities will be required to maintain all the records within 130 days from the date of
commencement of this act.
The PIO does not provide information, it obstructs the process of providing information /provides false
/misc information he can be subject to punishment or an enquiry by CIC/SIC.
No lower court can exercise jurisdiction on the matters which have been covered in the act .

CHAPTER: 17
INFORMATION TECHNOLOGY ACT, 2000
This law is based on UNCITRAL‘S model law on information technology. Consdiering the changes in the IT
Environment of the Country this Act is amended from time to time.
DENA THA ELECTRONIC DOCUMENTS KO LEGAL RECOGNITION,
ISLIYE YE AA GAYA KANOON IN OUR NATION
OBJECTIVES - Information Technology Act, 2000, was enacted to make, in the main, three kinds of provisions, as
under:
To grant legal recognition to To provide the facility of To amend the provisions of

the transactions that are online filing of documents Indian Contract Act, RBI Act,
done through electronic data with government agencies. Indian Evidence Act, Banker‘s
inter-change. Book Evidence Act.
So as to give legal recognition

to electronic records.
 The Documents to which this act does not apply :
Negotiable Power of Trust Deed Will Documents

Instruments Attorney relating to
[other than cash transfer of
and cheque) immoveable
property.
(iska matlab yeh sare documents agar electronic form main hai to unhe valid nai mana jaega) these
documents are given in schedule 1 of IT Act, 2000.
Que: Discuss the types and importance of document or transactions mentioned in the first schedule of Information
Technology Act, 2000
IMPORTANT DEFINITIONS UNDER THE ACT
Access: It means gaining an entry in a computer system or computer network or giving instructions or
communications with the help of logical, arthmetical or memory functions to resources of computer or
computer network or computer resources.
Addressee: the person to whom the origionator wants to receive the electroinc record but does not
include an intermediary.
ASYMMETRIC CRYPTO SYSTEM

It means a system of secured key pair which has a private key attached with the public key, through
which digital signatures are verified.
COMMUNICATION DEVICE
It means cell-phone, personal digital assistance and includes combination of both which is used to
communicate, send or transmit any text, audio, video or image.
“Computer” means any electronic, magnetic, optical or other high-speed data processing device or
system which performs logical, arithmetic, and memory functions, by manipulations of electronic,
magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or
communication facilities which are connected or related to the computer in a computer system or
computer network.
(ek electronic, magnetic, optical ya koi bhi high speed data process karne wala system ya device jo
logical ya arithmetic functions nibhata hai electronic megnatic ya optical impuses main ched chad kar ke
aur input output, computer software ko bhi include karta hai jo computer se related hai ya computer
system ya computer network main hai)
Computer System : It means a device or collection of devices, which can include input and output
support devices but does not include calculator which are not programmable, and such devices are
capable of being used with external files which contain computer programmes, electroninc instructions
input and output data which performs logical, arithmetic data storage, communication and other
functions.
(device ya bahut sare devices ka collection jis main input aur ouput support devices ho sakte hai + wo
device external files bhi use kar sakta hai jis main computer programme ya electroinc input ho sakte hai
+ wo logical arithmetical aur data storage ke functions nibhata hai)
CYBER CAFE
It is a place that offers an access to interneset in the ordinary course of its business.
COMPUTER NETWORK
It means inter – connection of one or more computers through :-
a) Use of Satelites, microwaves, terrestrial lines or any other communication media.

b) Terminal or complex consisting of two or more computers, whether interconnection is continuously
maintained or not.
DIGITAL SIGNATURE
It means authentication of any electronic record by subscriber by means of electronic signature which is
equivalent to a written signature.
INTERMEDIARY
It means a person or an agency, who on behalf of any other person :
Stores any record Transmits any records Receives records

Or provides any other
service with resepct to
the recorods.
The term intermediary also includes telecom service providers, network service provider, web-hosting
service provider, on line auction sites.
ORIGINATOR

Aperson who sends, generates, transfers, stores, transmits any electronic message or causes any
electronic message to be sent, generated or transferred.
(jo insan khud se message create karta hai, store karta, send karta hai, ya kisi aur se send karwata hai)
“Private Key” mea
ns the key of a key pair, used to create a digital signature. [Section 2(1)(zc)]
“Public key” means the key of a key pair, used to verify a digital signature and listed in the Digital
Signature Certificate.
Verify: it means to determine, wheter the digital signature which was affixed by use of the private key
matches with the public Key of the subscriber and also making sure that the electronic record on which
digital signatures were affixed is not altered after the affixing of digital signature and its integrity is
maintained.
SECURED SYSTEM
It means a hardware or software or any computer which satisfies the below mentioned conditions :-
It is reasonably safe Complies with Provides a reliability Performs intended

from unauthorized security procedures. functions.
access
DIGITAL SIGNATURES AND ELECTRONIC SIGNATURES
SECTION – 3 & SECTION – 3A.
ELECTONICALLY KISI JAGAH PAR AUTHENTCATE KARNA,
DIGITAL SIGNATURE ELECTRONIC SIGNATURE KA HISSA HAI
―Electronic signature‖ means authentication of any electronic record by a subscriber by means of the
electronic technique specified in the Second Schedule and includes digital signature.[Section 2(1)(ta)]
―Electronic Signature Certificate‖ means an Electronic Signature Certificate issued under section 35 and
includes Digital Signature Certificate.[Section 2(1)(tb)]
Digital Signature is a method of authentication of electronic record by use of asymmetric crypto system
which transfers an electronic record to another electronic record for the purpose of its verification by a
public key.
Electronic Signature : A person may also authenticate an electronic record by using electronic
signatures which is reliable. The electronic signature will be considered as reliable if the following
conditions are satisfied :-
Signature creation data Any alteration made to It fulfills the other

and signature electronic signature is requirements of the Act.
authentication data are detectable
linked to signatory and the
control of such data is also
with the signatory [the
person who signs
electronically]
Central Government may prescribe the procedure for the purpose of ascertaining whether electronic
signature is that of the person by whom it is purported to have been affixed or authenticated.

Electronic Signature Digital Signature
It includes digital signature It is authentication through the use of assemytric
crypto system
Its Scope is wide It has a narrow scope
Authentication of electronic record can be done Only secured digital key pairs are used’
throghany electronic device or software
Electronic Signatures may or may not be It is always encrypted.
encrypted
E-GOVERNANCE
Use of information technology in day to day functions of the government, is referred as E-commerce.
Private transactions
Thus, Section 4 of the Information Technology Act, practically equates electronic record with a manual
or typed or printed record.
Section 5 deals with legal recognition of electronic signatures. It states that where any law provides that
information or any other matter shall be authenticated by affixing the signature or any document shall
be signed or bear the signature of any person, then, in spite of anything contained in such law, such
requirement shall be deemed to have been satisfied, if such information or matter is authenticated by
means of electronic signature affixed in such manner as may be prescribed by the Central Government.
It may be noted that ―signed‖, with its grammatical variations and cognate expressions, shall, with
reference to a person, mean affixing of his hand written signature or any mark on any document and the
expression ―signature‖ shall be interpreted accordingly.
It may be pointed out that ―information‖, as defined in Section 2(1) (v) of the Act, includes data, text,
images, sound, voice, codes, computer programmes, software and data-bases or micro-film or computer-
generated ―micro-fiche‖.
The act also recognizes electronic signatures :
If any law provides :
Filing of any document or Grant of any license or Receipt of money or

form with the approval or registration by payment in any manner.
government. the government. (Section 6)
All the above acts can be done electronically.
As per Section 6A, for providing above services the government may provide a service provider through a
notification in official gazette.The service provider may be an individual, firm, body corporate.
Section 7 of the act allows retention of any document in electronic form for any specific period.
Section 7A of the, act states that if any law requires the audit of the documents, record or information
then such provision of audit shall also apply on the documents that are maintained in e-form.
SUBORDINATE LEGISLATION
Laws relating to subordinate legislation, may also be published in the Official Gazette or the electronic
Gazette, and the date of its first publication in either of the two Gazette shall be deemed to be the date
of publication. (Section 8)
But the provisions summarised above shall not give any right to any person to Compel the Government
agency that the Government Agency shall accept, issue etc. any document in electronic form or effect
any monetary transaction in electronic form. (Section 9)
SECTION 10A : E-CONTRACTS

Invitation to offer, offer, acceptance, revocation of the offer, contracts shall not be unenforceable
merely on the ground that, it was created through electronic means.
ATTRIBUTION AND DISPATCH OF ELECTRONIC RECORD
In case of electronic records the maker of record remains behind the curtain, so it becomes necessary to
make provisions for attribution. An electronic record is attributed to the originator.
Broadly, the ―originator‖ is the person at whose instance it was sent in the following cases -
Originator himself sends The electronic record was If the electronic record
an electronic record. sent by any person who was sent by an
was acting on behalf of information system
originator. programmed by originator
–Section 11.
In all the above cases it will be considered that electronic record is attributable to the originator.
ACKNOWLEDGEMENT BY RECIPIENT
The person to whom an electronic record has been sent may acknowledge it‘s receipt by
Making a Communication OR By any conduct through which the sender

comes to know, that recipient has received
the electronic record – Section 12.
DATE AND TIME OF OFFER
After these provisions, there follows a provision which is of considerable significance for the law of
contracts.
The date of offer and the date of acceptance are crucial, in determining whether and which contract has
come into existence. The two terminal points - despatch and receipt, are dealt with, in detail.
Subject to agreement between the parties, the dispatch of an electronic record occurs, when it enters a
―computer resource‖ outside the control of the originator. [Section 13]
―Computer resource‖, as defined in Section 2 (k), means a computer, computer system, computer
network, data, computer database or software.
TIME OF RECEIPT - SECTION 13
When the addressee [offeree] has designated When the addressee has not designated any
a computer resource. computer resource.
When the electronic record [offer] enters the When the electronic record is retrieved by
designated computer resource. the addressee
However in this case, the receipt is deemed

to be occurred when the electronic record
enters the computer resource of addressee.
SECURED ELECTRONIC RECORD – SECTION 14
The Central Government is required to prescribe the security procedures under this Act, having regard to
commercial circumstances.
When the procedure specified by central government has been applied to an electronic record, then such
record shall be deemed to be a secured electronic record.
A digital signature shall be deemed to be secured if :-

Electronic Signature creation data is The signature creation data is allowed
under exclusive control of signatory. as per the manner given in section -15.
CERTIFYING AUTHORITY – SECTION 17- 34
It is an authority which has been licensed by the government to issue digital signatures.
While issuing digital signature it shall reliably identify the person who is applying for digital signatures
and verify their legal capacity to get the digital signatures.
To control and regulate the certifying authority, the central government has appointed, the controller of
certifying authority.
PROCEDURE TO OBTAIN ELECTRONIC SIGNATURE CERTIFICATE – SECTION 35 - 39
1) Any person may make an application in the form prescribed by central government to certifying
authority for obtaining digital signatures.
2) Along with the application a certificate practice statement should be attached. [CPS means a
statement that certifies a person applying for digital signature is entitled to get a digital signature].
3) After receiving the application the certifying authority will make enquiries and verify the certificate
practice statement, and if Certifying Authority is satisfied it will issue a digital signature certificate.
4) If Certifying Authority, is not satisfied with the application, it will reject the application by recording
reasons in writing and after providing an opportunity of being heard to the applicant.
PENALTIES AND ADJUDICATION
As per section 43, any person without the permission of the owner of a computer or the person incharge
of the computer or computer system :-
a) Accesses or secures access to a computer.

b) Downloads or copies or extracts, data.
c) Introduces a computer contaminant or virus.
d) Damages the computer.
e) Disrupts the working of a computer system.
f) Provides assistance to any person to get an access of computer system.
g) Denies access to the owner of computer system.
h) Takes services of any other to get an access to computer system.
i) Destroys, deletes or alters any information residing in the computer system.
j) Steals, conceals or destroys the information residing in computer system.
Such person shall be liable to pay damages by way of compensation to the owner of computer system.
Howeve if the above acts are done with dishonest intention or fraudulently, then such person shall be
punishable as per section 66, with imprisonment of 3 years or with fine which may extend to Rs 5 lacs or
both.
COMPUTER CONTAMINANT
A set of instruction or programme that modifies or destroys the data residing in a computer.
COMPUTER DATABASE
It means :-
Facts Information Stored Text Image Audio Video,

which are
stored in
computer

Which have been prepared in a formalized manner by the computer or have been produced by the
computer or computer newrok with the intention of use by the computer or computer network.
COMPUTER VIRUS
It means a set of computer instruction, information, data or programme, that destroys, degrades,
damages or adversely affects performance any computer resource or attaches itself to another computer
resource.
Both virus and contaminant are same but virus has the ability of attaching itself with the other computer
resource.
SECTION 43A :- COMPENSATION FOR FAILURE TO PROTECT THE DATA
When a body corporate that holds or possess any data which is personal or sensitive and such data is in
the control of such body corporate and if such body corporate is negligent in maintaining ―reasonable
security procedures‖ due to which wrongful loss or wrongful gain happens to any person, such body
corporate shall be liable to pay damages to the affected person.
Body Corporate means a firm, sole proprietorship or any association of person, company.
Reasonable security procedure means the procedures or precautions designed to protect the information
when such procedure is required to be followed as per the requirement of any law or agreement.
A person who fails to file a return with central government, as required under this act shall be liable to
pay a fine, not exceeding Rs. 10,000/-
ADJUDICATING OFFICER – SECTION 46
Appointed by Central Government
For passing of decisions
In relation to ―whether a person has committed an offence under the act or not or under any rules or
regulations which are made under the Act or any order or Direction given by the Central Government.
Such adjudicating may impose a penalty or award compensation under the provisions of this act.
While passing decisions the adjudicating officer has to consider the following factors :-
The amount of gain or unfair The amount of loss to a party The repetitive nature of
advantage to a party. offence.
Any party who is not satisfied with the decision of adjudicating officer or controller of certifying
authority may prefer an appeal to the appellate tribunal created by Central Government under the
provisions of this act, with a period of 45 days from the date of receiving the order of appellate
authority or controller of certifying authority.
The appellate authority hears both the parties and passes a decision.
If any party is not satisfied with the decision given by the appellate authority within a period of 60 days
of receiving the copy of decision of appellate authority, may appeal to the high court.
OFFENCE UNDER THE ACT
Section 65 - Tempering with computer source Computer related offence :

documents.
If any persons destroys, conceals or alters any a) Dishonestly receiving a computer
computers source code or destroys or alters any source code.
computer system or computer network. [Source b) Device identity theft.
code means, list of programmes, commands c) Acting by personation.

design and layout programme] is, punishable with d) Violation of privacy.
imprisonment upto 3 years or fine upto Rs. e) Cyber terrorism.
2,00,000 or both f) Publishing or transmitting sexually
Section 66. Hacking with the computer system: explicit [unlawful] act.
Whoever with the intent to cause or causes g) Misrepresentation.
wrongful loss or damage to the public or any h) Publication for fraudulent purpose.
person destroys or deletes or alters any Jail upto 3 years or fine upto Rs. 5,00,000 or
information residing in a computer resource or both.
diminishes its value or utility or affects it
injuriously by any means, commits hacking.
Whoever commits hacking shall be punished with

imprisonment up to three years, or with fine
which may extend up to two lakh rupees, or with
both.
Explanation: The section tells about the hacking

activity..
QUE:If any person dishonestly or fraudulently does any act under section 43 of Information Technology
Act, 2000 without the permission of the owner or any other person, who is incharge of a computer,
computer system network, he shall be punished. What is the punishment for this offence ? In brief,
discuss the offences listed in The IT Act relating to computer and computer system network.
LIABILITY OF NETWORK SERVICE PROVIDER

CYBER OFFENCE AGAR HUA TO YEH BOLEGA,
MALA MAHITI NAI HOTA, MUJHE TO PATA HI NAI THA,
MAIN TO SIRF NETWORK DE RAHA THA
Network service provider is an intermediary through which we connect to the internet system.
An intermediary should not be liable under this act, for any third party information or data made
available by it or for contraventions which was done without its knowledge.
If it proves that :-
It took reasonable care and exercised all The contravention was not in its knowledge.
diligence. [+]
Que: Discuss the liability of network service providers in Information Technology Act, 2000.
APPELLATE TRIBUNALS
Section 48-62 deals with the establishment of Appellate Tribunals.
The TelecomDisputes Settlement and Appellate Tribunal established under section 14 of the Telecom
RegulatoryAuthority of India Act, 1997 , shall, be theAppellate Tribunal for the purposes of this Act and
the saidAppellate Tribunal shall exercise the jurisdiction, powers and authority conferred on it by or
under this Act.
The Central Government shall specify, by notification the matters and places in relation to which
theAppellate Tribunal may exercise jurisdiction.
In the same Chapter, there are provisions regarding the compounding of offences and recovery of
penalties.(Sections 63 and 64).
Any person aggrieved by an order of the Controller of Certifying Authorities or of the adjudicator can
appealto the Appellate Tribunal, within 45 days. (Section 57)

Any person aggrieved by ―any decision or order‖ of the Appellate Tribunal may appeal to the High
Court,within 60 days. Jurisdiction of Civil Courts is barred, in respect of any matter which an
adjudicating officer orthe Appellate Tribunal has power to determine.
Acting to Protect Soverginity and Integrity of India – Section 69
Section 69 of the Act, authorises Central Government or State Government or its authorised officers to
issue necessary orders and carry out invstigations and also to issue directions, after recording reasons in
writing to appropriate Agencies for monitoring, intercepting or decrypting any computer source if they
are of the opinion that any person may act against the soverginity or integrity of India or can incite
people to commit offences through the use of information technology.
This act also has extra territorial jurisdiction if any person has committed offence under the act from
outside India but affects the computer resource, computer network or computer system in India – Section
– 75.
Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data
or Information) Rules, 2011
Data privacy and protection in today‘s world has become a matter of Individual rights. The right to
privacy is recognized as a fundamental right under Article 21 of the Indian constitution which was held in
the historic verdict by the Supreme Court in the case of Justice KS Puttaswamy v. Union of India. India‘s
digital transformation requires the law to transform as well. Information Technology Act, 2000 (‗the IT
Act‘) and Information Technology (Reasonable security practices and procedures and sensitive personal
data or information) Rules, 2011, commonly known as SPDI Rules, is one of the key legislations in this
area.
Under Section 87(2) read with Section 43 – A of the IT Act, ―SPDI Rules‖ were issued on 13th of April 2011
which govern the Sensitive Personal Data or information and apply to body corporate or any person
located in India.
The rules define sensitive personal data under the Rule 3 that the following types of data or information
shall be considered as personal and sensitive:
o Passwords,
o Bank Account details,
o Credit/debit card details,
o Present and past health records,
o Sexual orientation,
o Biometric data.
An information provider is a person who provides information to the body corporate and under these
rules, he has certain rights over the sensitive personal information, this information cannot be collected
without the providers‘ consent and he or she has the right to abstain from giving consent and can
withdraw the consent by writing to the body corporate.
i. Privacy Policy
Rule 4 requires a body corporate to provide a privacy policy on their website, which is easily accessible,
provides for the type and purpose of personal, sensitive personal information collected and used, and
Reasonable security practices and procedures.
ii. Consent

Rule 5 requires that prior to the collection of sensitive personal data, the body corporate must obtain
consent, either in writing or through fax regarding the purpose of usage before collection of such
information.
iii. Collection Limitation
Rule 5 (2) requires that a body corporate should only collect sensitive personal data if it is connected to
a lawful purpose and is considered necessary for that purpose.
iv. Notice
Rule 5(3) requires that while collecting information directly from an individual, the body corporate must
provide the following information:
o The fact that information is being collected
o The purpose for which the information is being collected
o The intended recipients of the information
o The name and address of the agency that is collecting the information
o The name and address of the agency that will retain the information.
v. Retention Limitation
Rule 5(4) requires that body corporate must retain sensitive personal data only for as long as it takes to
fulfil the stated purpose or otherwise required under law.
vi. Purpose Limitation
Rule 5(5) requires that information must be used for the purpose that it was collected for.
vii. Right to Access and Correct:
Rule 5(6) requires a body corporate to provide individuals with the ability to review the information they
have provided and access and correct their personal or sensitive personal information.
viii. Right to ‗Opt Out‘ and Withdraw Consent
Rule 5(7) requires that the individual must be provided with the option of ‗opting out‘ of providing data
or information sought by the body corporate. Also, they must have the right to withdraw consent at any
point of time.
ix. Grievance Officer
Rule 5(9) requires that body corporate must designate a grievance officer for redressal of grievances,
details of which must be posted on the body corporate‘s website and grievances must be addressed
within a month of receipt.
x. Disclosure with Consent, Prohibition on Publishing and Further Disclosure
Rule 6 requires that body corporate must have consent before disclosing sensitive personal data to any
third person or party, except in the case with Government agencies for the purpose of verification of
identity, prevention, detection, investigation, on receipt of a written request. Also, the body corporate
or any person on its behalf shall not publish the sensitive personal information and the third party
receiving the sensitive personal information from body corporate or any person on its behalf shall not
disclose it further.
xi. Requirements for Transfer of Sensitive Personal Data

Rule 7 requires that body corporate may transfer sensitive personal data into another jurisdiction only if
the country ensures the same level of protection and may be allowed only if it is necessary for the
performance of the lawful contract between the body corporate or any person on its behalf and provider
of information or where such person has consented to data transfer.
xii. Security of Information
Rule 8 requires that the body corporate must secure information in accordance with the ISO 27001
standard or any other best practices notified by Central Government, which must be audited annually or
when the body corporate undertakes a significant up gradation of its process and computer resource.
2. Development & Law of Data Protection
In year 2022, the Central Government has formulated a draft Bill, titled ‗The Digital Personal Data
Protection Bill, 2022‘. The purpose of the Bill is to provide for the procedure for processing of personal
data. This Bill will establish the legal framework on protection of personal data. The Bill aims to protect
personal data in a manner that recognizes the right of individuals.
PAST EXAM QUESTIONS
Que: Discuss briefly the grounds for opposing the foreign awards?
Que: What are documentary evidence under Indian Evidence Act?
Que: Discuss the liability of Corporate Body for data protection under information technology act, 2000.
Que: Explain the rule of Audi Altereum Partel under Administrative Laws?
Que: Discuss the provisions for challenging the appointment of Arbitrator?
Que: Manoj died on August 3rd, 2016, before a right to institute suit accrued, leaving behind a minor son
aged 15 years, decide, when the period of limitation begin?
Que: Mohan and Sohan are jointly tried for the murder of Rohan. It is proved that Mohansaid, Sohan and I
murdered Rohan. Can the court consider the effect of this Confession as against Sohan ? Give reasons.
(5 marks)
Que: The driver of a petrol lorry, while transferring petrol from the lorry to an underground tank at a
garage, struck a matchstick in order to light a cigarette and then threw it, still alight on the floor. An
explosion and a fire ensued.
Who is liable for the damage so caused ? Decide giving case law on this point.
(5 marks)
Que: Shyam, a police officer comes to know from reliable sources that four persons are staying in a
house and planning to kidnap and murder Rajan. They are equipped with automatic weapons. The police
officer apprehends that they will commit the crime at any moment.
He directly goes to that house and, without any warrant or order from the Metropolitan Magistrate,
arrests all the four persons along with weapons in their possession. Is the arrest of all the four persons
valid ? Decide with reasons.
Que: Ragini told Rajendra in the year 2007 that she had committed theft of the jewellery of her
neighbour Asha. Thereafter, Ragini and Rajendra were married in the year 2008.In the year 2009,
criminal proceedings were instituted against Ragini in respect of the theft of the said jewellery.
Rajendra is summoned to give evidence in the said criminal proceedings.Decide whether Rajendra can
disclose the communication made to him by Ragini inthe year 2007, in the criminal proceedings in
respect of the theft of the jewellery.

Que: Write short notes on any four of the following :
(i) Expert opinion
(ii) Doctrine of feeding the grant by estoppel
(iii) Doctrine of lis pendens
(iv) E-governance
(v) Adjudicating officer.
Que: What are the cyber offences under the Information Technology Act, 2000 ?
Que: ―Where once time has begun to run, no subsequent disability or inability to institute a suit or make
an application can stop it.‖ Discuss.
Que: Explain the maxim damnum sine injuria under the law of torts.
Que: In a case, Hamid was terminated from the police service. Hamid filed a writ petition against
termination order on the ground that a reasonable opportunity of being heard was not given to him by
the government. The writ petition was dismissed by the court as the government proved that reasonable
opportunity of being heard had been given to the petitioner. Afterwards, Hamid filed another writ
petition on the ground that as he was appointed by the Director General of Police, termination by the
order of Deputy Inspector General of Police was in violation of Article 311(1) of the Constitution of India.
Decide the validity of the second writ petition.
Que: On 20th March, Kamal told his wife that he was going to Berhmpore, as Pankaj‘s wife has written a
letter and asked him to come and receive payments due to him. On 21st March, Kamal left his house in
time to catch a train for Berhmpore, where Pankaj lived with his wife. On 23rd March, Kamal‘s
dismembered body was found in a box which had been purchased for Pankaj. Decide whether on the trial
of Pankaj for the murder of Kamal, the statement made by Kamal to his wife was admissible in evidence.
If so, on what grounds ?
Que: Arpit took a debt of Rs.10,000 from Bharat on January, 1998 and promised to pay by 31st
December, 2003. He could not pay such debt within the stipulated time. On 1st December, 2006, Arpit
paid Rs.500 as interest against such debt to Bharat against receipt. Bharat filed a suit against Arpit to
recover such debt on15th December, 2008. Whether the suit filed by Bharat is within the period of
limitation ? Decide with reasons citing relevant provisions of the law.
Que: Discuss the doctrine of res judicata under section 11 of the Code of Civil Procedure,
1908.
Que: Discuss the powers of various courts under the Code of Criminal Procedure, 1973.
Que: Four adhesive stamps were used on an instrument. First adhesive stamp had a single line drawn
across the face of the stamp. On the second stamp, there were two parallel lines. The third stamp had
three parallel lines, and the fourth stamp had two lines crossing each other. What are the provisions for
cancellation of adhesive stamps and which adhesive stamps referred to above will be considered to have
been properly cancelled ?
Que: The managing clerk of a firm of solicitors, while acting in the ordinary course of business
committed fraud, against a lady client by fraudulently inducing her to sign a document transferring her
property to him. He had done so without the knowledge of his principal. Whether principal will be liable
? Give reasons.
Que: Aamir effects an insurance policy on his own life with the Life Insurance Corporation of India (LIC)
and deposits it with a bank for securing payment of an existing debt. Aamir dies and bank claims the
amount from the LIC contrary to the claims of Aamir‘s heirs. Decide whether the claim of the bank is
maintainable.

Que: Gautam executed a document on 20th October, 2007 in favour of Thomas. Thereafter, Gautam
executed another document on 1st December, 2007 in favour of Peter in respect of the same property.
The document between Gautam and Thomas was registered on 15th January, 2008 whereas the
document between Gautam and Peter was registered on 15th December, 2007. Which document gets
priority and why ?
Que: Abhay‘s agricultural land was purchased by the government for the purpose of construction of a
factory but no duty was paid for this transfer by the government. Abhay wanted to take back his land on
the ground that the government has not paid the duty and, therefore, no sale deed was executed. Will
Abhay succeed ?Give reasons.
Que: A judicial proceeding under the Code of Criminal Procedure, 1973 includes inquiry, trial and
investigation. Comment.
Que: A magistrate of the first class passed a sentence of imprisonment for a term of three years with a
fine of Rs.4,000 and in lieu of non-payment thereof an additional imprisonment for another one year.
Has the aggrieved person any right to appeal against this sentence ?
Que: Anil prefers an appeal for setting aside the arbitral award on the ground that he was not given a
proper notice of arbitral proceedings and thereby not being able to present his case. He also furnishes
sufficient proof and pleads before the court that he received the arbitral award just 15 days back.
Decide with reasons ––
(i) whether Anil will succeed in his prayer; and
(ii) whether the law of limitation will not be a bar ?
Que Ram and Shyam sell rice for Rs.25,000 to Sohan and Mohan. Sohan sells cloth worth Rs.28,000 to
Shyam. Sohan files a suit against Shyam for recovery of price of cloth. Shyam claims set-off of the cost of
rice in this suit. Will he succeed ?
Que: Ajoy voluntarily makes a gift of his immovable property to Bijoy. Bijoy accepts the gift. The
possession of the property was given to Bijoy but the gift deed which required registration under section
123 of the Transfer of Property Act, 1882 was not registered. Whether Ajoy, the donor can revoke the
gift ? Decide.
Que: Angad is charged for murder of Binod. The charge sheet is filed in the court of Chief Judicial
Magistrate, who passed an order of sentence of imprisonment for life. Angad engages you as an
advocate. Advise the course of action to Angad giving reasons.
Que: Comment on any four of the following :
(i) ―Where once time has begun to run, no subsequent disability or inability to institute
a suit or make an application can stop it.‖
(ii) ―Heydon‘s rule is not always operative in interpretation of statutes.‖
(iii) ―Conciliation is an informal process in which the conciliator (the third party) tries to bring the
disputants to agreement.‖
(iv) ―An instrument admitted in evidence is not to be questioned.‖
Que: Distinguish between any four of the following :
(i) ‗Decree‘ and ‗order‘.
(ii) ‗Facts in issue‘ and ‗issues of fact‘.
(iii) ‗Computer‘ and ‗computer system‘.
Attempt any four of the following :

(i) State the instruments which are chargeable with duty under the Indian Stamp Act, 1899.
(ii) Mention the documents which are not required to be registered compulsorily under
the Registration Act, 1908.
(iii) ―Law of limitation bars the remedy, but does not extinguish the right.‖ Explain the
statement with its exceptions.
(iv) State the effects of ‗acknowledgement‘ and ‗payment against debt‘ on the period of limitation.
(v) Discuss briefly the right of redemption.
Que: Explain strict or absolute liability under the law of torts.
Que What do you understand by ‗Public Information Officer‘ (PIO) under the Right to Information Act,
2005 ? What are the duties of PIO under the said Act ?
Que: Discuss the remedies available to a person who has been refused to register a document by a sub-
registrar. Can registration of documents be refused on the ground of under-valuation of stamp duty ?
Que: A confession made by an accused on the faith of a promise made by the police officer making the
investigation that he would get off if he made a disclosure of the offence committed by him or would get
pardon. Whether such a confession made by the accused is admissible in evidence ? Answer citing the
relevant provisions of law.
Que: Amit is the resident of Jaipur and Babita is of Delhi. The marriage between two was solemnised at
Ajmer. Both Amit, husband and Babita, wife lived together at Udaipur. Amit treated his wife Babita with
cruelty. Babita, the wife comes to you as an advocate to file a suit against Amit for divorce on the
ground of ‗cruelty‘. Advise Babita, in which court Babita has the right to file the suit. Decide citing the
relevant provisions of law.
Que: Comment on any four of the following :
(i) Parliamentary history as an external aid in the interpretation of statutes.
(ii) Persons against whom specific performance of contract is available.
(iii) Making of additional award by arbitral tribunal.
(iv) Exceptions to the rule that absolute restraint on transfer of property is void.
(v) Computation of period of limitation for an appeal or an application for leave to appeal.
Que: Distinguish between any four of the following :
(i) 'Writ of prohibition' and 'writ of mandamus'.
(ii) 'Arbitration' and 'conciliation'.
(iii) 'Libel' and 'slander'.
Que: Attempt any four of the following :
(i) The law looks into the substance and effect (or intended effect) of the text of the instrument and not
the physical medium through which it is recorded. Comment.
(ii) The majority of legal problems in the information technology relate to the machine, the medium and
the message. Discuss.
(iii) Explain the rules relating to delivery of summons by court under the Code of Civil Procedure
(Amendment) Act, 2002.

(iv) The principle of estoppel says that a man shall not say one thing at one time and later on say a
different thing. Comment.
(v) When can the Magistrate take cognizance of an offence ?
Que: Bimal made an application in writing with prescribed fee to the Public Information Officer (PIO) for
obtaining the information which is permissible under the relevant statute. The PIO neither provided the
required information nor rejected the application of Bimal for providing the required information
although a period of 45 days elapsed from the date of submitting the aforesaid application to the PIO.
Bimal wants to file a suit in the civil court for not providing the required information to him. Advise
Bimal.
Que: One morning, scientists at an atomic research centre found a rude-nuclear message splashed across
their computer screens. Someone had breached the atomic research centre's advanced security system
and sensitive e-mail.
What offence has been committed in the atomic research centre ? Decide with reference to the
provisions of the relevant statute.
Que: Rohit executes a sale deed of a house in favour of Prem. The house is situated at NOIDA (Uttar
Pradesh), but the transferor (Rohit) and transferee (Prem) want the sale deed to be registered at
Lucknow, which is capital of the State. Can they do so ? Discuss.
Que: A suit was instituted by the plaintiff company alleging infringement by the defendant company by
using trade name of medicine and selling the same colour combination, etc., as that of plaintiff
company. A subsequent suit was instituted in a different court by the defendant company containing the
same allegations. Advise the plaintiff company about the steps to be taken by it giving reference to
relevant legal provisions and case law.
Que: Discuss the following. Attempt any four :
(i) Vicarious liability of the State.
(ii) A person taking the benefit of an instrument must also bear the burden of the instrument.
(iii) Fraudulent transfer is voidable as per the Transfer of Property Act, 1882.
(iv) Summary suit applies to a suit to prevent unreasonable obstruction by a defendant.
(v) Liability of network service provider under section 79 of the Information Technology
Act, 2000.
Que: Distinguish between the following. Attempt any four :
(i) 'Judicial remedies' and 'extra-judicial remedies'.
(ii) 'Complaint' and 'FIR'.
(iii) 'Doctrine of res sub judice' and 'doctrine of res judicata'.
(iv) 'Admissions' and 'confessions' under the Indian Evidence Act, 1872.
(v) 'Condition precedent' and 'condition subsequent'.
Que: Attempt any four of the following :
(i) State any four categories of cases in which a police officer may arrest a person without an order from
a Magistrate and without a warrant.
(ii) When is the Central Information Commission/State Information Commission duty bound to receive
complaints from any person ?

(iii) What is the effect of non-registration of documents required to be registered ?
(iv) What is the remedy available to a person, if the document presented by him for registration is
refused to be registered by the Registrar ?
(v) Explain form and contents of an arbitral award.
Que: Amar is a citizen of India and lives in Delhi with his family. He makes an application to the Public
Information Officer (PIO) under the Right to Information Act, 2005 and completes all the formalities. The
information sought relates to Cabinet papers including records of deliberations of the Council of
Ministers. The PIO rejects the application.
Has Amar any right to go to the court or to the Central Information Commission against the decision of
the PIO ? Give your answer quoting the relevant provisions of law.
Que: Anuj orally grants the rights to catch and carry away fish from his lake to Barun for`700. Is the
grant valid ? Give your answer under the relevant provisions of the Transfer of Property Act, 1882. Also
cite an appropriate case law.
Que: 'X' is charged for murder of 'Y'. The charge sheet is filed in the court of Chief Judicial Magistrate,
who passed the order of sentence of life imprisonment. 'X' engages you as an Advocate. What shall be
your advice in the matter ?
Que: A document, which is apparently an agreement granting a franchise, is produced in the court, but is
not stamped.
Examine, citing the relevant provisions of the Indian Stamp Act, 1899, whether —
(i) the document is void;
(ii) the document can be admitted on payment of penalty; and
(iii) the parties are liable to be prosecuted.
Que: Arun prefers an appeal for setting aside the arbitral award on the ground that he was not given a
proper notice of arbitral proceedings and thereby not being able to present his case. He also furnishes
sufficient proof and pleads before the court that he received the arbitral award just 15 days back.
Decide with reasons —
(i) Whether Arun will succeed in his prayer; and
(ii) Whether the law of limitation will not be a bar ?
Que: Atul, executed in favour of his brother, Bimal, a gift of all his property. By anotherdeed, Bimal
made provision for the living expenses of his brother Atul and hypothecatedin favour of Atul, a part of
the property included in the above mentioned gift deed, in order to secure the payment of the living
expenses. Decide, whether the gift made by Atul and making a hypothecation in his favour by Bimal are
one and the same transaction or more than one transaction. Further, is it a case of 'settlement' under
the Indian Stamp Act, 1899 ?
Que: Comment:
(i) There are some facts of which evidence cannot be given, though they are relevant. They are also
referred to as 'privileged communications'. Discuss briefly.
(ii) "Where once time has begun to run, no subsequent disability or inability to institute a suit or make an
application can stop it." Discuss.
(iii) Mention the documents where registration is optional under the Registration Act, 1908.

(iv) Explain the consequences that follow where the instruments are not duly stamped under the Indian
Stamp Act, 1899.
Comment:
(i) A writ of prohibition is issued to an inferior court preventing the latter from usurpingjurisdiction
which is not legally vested in it.
(ii) The rule of strict liability has no exception.
(iii) Where the information requested for concerns the life or liberty of a person, the same should be
provided within 48 hours of the receipt of such request under the provisions of the Right to Information
Act, 2005.
(iv) As per the provisions of the Arbitration and Conciliation Act, 1996 a conciliator isbound by the Code
of Civil Procedure, 1908 or the Indian Evidence Act, 1872.
(v) Summary trial is speedy trial by dispensing with formalities or delay in proceedings.
(vi) Where there is infringement of a legal right not resulting in harm, the plaintiff can still sue under the
law of torts.
(vii) The laws passed by the Parliament in national interest cease to have effect automatically after nine
months.
(viii) Where allowance is made for spoiled or misused stamps, the collector may give in lieuthereof,
other stamps of the same description or value.
Que: Amrit executed a gift deed in his life time in favour of Bhanu. The gift deed was not registered
during the life time of Amrit. Bhanu, after death of Amrit, presented the gift deed before the Registrar
for its registration. Rakshit, brother of Amrit, raised an objection for the registration of gift deed on the
ground of fake signature of Amrit. Both the witnesses to the gift deed contended that the signatures
were made in their presence by the donor at the time of execution of gift deed. Whether the gift deed
will be treated valid for registration under the Registration Act, 1908?

CHAPTER-1
Distinguish between Declaratory Precedents and Original Precedents.
Even though the legal authority of the precedents is exactly same‘ however they differ in the following
manner.
Declaratory Precedents Original Precedents

A Declaratory Precedents is one which is merely the An original precedent creates and applies a new rule
application of an already existing rule of law. of law.
In this, the rule is applied because it is already a law.
In this, it is a law for future because it is now
applied.
In case of advanced countries, declaratory The number of original precedents is small but their
precedents are more numerous. importance is very great.
A declaratory precedent is a good source of law as an They serve as a good evidence of law for the future.
original precedent
To remember:
Original precedent -It means a new rule made by the court by its decision.
Declarative Precedent -When the original precedent is followed by the court in subsequent decisions such pre
declarative precedent.
Define the term Obiter Dicta.
Obiter Dicta are of different kinds and of varying degree of weight. Some Obiter Dicta are deliberate
expressions and opinion given after consideration on a point argued before the court. There might be
situations too difficult for lawyers and courts to see whether an expression is the ratio of judgment or just a
casual opinion. In such case Obiter Dicta comes into picture, that is, the facts and the principle that court
considers while passing a decision are not the part of decision but can provide a guidance to future judges
while deciding on similar matters. However, at the same time it is open to other judges to give a decision
contrary to such obiter dicta.
Differentiate between Obiter Dicta and Ratio Decidendi.
Obiter Dicta Ratio Decidendi

Facts & principals which were considered at the Reasons on basis of which any decision is given.
time of giving decisions.
Not the part of decision Reasons are the part of judgment.
Serves as a guidance to future judgment It is binding on inferior courts.
It can be found from the records of the case. It is mentioned in the judgment.
Explain the term Doctrine of Stare Decisis.
Stare Decisis
As per the principle of stare decisis decision of high court is binding on all sub-ordinate courts and
tribunal.
The doctrine of stare decisis means adherence to the past decision and do not change rules which are
established.
It is a useful principle which brings uniformity and surity in the law. Under the stare decisis doctrine, a
principle of law which has been settled by a series of decisions passed by the Courts is generally binding
on the courts and should be followed in similar cases.

In simple words, this principle means that similar cases should be decided similarly. This doctrine is
based on public policy.
Although doctrine should be strictly foloowed by the Courts, it is not universally applicable.
The doctrine should not be considdered as a rigid and unchangaeable doctrine which must be applied at
the cost of justice
The intention of the doctirine of state decisis is to bring uniformity in the decision passed by the Courts,
the doctrine is not iniversally acceptable and is rigid.
List out the sources of English Law.
i. Common law- Common law refers to legal customs that were followed in England. In England
the decisions passed by courts on the basis of legal customs were merged and laws were
developed.
ii. Principles of equity- When legal customs are adopted as law, there can be many issues for
example in some cases legal customs are never against kings or chancellors so at the time of
making the laws the concept of ―fairness‖ should also be followed which will ensure equal
applicability of law.
iii. Law merchant - One of the major sources of commercial laws is the commercial transactions
between the parties. The parties to the commercial transactions such as customers, agents,
sellers were asked to give their opinions and on the basis of their opinions, business laws were
made in England.
iv. Statute law- All the rules and regulations are made on the basis of law passed by Parliament.
Write short note on Austin‘s Command theory of Law.
Austin, a noted English legal theorist, differentiated between ―Law properly so called‖ and ―laws
improperly so called‖ and said that laws properly so called are general commands but not all of it is
given by men for men. According to Austin, law is the command of sovereign that is backed by sanction.
He has propagated that law is a command which imposes a duty and the punishment.
Thus, law has three main features:
1. It is a command: it means directing another person to do or forbear from doing some act, and
violation of this will be followed by evil consequence on the person so directed.
2. It is given by a sovereign authority: in Austin‘s theory, sovereign means ―politically superior‖, that is,
an authority that receives obedience from the people.
3. It has a sanction behind it: it is a negative concept. It is an evil consequence to be faced by the
person so directed on the violation of command. However, it shall not be confused with a reward
that might be offered on following on a particular command.
Que: ‗Justice, Equity and Good Conscience‘ is the main Secondary Source of Indian Law.
Explain it.
Ans: When the laws are not clear on any particular matter, the court must provide an interpretation or
make such decision which is on the lines of justice, equity and good conscience.
Justice, equity and good conscience may mean the rules of English Law, in if they are applicable to
Indian society and circumstances.
The Ancient Hindu Law had its own versions of the doctrine of justice, equity and good conscience.
In its modern version, justice, equity and good conscience as a source of law, got its origin when British
administration began providing justice in India.
The rules of the several High Courts established by the British Government directed that when the law
was silent on any matter, they should decide the cases in accordance with justice, equity and good
conscience.
Justice, equity and good conscience have been generally interpreted to mean rules of English law on
similar matter as changed, to suit the Indian conditions and circumstances.
The Supreme Court has stated that it is now well established that in the absence of any rule of Hindu
Law, the courts have authority to decide cases on the principles of justice, equity and good conscience as
long as it is inconsistent with, any doctrine or theory of Hindu Law.
Que: Critically examine Roscoe Pound‘s theory of interests.
Ans: He was a supporter of sociological jurisprudence.

He drew a similarity between task of lawyer and engineer and gave the theory of social engineering. The
goal of his legal theory was to provide maximum satisfaction of wants of society with minimum wastage.
Such a society according to Roscoe Pound would be an ‗efficient‘ society.
Realisation of such a social structure would require balancing of competing interests.
For any legal order to be successful in making an efficient society, there has to be a recognition of certain
interests, such as individual, public and social.
As per him for any legal order (law) to be successful must have:
- Recognition of interest of individual public and society.
- The limits up to which such interest will be recognized.
- Securing such interest.
According to Roscoe Pound, for fixing the scope and the subject matter of the legal system, following five
things are required to be done:
1. Preparation of list of all interests and their classification.
2. Selection of the interests which should be legally recognized.
3. Specification of the limits up to which interest will be proteccted.
4. Creation of solutions through which laws may secure such interests when interest have been
recognised, and
5. Evolution of the principles of valuation of interests.
(kul milakar roscoe pound ke hisab se law ko sare logon ke interest ―hit‖ protect karne chahiye aur is ke liye
aap sare logon ke hiton ko categorise Karen, fir dekhen ki kis had tak unhe protect karna hai aur fir law
banaiye – yeh aap ke liye hai exam main mat likhna)
Roscoe Pound‘s classification of interests are as follows:
1. Individual interest : These are claims or demands known from the view of individual‘s life and concern.
They are Interest of personality; Interest in domestic relations and Interest of substance.
2. Public interest : These interests are stated by individual from the standpoint of political life. They are
Interests of the state as a juristic person and Interests of the state as guardian of social interest.
3. Social interests : These are claims or demands thought of in terms of social life and generalized as claims
of the social group. It is from the point of view of protecting the general interest of all members of the
society.

CHAPTER 2- CONSTITUTION OF INDIA
Que: ―Any law which is inconsistent with the fundamental rights is void ‗to the extent of
inconsistency‘ and it is not necessary to strike down the whole Act as invalid, if only a
part is invalid.‖ Discuss.
Ans: The question relates to doctrine of severability, It is given in Article 13 of Constitution of
India.
Doctrine of Severability is related to the provisions of law which are inconsistent or does not support the
fundamental rights.
According to this doctrine if any provision or provisions of any law are inconsistent with the
fundamental rights, in this case only such provisions which are inconsistent with fundamental rights
will become invalid rest of the law will remain valid and intact, if it is not inconsistent with the
fundamental rights.
A.K. Gopalan V/s. State of Madras, In this case the Supreme Court declared section 14 of the
Preventive Detention Act as invalid as it was against the article 22 of the fundamental rights relating to
protection against arrest and detention.
The COI is ―federal in character but with unitary features‖. Comment.
The essential features of a Federal Polity are dual government, distribution of powers, supremacy of the
Constitution, and a rigid procedure for the amendment of the constitution. The political system
introduced by our Constitution possesses all the aforesaid essentials as follows:
1. Dual Government - In India, there are Government at different levels, that is, Union and State.
2. Distribution of Powers- Powers to make laws have been distributed among them by way of 3 lists as
per the Seventh Schedule.
3. Supremacy of constitution -Both union and States have to follow the Constitutional Provisions when
they make any law.
4. Independence of judiciary- The Judiciary is independent with regard to judicial matters. The
Supreme Court decides the disputes between the Union and the States, or the State inter-se.
5. Rigid procedure for amendment of constitution- The Constitution is supreme and if it is to be
amended, it is possible only by following the procedure laid out in Article 368 of Constitution.
From the above, we can say that the Indian Constitution basically has federal features.
But, there are some peculiarities of Indian federalism:
v) Mode of Formation: In American system all the independent states, by an agreement, founded a new
central polity & surrendered a fixed part of their powers to the newly formed polity. India followed
Canadian mode by which the autonomous units were created & they were combined to form a Central
Govt.
vi) Position of states in federation: In federal system number of safe-guards are provided for
protection of interests of state, as they were independent before formation of federal system. However,
in India, states were not independent units. So the powers are also exercised by union e.g. residuary
powers or concurrent list.
vii) Citizenship: America has a dual citizenship system, India has a single citizenship system (under dual
citizenship an individual has two citizenships i.e. one for the state and one for the country).
viii) Residuary powers: Residuary powers remains with the states in federal system, however in our
country the residuary powers are exercised by the Central Govt.
(Residuary powers means, the power that is neither specified in state list or the concurrent list)

Therefore we can say that, India is a quasi-federal state as it has features of both federal & unitary
system.
What is a bill? List out the types of Bills.
A bill is a draft statute which becomes law after it is passed by both the Houses of Parliament and
assented to by the President.
All legislative proposals are brought before Parliament in the form of Bills.
(i)Bills may be broadly classified into Government Bills and Private Members‘ Bills depending upon
their initiation in the House by a Minister or a Private Member.
(ii)Content wise, Bills are further classified into:
a) Original Bills which embody new proposals, ideas or policies,
b) Amending Bills which seek to modify, amend or revise existing Acts,
c) Consolidating Bills which seek to consolidate existing law/enactments on a particular subject,
d) Expiring Laws (Continuance) Bills which seek to continue Acts which, otherwise, would expire on a
specified date,
e) Repealing and amending Bill to cleanse the Statute Book,
f) Validating Acts to give validity to certain actions,
g) Bills to replace Ordinances,
h) Money and Financial Bills, and
i) Constitution Amendment Bills.
(iii)However, procedurally, the Bills are classified as
a) Ordinary Bills
b) Money Bills and Financial Bills
c) Ordinance Replacing Bills and
d) Constitution Amendment Bills.
(iv) Money Bills are those Bills which contain only provisions dealing with all or any of the matters
specified in sub-clauses (a) to (f) of clause (1) of article 110 of the Constitution. Financial Bills can be
further classified as Financial Bills Categories A and B. Category A Bills contain provisions dealing with
any of the matters specified in sub-clauses (a) to (f) of clause (1) of article 110 and other matters and
Category B Bills involve expenditure from the Consolidated Fund of India.
Write short notes on:
(i) SEPERTATION OF POWERS
It is generally accepted that there are three main categories of Government functions.
1. The Legislative
2. The Executive
3. The Judicial

At the same time, there are three main organs of the Government in State, that is,
1. Legislature
2. Executive
3. Judiciary
According to the theory of separation of powers, these three powers and functions of the Government must,
in a free democracy, always be kept separate and exercised by separate organs of the Government. That is,
the legislature cannot exercise executive or judicial power, the executive cannot exercise legislative or
judicial power of the Government.
Article 50 of the Constitution of India deals with separation of judiciary from executive. It provides that the
State shall take steps to separate the judiciary from the executive in public service of the state.
In India, the executive is a part of the legislature. The President is the head of the executive and acts on the
advice of the Council of Ministers.
The Constitution of India does not recognize the doctrine of separation of power in its absolute rigidity, but
the functions of the three organs of the government have been sufficiently differentiated. (Ram Jamaya v.
State of Punjab)
(ii) HABEAS CORPUS

 These writs are issued by the courts for protection of personal liberty. When any person has
been detained by the authorities, the court questions the authority about the grounds on which
such a person has been detained.
 If the courts find that the reason for detention is insufficient, the court can issue the writ of
habeas corpus & pass an order for to person.
 Under the Article 32 & 226 of COI, any person can move to the S.C. / H.C. for issuance of this
writ. If H.C. has rejected the writ an appeal can be made to the S.C.
 The application may be by the prisoner or any person acting on his behalf to safeguard his liberty
for the issuance of writ of habeas corpus, as no man can be punished or deprived of his personal
liberty except for violation of law and in the ordinary legal manner.
 An appeal to the Supreme Court may lie to against an order granting or rejecting the application.
 The disobedience to this writ is met with by punishment for contempt of Court under the
Contempt of Courts Act.
(iii) MANDAMUS
 This writ is issued by High Courts and Supreme Courts.
 Mandamus means a command / instruction.
 The writ of Mandamus is issued when and person, authority, court, Government fails to perform
the functions which they are legally bound to perform, but they do not perform.
 In these cases, the Court can issue a command/instruction for discharging of the function.
 Case Law: State of Maharashtra V/s. M.P. Vashi.- In this case it was decided that the
court can direct the officers of the Govt. to carry out the directive principles given in the C.O.I.
Covered under Article 32 & 226 of Constitution of India. It does not lie against president, Govt.
or private persons.
 In the case Gujarat State Financial Corporation Vs Lotus Hotel, in this case the GSFC
refused to finance the project of Lotus Hotels after entering in to an agreement, the High Court
of Gujarat issued a writ of Mandamous and asked GSFC to issue funds as promised.
(iv) PROHIBITION
 This writ is issued by High Court and Supreme Courts.

 It is just opposite to writ of Mandamus.
 Writ of Mandamus is issued to command on activity or to initiate an action, but writ of
prohibition is issued to restrict or restrain any activity.

 When an inferior court exercises a jurisdiction which is not legally vested in it, or violates some
rules or laws the superior court can issue writ of prohibition & stop the inferior court from
exercising such jurisdiction.
 This writ is issued before exercise of judgement by the Lower Courts.
(v) WRIT OF CERTIORARI
This means setting aside a judgement or decree passed by an inferior court.

Through this writ the High Court or Supreme Court calls for the record of the cases decided by the lower
courts and if they find that lower court has not given the justice properly than decisions of lower courts can
be quashed by the Superior Courts.
This writ is issued in the following cases :
 When any inferior court has passed a judgment which is in excess of its powers.
 When there is a material defect in the judgment passed by the inferior court.
 When any inferior court has passed a judgment which is not vested in it.
 Where the inferior court has contravened the rule of natural justice.
In all the above mentioned cases, superior court can quash the judgment passed by the inferior court by
issuing writ of certiorari.
In the case of AK Karpik Vs Union of India, the decision of lower Court was quased by the High Court.
(vi) PARLIAMENTARY COMMITTEE

The parliament has lot of work so it delegates its work to parliamentary committees consisting of experts.
The Committees work as a link between the parliament, executive and the public.
The need of committees arise due to 2 main reasons:
1. To keep a watch on the Executive
2. To reduce the work volume of the parliament as the parliament cannot scruitinize every matter.
Committees also has expertise.
The Committee considers in-depth analysis of the matter and public is also involved in the decisions of the
committee as the committee also invites suggestions from the public.
Committees prevent misuse of the power by the Executive.
It may, however, be remembered that Parliamentary control in the context of the functioning of the
Committees may mean influence, not direct control; advice, not command; criticism, not obstruction;
scrutiny, not initiative; and accountability, not prior approval. This, in brief, is the object of the Committee
System.
There are 2 types of Committees

1. AD HOC COMMITTEE: Ad hoc Committees are appointed for a specific purpose and they cease to exist
when they finish the task assigned to them and submit a report.
2. OTHER COMMITTEE: These committees act as Parliament‘s ‗Watch Dogs‘ over the executive. These are
the Committees on Subordinate Legislation, the Committee on Government Assurances, the Committee on
Estimates, the Committee on Public Accounts and the Committee on Public Undertaking and
Departmentally Related Standing Committees (DRSCs)
List out the ordinance making power of Governor and the President.
ORDINANCE MAKING POWERS OF THE GOVERNOR

If the governor wants to pass any ordinance related to state law then he has the same powers as the
president enjoys for whole of India, (the Governor will exercise the power on the advice of council of
ministers and when house of legislature is not in session and he can not be compelled for making the law, If
within 6 weeks from the date of start of parliament session, if the ordinance is not approved by the State
Legislature, the ordinance becomes invalid, 6 weeks will be counted from later date if the houses of
Legislature, start a session on different dates) but in the following cases the Governor cannot pass an
ordinance without instructions of the President.
d) An ordinance which requires prior permission of President as provided in Constitution of India.
e) Where it is necessary to take permission of the president according to the governor.

f) Where the State legislature deems it necessary to take the assent of President before approving the
ordinance.
DOES A LAW MADE BY A STATE TO CREATE MONOPOLY RIGHTS IN FAVOR OF A

PERSON TO CARRY ON ANY BUSINESS AFFECT THE FREEDOM OF TRADE?
The Supreme Court's decision in Chintamana Rao v. State of M.P., is a leading case on the point where the
constitutionality of Madhya Pradesh Act was challenged. The State law prohibited the manufacture of bidis
in the villages during the agricultural season. No person residing in the village could employ any other
person nor engage himself, in the manufacture of bidis during the agricultural season. The object of the
provision was to ensure adequate supply of labour for agricultural purposes. The bidi manufacturer could
not even import labour from outside, and so, had to suspend manufacture of bidis during the agricultural
season. Even villagers incapable of engaging in agriculture, like old people, women and children, etc., who
supplemented their income by engaging themselves manufacturing bidis were prohibited without any
reason. The prohibition was held to be unreasonable.
However, after the Constitutional (Amendment) Act, 1951, the State can create a monopoly in favour of
itself and can compete with private traders. It has been held in Assn. of Registration Plates v. Union of
India, (that the State is free to create monopoly in favour of itself. However the entire benefit arising there
from must ensure to the benefit of the State and should not be used as a clock for confer ring private benefit
upon a limited class of persons.
What are the type of Precedents?
1.DECLARATORY PRECEDENTS: It is one which is merely the application of an already existing rule
law. In this, the rule is applied because it is already a law. In case of advanced countries, declaratory
precedents are more numerous. A declaratory precedent is a good source of law as an original precedent.
2. ORIGINAL PRECEDENTS: An original precedent creates and applies a new rule of law. In this, it is a
law for future because it is now applied. The number of original precedents is small but their importance is
very great. They serve as a good evidence of law for the future.
3. PERSUASIVE PRECEDENTS: It is one in which the judges are not obliged to follow but which they
will take into consideration. There is no legal source of law, but it is regarded as a historical source of law.
4. ABSOLUTELY AUTHORATIE PRECEDENTS: It is a legal source of law. It is one in which judges
must follow, even if the judge considers it to be wrong.
5. CONDITONALLY AUTHORATIVE PRECEDENTS: It is one which is ordinarily binding on the
court, however the court can disregard a decision if it is a wrong one.
Que: Article 19(1)(g) of the Constitution of India provides that all citizens shall have the right
to practice any profession, or to carry on any occupation, trade or Business. Explain.
Article 19(1)(g) of the Constitution of India gives the individual a freedom to carry on any trade business &
profession.
CASE LAW
In the case of Safdarjung Hospital V/s. K.S. Sethi it was decided that trade includes buying &
selling barter or commerce skilled work etc.
 But the term business is wider than the term trade.
 ―What is business & what is not‖ can be decided by applying common sense.
 Business includes trade.
 In the freedom of trade & business, reasonable restrictions can be imposed by the parliament e.g.
1) In some case Govt. has created monopoly for itself,
2) There is a restriction on dealing in narcotic drugs
PROFESSION
Profession means an occupation requiring an intellectual skill & a prescribed education qualification. There
is a freedom that any person may engage himself in any kind of profession.
However the state can impose restrictions in practice of profession on the following grounds:
4) By prescribing educational or technical qualification for practicing any profession, oron carrying of
occupation, trade or business e.g. The Government can make law and stat that in order work as a CS a
person should have membership of ICSI.
5) The Government (state) or corporation owned by state can carryout any trade, occupation or profession
and may restrict the citizens wholly or partially from carrying out any trade profession or occupation.
For example RBI Act, 1934 states that currency note printing activity will be carried out by the RBI.
6) In the interest of general public also there can be reaosonable restrictions on this freedom.
So state by making a law can impose restrictions on the freedom granted under article 19(1) (g).
The state has been given a right under the constitutional amendment act to create monopoly in its favor.
However, there must be reasonable grounds for creation of monopoly. If monopoly is created on
unreasonable ground then such monopoly will be invalid.

 MP Govt. passed Madhya Pradesh Act, As per the Act, during agricultural season no person Could be
employed for bidi manufacturing.
children could not get employment because it was diffuclt for them to carry agricultural activities. This
causetd large scale unemployment. The Supreme Court held that, the monopoly created for agriculture
sector was unreasonable.
In the case of Association of Registration Plates Vs Union of India, it was decided that State is free to create
monopoly in its favour, however the benefit of such monopoly must be in favour of state and not in faovr of
some limited class of persons.
Que: Rajasthan Legislature passed a law restricting the use of sound amplifiers. The law was
challenged on the ground that it deals with a matter which falls in entry 81 of List-I under
the Constitution of India which reads : ‗‗Post and telegraphs, telephones, wireless
broadcasting and other like forms of communication‘‘ and therefore, the State Legislature
was not competent to pass it. Examine the proposition in the light of ‗‗Pith and Substance
Rule‘‘ referring the case law on this point.
5) Ans: Parliament and State Legislature get the power of making the laws from the lists mentioned in the
Constitution of India i.e. Union List, State List and Concurrent List.
6) It may happen some time, mostly on the matters stated in the Concurrent list that, Parliament as well as
State Legislature both have made laws, and if we look closely then we may find that either Parliament or
State Legislature has exceeded its powers.
7) For example the laws made by the parliament may touch the state subject or vice versa and in this case
such laws will not be invalid only on the goround that it relates to the subject contined in the other list.
8) According to the rule of pith & substance, the rule which affects the law making power of some other
body will remain valid.
Case Law : D.N. Banerjee V/s. D. N. Mukherjee :
c) Parliament passed industrial dispute act which was applicable to the workers of whole of India but the
municipal corporation raised an objection & said that it has got its own laws for resolving the dispute
between the workers.
d) The Supreme Court held that the law passed by the Parliament will be held to be valid.
In the case of G. Chawla Vs State of Rajasthan, the State Legilature of Rajasthan Passed a Law on on
restriction of use sound amplifiers as per the entry number 6 in state list which relates to health and
sanitation, but this law was challenged on the ground that sound amplifiers come in entry 81 of union list
which relates to post, telegraphs, wireless and other modes of communication, the Supremer Court decided
that the law passed by Rajasthan Legislature is valid as it focuses on public health by restricting the use of
sound amplifiers.
So in the above case, as per the decision of Supreme Court the law passed by State Legislature will prevail.
Ques: In a case, Hamid was terminated from the police service. Hamid filed a writ petition
against termination order on the ground that a reasonable opportunity of being heard was
not given to him by the government. The writ petition was dismissed by the court as the
government proved that reasonable opportunity of being heard had been given to the
petitioner. Afterwards, Hamid filed another writ petition on the ground that as he was
appointed by the Director General of Police, termination by the order of Deputy Inspector
General of Police was in violation of Article 311(1) of the Constitution of India. Decide the
validity of the second writ petition.
Answer:
As per article 311 of constitution, No person who is a member of a civil service of the Union or an all-India
service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or
removed by an authority subordinate to that by which he was appointed.
So in the given case as Hamid holds a post under state Government can file a writ petition on the ground
that his removal was done by a subordinate authority.
Ques: Government of Madhya Pradesh passed a law prohibiting the manufacture of bidis in
the villages during the agricultural season. No person residing in the village could employ
any other person nor engage himself in the manufacture of bidis during the agricultural
season. The objective of the provision was to ensure adequate supply of labour for
agricultural purposes. A bidi manufacturer could not even engage labour from outside the
State, and so, had to suspend manufacture of bidis during the agricultural season. Even
villagers incapable of engaging in agriculture, like old persons, women and children, etc.,
who supplemented their income by engaging themselves in manufacturing bidis were
prohibited without any reason. Decide whether law passed by Government of Madhya
Pradesh is constitutionally valid.
Answer:
Article 19(1)(g) of the Constitution of India gives the individual a freedom to carry on any trade business &
profession.
In the case of Safdarjung Hospital V/s. K.S. Sethi it was decided that trade includes buying & selling
barter or commerce skilled work etc.
a) But the term business is wider than the term trade.
b) ―What is business & what is not‖ can be decided by applying common sense.
c) Business includes trade.
d) In the freedom of trade & business, reasonable restrictions can be imposed by the parliament.
In case the restriction on the freedom of business is not reasonable the parties can approach the Courts.

 MP Govt. passed Madhya Pradesh Act. During agricultural season no one shall be employed for bidi
manufacturing.
children could not get employment because it was diffuclt for them to carry agricultural activities. This
caustd large scale unemployment. The Supreme Court held that, the monopoly created for agriculture
sector was unreasonable.
In the case of Association of Registration Plates Vs Union of India, it was decided that State is free to create
monopoly in its favour, however the benefit of such monopoly must be in favour of state and not in faovr of
some limited class of persons.
Conclusion:
By the above discussion and the case law we can conclude, the law passed by Madhya Pradesh Govt. is
constitutionally invalid.
Que: Whether Fundamental Rights are amendable, can changes be made to Part III of
Constitution, Comment.
Ans: Many a times a question has been raised in SUPREME COURT that the F.R. given in Part III of the
constitution are amendable or not.
CASE LAWS
4) Shankri Prasad V/s. Union of India.
In this case the first amendment made to the F.R. was challenged. In this case the SUPREME COURT
decided that the power to make an amendment in the F.R. was given in Article 368 of the Constitution
of India & the parliament was empowered to make an amendment in the constitution.
5) The same judgment was given by the SUPREME COURT in case of Sajjan Singh V/s. State of
Rajasthan.
6) I.C. Golakhnath V/s. State of Punjab.

In this case the SUPREME COURT held that the parliament by passing a constitutional Amendment Act
can amend any part of constitution as well as F.R. but the amendment shall not take away the rights of
the people.
To cancel the effect of GolakNath‘s case, the parliament passed 24th Amendment Act, 1971, according to
which the power was given to parliament to make amendments in F.R. which can take away rights of the
people.
24th Amendment was challenged in the court in KeshavanandBharti V/s. State of Kerala.
The SUPREME COURT held that the parliament can make any amendment to F.R. but cannot amend or
alter the basic structure of the constitution.
Indira Gandhi V/s. Raj Narain :

In this case the Allahabad H.C. dismissed the election of Indira Gandhi on ground of corrupt practices
in meanwhile parliament passed 39th amendment Act to the constitution according to which the power
of SUPREME COURT to interfere in the elections of Prime Minister‘s was withdrawn.
In the same case, the SUPREME COURT held that the elections are related with basic structure of the
constitution & hence they cannot be amended by the parliament.
The parliament can make any amendment to constitution as well as F.R. but basic structure of
constitution cannot be amended.
To neutralize the effect of Supreme Court decision the parliament passed 42 nd Amendment Act to the
Constitution of India, by which the power of Court to interrupt in any amendment made by parliament
to the constitution after or before the 42nd amendment was withdrawn.
In the case of Minerva Mills vs. Union of India, the Supreme Court stated that the 42nd amendment
relates to the basic structure of Constitution of India and hence it‘s unconstitutional.
In the case of L. Chandra Kumar v. Union of India the Supreme Court decided that power of
judicial review is an integral and essential feature of the Constitution.
In GVK industries v. The Income Tax Officer the Supreme Court decided that Under our
Constitution, while some features are capable of being amended by Parliament, as per the amending
power granted by Article 368, the essential features - the basic structure - of the Constitution is beyond
such powers of Parliament.
Que: What is preventive detention and what are the safeguards against it?
Ans: It means detaining a person without approaching the court in police custody. The objective of
preventive detention is not to punish a person but preventing a person from committing any unlawful
activity. A person is kept under preventive detention because the police authorities are of the opinion that if
such person is left free he can commit a crime. Parliament & state legislatures can make a law on
preventive detention for the security of the Govt. / State.
SAFEGUARD AGAINST PREVENTIVE DETENTION

c) Under preventive detention a person cannot be detained for a period of not more than 2 months.
If a person has to be detained for more than 3 months an advisory board should be made of the H.C. judges
& if before the expiration of 3 months if the advisory board is of the opinion that the period of preventive
detention should be increased, than such period of 3 months can be increased, however the maximum
period of preventive detention has been reduced to a period of 2 months by the 44 th amendment Act to the
constitution, nut such changes are not notified till now so we will consider it as 3 months only.
d) The person who has been detained shall be communicated with the reasons of detention & give him the
earliest opportunity of making a representation / being heard.

Short Note on
D) Protection in respect of ex-post facto laws
Ex post facto laws mean the laws which are made after the commitment of any offence. According to
this rule, if a person has committed any wrong act then he should be punished for that act according to
the law of land at that time. If due to any amendment in law, punishment has been increased for that
act it should not be applicable to the person who committed the crime before the amendment.
For example in 1994 I abused Mohan and in 1994 abusing was not offence, In 1996 a law was made and
abusing was made offence so I will not be punished for the abusing which I did in 1994.

amendment the punishment for a corruption was increased. It was decided by the court that the
increased imprisonment was not applicable to Kedar Nath.
In the case of Shiv Bahadur Singh Vs State of Vindhya Pradesh it was decided that the
protection in respect of ex post facto laws is available in respect of imprisonments, fine and penalties
and not in respect of procedureal laws.
E) Protection against double jeopardy

According to this rule, no person shall be prosecuted & punished more than once for a single offence.
Case Law: Maqbool Husain V/s. State of Bombay
In this case, a person‘s goods were confiscated by the custom authorities as he was travelling with
undeclared goods. The prosecution was started against him under the Custom Act 1878 and another
prosecution was started against him under FERA Act, 1947. The Supreme Court decided that the
prosecution under FERA Act, was a valid prosecution.
F) Protection against self-incrimination

Article 20(3), according to this rule, no accused shall be compelled to state something which goes
against him. Every person is presumed to be innocent till any contrary is proved & it is the duty of
prosecution to proof the guilty commitment by the accused.
Case Law: In case of M. P. Sharma V/s. Satishchandra, it was decided that right of protection
from self-incrimination will be available to a person if the following conditions are fulfilled:
3) A person must be accused.
4) He is being compelled to give an evidence against himself.
In the case of Selvi Vs State of Karnataka it was decided that, this protection is also available to a
witness who believes that if he states something he will be exposed to criminal proceedings.
QUE: Explain the freedom of association under the Constitution of India. What reasonable
restrictions have been imposed on this freedom under Article 19 of the Constitution of India
?
Ans: FREEDOM OF ASSOCIATIONS 19(1)(c)

Under this freedom also public meetings can be held and processions can be taken without arms and also
associations can be formed.
Association means meeting of people for a common purpose e.g. charity, Club, Trust, Unions etc.
The freedom of association also includes a right not to form association, however this position was cleared
by Andhra Pradesh High Court in the case of, Sitharamachary Vs Senior Inspector of School, by
stating that a school teacher can not be compelled to beome the member of school teachers association.
The State can restrict this right on the grounds of sovereignty and and integirity of India, morality and
public order.
In the case of O.K Ghosh Vs Joseph, the Supreme Court said that, the right of forming an association for
achieving a particular object or for running a particular associations in not the part of freedom of
association.

Que: There is an equality in the matters of public employments as per article 16, comment on
this statement with help of case laws and also explain the concept of reservations?
Ans: Article 16(1) guarantees to all citizens equality of opportunity in matters relating to employment or
appointment of office under the State.
Article 16(2) prohibits discrimination against a citizen on the grounds of religion, race, caste, sex, descent,
place of birth or residence.
Article 16(3) states that there should be equality or equal opportunity should be provided by the state in the
matters of public employment.
Exceptions to the general rule:

8) Parliament can make law related to reservations of job for the people residing in any territory or in any
backward part of the country.
9) Reservations can be made for upliftment of any backward class.
10) Reservations can be made in respect of promotions.
11) If a law states that particular religious office shall be held by person belonging to the specific religion
then that law shall not be invalid.
12) Parliament can also make laws that particular vacancy in any state will be filled by appointing a person
from the same state.
13) If the reserved vacancies are not filled up in any year, then such vacancies can be filled in succeeding
year and when such vacancies are carry forwarded they shall not be the part of overall limit on
reservation of 50%. (agar reserved class ke vacany nai bhrti to use agle sal bhara jaega aur yeh unfilled
vacancies ko alag treat kiya jaega aur 50% ki limit main yeh pichle sal vali vacancies nai aayengi)
14) Apart from the maximum reservation limit of 50% reservations can be made up to 10% in favor of
people belonging to economically weaker sections.
Que: Article 14 prohibits class legislation but does not prohibit classification, comment.
Ans: The Constitution of India permits a reasonable classification in legislations so that the “equals may be
treated equally & unequal may be treated differently”
The Article 14 allows classification but prohibits class legislation, it means on valid ground classification can
be made but class legislation is the law that provides privilege to specific class of persons with any
justifiable ground, so tosum up we can say if privilages or rights are provided to persons on reasonable
grounds by any law we can say its classification but if privilages are granted in unjustified manner without
any lawful gorund to some persons, it will mean class legislation, Constitution allows classification but
prohibits class legislation. This rule was established in the case Ram Kishan Dalmiyan Vs Justice
Tendulkar.
For example we can not provide the benefit of Labour Laws to a Company Secretary who is working as a
Practicing Company Secretary, so must make reasonable classification in each law so as to achive some
specific objectives.
Classification in terms of applicability of law is essential so that all equals may be treated equally for
example all 3 years child must start their education from Nursery and not directly from class 12.
According to this doctrine a classification may be made by the parliament for the purpose of achieving
specific objective classification can be made between the people to whom the protection should be granted
& to whom protection should not be granted.
The classification to be valid must satisfy the following 2 conditions.

3) It must be made on intelligible ground (intelligible differentia) & with specific reason.
4) Classification should result in the achievement of the objectives.
For example, in the Contract Act, 1872 a classification has been made between the persons who are major
& minor & a special protection has been provided to the minors. The object is to protect the minors, so
when the reasaoble classification is made the minors are protected. The contract act makes a
classification which is reasonable.

Que: Vijay, an accused, committed an offence of dacoity in 2015. At that time dacoity was
punishable with imprisonment of 10 years. In 2016 during his trial, a law was passed which
made dacoity punishable with life imprisonment. Which penalty would be applicable on
accused Vijay ? Discuss the answer with reference to Article 20(1) of the Indian Constitution.
Ans: Ex post facto laws mean the laws which are made after the commitment of any offence. According to
this rule, if a person has committed any wrong act then he should be punished for that act according to the
law of land at that time. If due to any amendment in law, punishment has been increased for that act it
should not be applicable to the person who committed the crime before the amendment.
For example in 1994 I abused Mohan and in 1994 abusing was not offence, In 1996 a law was made and
abusing was made offence so I will not be punished for the abusing which I did in 1994.

amendment the punishment for a corruption was increased. It was decided by the court that the increased
imprisonment was not applicable to Kedar Nath.
In the given case, for committing dacoity the punishment in 2015 was 10 years imprisonment and Vijay
commits dacoity in that year. By a law passed after his committing the dacoity the punishment, for his act
cannot be increased to life imprisonment, because punishment cannot be increased retrospectively.
Que: Natural law says that certain rights are inherent by virtue of human nature and can be
understood universally through human reason. Explain.
Ans: Natural School
Natural law says that certain rights are inherent by virtue of human nature and can be understood
universally through human reason.
Under this school fall most of the ancient definitions given by Roman and other ancient Jurists.
Ulpine defined Law as "the art or science of what is equitable and good.‖
Cicero said that Law is "the highest reason implanted in nature."
Justinian's Digest defines Law as "the standard of what is just and unjust."
In all these definitions, propounded by Romans, ―justice‖ is the main and guiding element of law.
Ancient Hindu view was that 'law' is the command of God and not of any political sovereign. Everybody
including the ruler, is bound to obey it.
Thus, 'law' is a part of "Dharma". The idea of "justice" is always present in Hindu concept of law.
Salmond, the prominent modern natural law thinker, defines law as "the body of principles recognised and
applied by the State in the administration of justice."
In other words, the law consists of rules recognised and acted upon by the courts of Justice. It may be noted
that there are two main factors of the definition. First, that to understand law, one should know its purpose:
Second, in order to ascertain the true nature of law, one should go to the courts and not to the legislature.
Que: What are the rights relating to properties under Constitution of India?
Ans: Article 31A, 31B, and 31C - Right to property is not a fundamental right, however article 300A of
Constitution of India states that ―No person shall be deprived of property except as per the procedure
established by Law‖
The Article provides that the state may make laws in relation to the following matters:
6) The state may acquire or modify any right in a particular property.
7) The state can take over the management of any company or properties of any company.
8) There can be amalgamations or mergers of 2 municipal corporations.
9) The state can cancel or modify any right of managing agent or manager or secretary of any trust or any
municipal corporations.
10) The state can extinguish or modify lease or licenses or right of any person on a particular property
which contains oil, minerals etc.
However it shall be remembered that if state legislature has made any law then the law made by state
legislature will prevail and rights under article 31A will not be exercised and if, such law has received
consent of the president and if any law provides for acquisition or any building or structure on land then
such land will be acquired by paying a compensation which shall not be less then the market value of the
land.
The state can also make laws for ownership and control of minral resources so that they can be used in best
possible manner for the benefit of society and for making sure that the economic system does not result in
concentration of wealth which affects common people.
Chapter 4- THE GENERAL CLAUSE ACT (1897)
WHAT DO YOU MEAN BY CHIEF REVENUE AUTHORITY?

"Chief Controlling Revenue Authority" or "Chief Revenue Authority" shall mean
a) In a State where there is a Board of Revenue, that Board;
b) In a State where there is a Revenue Commissioner, that Commissioner;
c) In Punjab, the Financial Commissioner; and
d) elsewhere, such authority as, in relation to matters enumerated in List I in the Seventh
Schedule to the Constitution, the Central Government, and in relation to other matters, the state
Government, may by notification in the Official Gazette, appoint.
Rule of construction are the rules used for interpreting the contracts. Comment.
Rule of construction are the rules used for interpreting the contracts. Some states in India have codified the
rules for interpretations or constructions. However some states have not codified the rules relating to
constructions. In such as case, Judge makes a construction (interpretation) through Surrounding
Circumstances, Laws and other writings, Verbal agreements dealing with dispute.
Discuss Purposive Rule of interpretation.

As per Hashbury‘s laws of England ―A law should be interpreted in a manner that suppresses mischief and
advances a remedy‖.
The doctrine originates in Haydon‘s case where the Barons of the Exchequer resolved that for the sure and
true interpretation of all statutes in general, four things are to be discerned and considered:
(1) What was the common law before making of the Act;
(2) What was the defect or mischief for which the common law do not provide;
(3) What remedy did the parliament resolve and appoint to cure the disease of the common wealth;
(4) True reason of remedy provided by the parliament.
WHILE GOING THROUGH A LAW THERE MIGHT BE OCCASIONS WHEN TWO

PROVISIONS OF SAME LAW ARE IN CONTRADICTORY. COMMENT BY GIVING
REFERENCE TO A CASE LAW.
In this situation the rule of harmonious construction should be applied for interpretation.
As per the rule the provisions of constitution must be interpreted in a manner that they do not have a
conflict with the other provisions of constitution.
The provisions of law which have a conflict must be interpreted in a manner that all conflicting provisions
remain operative.
In the case of Ramkrishna V/s. Binod, the provisions of people‘s representation Act, 1951 were in a
conflict, as per the first provision, any government employee was entitled to nominate the candidate for
election and as per the second provision, no Govt. employee was allowed to help the candidate for election,
except by voting. The matter reached Supreme Court and the Supreme Court decided that the Government
employee may nominate the candidate for election as well as cast vote in favour of candidate for election
WHAT ARE THE PROVISIONS RELATING TO POWERS AND FUNCTIONS OF CENTRAL

GOVERNMENT AS PER GENERAL CLAUSES ACT?
The Power and Functionaries are provided under section 14 to section 19 of the General Clause Act, 1897:
If the Central Law provides the powers then such powers can be exercised by the person to whom such
powers are provided. The following are Rules relating to powers:
Power to appoint Ex Officio- If the Central Act gives power to appoint any person or fill any vacancy.
Such power shall be exercised in the name of Central Government or by any officer of Central Government.
Power to appoint to include power to suspend or dismiss- If a Central Act provides power to
Central Government to be exercised from time to time, then Central Government may exercise such power
from time to time. The power to appoint officers also includes power to suspend the officers.
Successors- The Central Government may also delegate its functions to its successor which should be a
corporation having perpetual succession.
Substitution of Functionaries- When the law requires Central Government to perform any functions,
in this case the Central Government may delegate such function to any of its officers whose name and title
shall be disclosed by the Central Government.
Official Chiefs and Subordinates- If any law provides powers to chief or any superior officer, then such
power can be exercised by deputies or subordinates exercising those powers.
Que: Where any central legislation or any regulation enacted after the commencement of the General
Clauses Act, 1897 repeals any Act, what shall not be affected by such repeal ?
Ans: If the Government repeals any act, then such repeal shall not :
a) Renew anything which was not enforced, during the repeal period.
Example: The provisions of law that were not enforced during the period when the Act was
enforceable, the same acts can not be done during the repeal period.
b) Affects the acts that were done prior to repeal.
c) Affect any claim, responsibility, suit, appeal, privilege, which was initiated or done prior to repeal.
d) Affect any punishment, enquiry, investigation or litigation which was initiated prior to repeal.
Note: If any reference is given in any law to the provision that has been repealed, then it shall be
considered that such repealed provision has been re-enacted.
Que: Discuss the aim and objects of the General Clauses Act, 1897.
This [law] Act contains definitions of the words and expressions that are used in various central acts and
regulations. Ans: The General Clauses Act, 1897 is a consolidating Act.
It consolidates the General Clauses Act, 1868 and the General Clauses Act, 1887.
The General Clauses Act, 1897 has been passed with the aim and objective to provide one single law as for
definng the words and provisions that are used in the other laws.
The General Clauses Act, 1897 contains 'definitions' of some words and also some general principles of
interpretation.
The General Clauses Act is very operational in the absence of clear definition in the specific law and in the
construction or interpretation of statute.
The Act gives a clear suggestion for the conflicting provisions and differentiates the legislation according to
the commencement and enforcement to avoid uncertainty.
This Act also defines certain words or expressions so that there is no unnecessary repetition of definition of
those words in other Acts. It also provides a set of rules which regulate certain aspects of operation of other
enactments.
The definitions of General Clauses Act, 1987 are applicable to all Central Acts and Regulations made after
the commencement of this Act, unless there is anything repugnant in the subject or context
The General Clauses Bill was referred to the Select Committee and the Select Committee submitted its
report on March 4, 1987. Based on the report of the Select Committee the Bill was passed by the Council of
the Governor-General and it came on the statute book as the General Clauses Act, 1897.

Que: Explain the provision as to offences punishable under two or more enactments under
Section 26 of the General Clauses Act, 1897.
Ans: Section 26 of the General Clauses Act 1897, deals with offences punishable under two or more
enactments. According to this section, where an act or omission creates an offence under two or more
enactments, then the offender shall be liable to be prosecuted and punished under either or any of those
enactments, but shall not be liable to be punished twice for the same Offence.
The Supreme Court observed in the case of Baliah v. Rangachari , a plain reading of section 26 shows that
there is no restriction on the trial or conviction of an offender under two enactments, but there is only a bar
to the punishment of the offender twice for the same offence.
In other words, the section provides that where an act or omission constitutes an offence under two
enactments, the offender may be prosecuted and punished under either or both the enactments but shall
not be liable to be punished twice for the same offence.
(means as per Supreme Court we can prosecute the offender under both laws but we have to ensure that for
the same act he is not punished twice)
CHAPTER 5- ADMINSTRATIVE LAW
WHAT ARE THE FOUR PRINCIPAL SOURCES OF ADMINISTRATIVE LAW IN INDIA?

It means from these 4 sources the roles and responisibilities of Administration is fixed or roles and
reponisibilites of the Govt. departments is defined.
1. CONSTITUTION OF INDIA
 Through directive principles
 Through distribution of power between union and state by way of list
 The constitution also provides fundamental rights to the citizen
The government has to protect the fundamental rights of the citizen.
2. ACTS AND STATUTES

3. ORDINANCE DIRECTIONS AND NOTIFICATIONS
The ordinances allow the administration to take necessary steps to deal with such developments.
Administrative directions, notifications and circulars are issued by the executive in the exercise of power
granted under various Acts.
4. JUDICIAL DECISION
Whenever there is dispute between the citizens and the government before the court, the court decides the
matter and after considering the case the court by its order fix the responsibility for the government.

BRIEFLY ENUMERATE THE VARIOUS MODES OF JUDICIAL CONTROL OF
ADMINISTRATIVE ACTION IN INDIA.
In India the modes of judicial control of administrative action can be conveniently grouped into three
heads:
1. THROUGH CONSTITUTION -
 Constitution is the supreme document that rules the entire country. All the organs of
government get their power from constitution. The constitution of India grants power to the
legislature to enact the various laws.
 The court decides whether a laws is constitutional or not & If the court believes that laws is
unconstitutional then the court may declare such laws as void. This process is known as Doctrine
of judicial review which was established by Supreme Court of America.
 The Court scrutinizes the executive act for determining the issue as to whether it is within the
scope of authority or power conferred on the authority exercising the power
 Any law which is Ultra virus the constitution is void.
 When any uncontrolled or misguided discretion is exercised by administration or executive the
court interferes.
2. STATUTORY
 Many laws that are passed may contain provisions for making an appeal to the high court or
Supreme Court or a reference to the high court or Supreme Court in different situation so indirectly
the administrative action under any statute is reviewed by the high court or Supreme Court
 Eg – If any party is not satisfied with the decision given by SAT (Securities appellate tribunal) then
such party may prefer an appeal to the Supreme Court as per SEBI ACT 1992
3) ORDINARY OR EQUITABLE REVIEW BY THE COURT –

 If any injustice is done to any party due to administrative action such party can approach the court &
the court may, through injunction stop the administrative action.
ARTICLE 14 PREVENTS UNREASONABLE DISCRETION GIVEN TO THE EXECUTIVE.
In many cases, laws have been challenged in the ground that it violates article 14 of constitution of India.
When the administration exercises any discretion the court consider whether the classification is valid.
In the case of State of west Bengal vs Anwar Ali Sarkar the government had formed special courts for
special category of offences to try such offence in speedy manner. However such special courts were
challenged on the ground that they violate the article 14.
The Supreme Court decided that the formation of special courts is not the right classification& is against
article 14.
Article 19 of constitution gives various power to the citizen ( Freedom of speech & expression, association
business, residence) & the article also allows the parliament to put a reasonable restrictions on such rights /
power of citizens.
So whenever the administrative actions unreasonably restrict any person to exercise the right given under
article 19, the court can declare such action as void.
In the case of HR Banthis VS Union of India, the government passed law& required license for making
a trading in gold. The Supreme Court declared this action of government as invalid as it violates the
freedom of business& found it unreasonable.
WRITE A SHORT NOTE ON ABUSE OF DISRETION:

This review will be made by the court when the administrative discretion in exercised:
The court will interfere when:

1) Authority has not exercised the discretion property - Abuse of discretion
2) When the authority does not exercise any discretion – Non application of Mind
In the following cases it will be considered that the authority has abused the discretion:
A) When the authority acts with the malafide intention. Malafide (bad faith) may be taken to mean
dishonest intention or corrupt motive. In relation to the exercise of statutory powers it may be said to
comprise dishonesty (or fraud) and malice.
Tata cellular vs Union of India, In this case, in one of the tenders invited by the Government, lower bid
was not accepted by the Government, the aggrieved party approached the court & the court cancelled the
tender on the ground that it violated article 14.
B) Irrelevant consideration -:
When the power given for one purpose is exercised for the other purpose, the court can interfere and cancel
the decision of the Government.
C) Leaving relevant consideration: - when the government authority takes any decision on the basis of
any irrelevant facts, the court can interfere.
D) Arbitrary orders: - If the government takes any decision without any sound reason court can
interfere.
E) Improper purpose – If the government passes any order for improper purpose or without any
purpose or object the court can interfere.
F) Ignorance of Principal of Natural Justice: When the administrative discretion is exercised without
complying the rule of natural justice, the court can interfere
G) Beyond the Powers: When the administrative action is beyond the power of administration
2) In the following cases the court will interfere on the ground that the authority does not exercise its
jurisdiction – Non application of mind by the executive
ACTING UNDER DICTATION
When the government acts under the direction of superior authority, without application of its own mind,
the court can interfere.
Commissioner of police VsGowardhan Das Bhanji- In this case, the commissioner of police was
authorized to cancel the petroleum Licenses, the commissioner of police on the order of state government
passed order & cancelled license without applying his own mind. The court cancelled the decision of
commissioner
B) Self Restriction: Sometime an authority restricts itself from taking an action on account of some rigid
rules or procedure made by such authority as result of which no action is taken, the court can interfere &
cancel such rigid rules.
C) Acting mechanically without due Care - When the government authority acts mechanically
without any due care, the Court can interfere.
LIST OUT THE TYPE OF BIAS.
The types of bias are as follows:

a) PECUNIARY BIAS: - It means the judge has a financial interest in the case. Thus a pecuniary interest,
howsoever insufficient, will disqualify a person from acting as a Judge.
b) PERSONAL BIAS :- in this kind of bias any party to the case may be related to the judge. He may be
friend of the party, or related to him through family, professional or business ties. The judge might also be
hostile to one of the parties to a case. All these situations create bias either in favour of or against the party
and will operate as a disqualification for a person to act as a Judge.
C) SUBJECT MATTER BIAS:- In this kind of bias the judge has a connection in the subject matter of the
litigation. The connection in the subject matter can be divided in 4 categories:
(i) Partially connected to the issue (subject matter) Example: One of the Properties of Judge‘s relative is
involved in the case.
(ii) Departmental bias. Ex. Judge has some personal conflicts with the department, which is involved in the
case
(iii) Pre judgement of the issue.Ex. Before the conclusion of hearing the Judge has made an opinion.
(iv) Acting under dictation. Ex. Judge is acting under direction of any superior Authority who has an
interest in the subject matter.
LIST OUT THE EXECPTIONS TO THE RULE OF NATURAL JUSTICE. GIVE REFERENCE TO
THE CASE LAWS WHEREVER POSSIBLE.
In the below mention cases the rule of Natural justice may be ignored
1) Statutory exception:- There may be a law that provides for exclusion of the principle of natural justice
but in those cases also, the courts follow the principle of natural justice.
The parliament can pass a law& provide for exclusion of natural justice but when it comes to natural justice
the courts as bound by constitution will always follows the principle of natural justice while deciding any
case.
2) In case of emergency: - When a prompt decision is to be taken the principle of natural justice can be
ignored. In the cases where any prompt action is required due to an emergency situation, the
Administrative Authorities can ignore the principal of natural justice, in public interest or for the public
safety. However the said decision of the administrative authorities is not final and the court may review
such decision.
Maneka Gandhi vs union of india

In cases of emergency if passport is denied without following the principle of natural justice, on account of
public interest, post decisional remedy should be given to the party concerned. The Courts can review the
administrative action.
3) Interim disciplinary Actions -When interim disciplinary actions are taken, an opportunity of being
heard is not required to be given.
For example, the order of suspension of an employee pending an inquiry against him is not final but interim
order and the application of the rules of natural justice is not attracted in the case of such order.
Abhaykumar VS A.K. Srinivasan

In this case a student was dismissed from collage till the time criminal enquiry was pending against him
without providing any opportunity of being heard. The court justified the decision of collage.
4) Academic Evaluation:- When a student is dismissed from collage for unsatisfactory academic
performance without following the principle of Natural justice, action of collage will be considered as
Justified.
5) Impracticability:- When there are many persons & it is impracticable to listen to everyone.
P. Radhakrishna VS Osmania university

In this Case exam was cancelled on the ground of mass copying & no opportunity of being heard, was given
to the students, Court Justified the action

THE LIABILITY OF GOVERNMENT CAN EITHER BE CONTRACTUAL OR TORTIOUS.
COMMENT.
The liability of the government that arises through the contract is referred as contractual liability, the
constitution allows the government of India to enter into contract however, the contracts entered by the
government will be valid if:
3) The authorised person must sign contract on behalf of the governor or State
Liability of the State must be distinguished from the liability of individual officers of the State. So far as the
liability of individual officers is concerned, if they have acted outside the scope of their powers or have acted
illegally, they are liable to same extent as any other private citizen would be. The ordinary law of contact or
torts or criminal law governs that liability. An officer acting in discharge of his duty without bias or
malafides could not be held personally liable for the loss caused to other person. However, such acts have to
be done in pursuance of his official duty and they must not be ultra vires his powers. Where a public servant
is required to be protected for acts done in the course of his duty, special statutory provisions are made for
protecting them from liability.
Que: The Parliament passed many laws in the interest of public safety and social welfare. It
imposes absolute liability in Criminal Law. Elaborate.
The Latin word mens rea is concerned with criminal liability and it means guilty mind i.e. the intention or
knowledge of wrongdoing that constitutes part of a crime. The basic principle of criminal liability is
embodied in the legal maxim ‗actus non facit reum, nisi mens sit rea'. It means that the act alone does not
amount to guilt; the act must be accompanied by a guilty mind.
The intention and the act must both concur to constitute the crime. There are many exceptional cases where
mens rea is not required in criminal law. Many laws passed in the interest of public safety and social welfare
imposes absolute liability. This is so in matters concerning public health, food, drugs, etc. There is absolute
liability (mens rea is not essential) in the licensing of shops, hotels, restaurants and chemists
establishments.
The same is true of cases under the Motor Vehicles Act and the Arms Act, offences against the State like
waging of war, sedition etc. In the interest of public safety, strict liability is imposed and whether a person
causes public nuisance with a guilty mind or without guilty mind, he is punished. If a person violates a law
even without the knowledge of the existence of the law, it can still be said that he has committed an act
which is prohibited by law.
Que: The Civil Court has power to grant temporary injunction, but for obtaining the same
the plaintiff is required to satisfy the Court. Explain in brief.
Ans: When a party makes an application to the court:
b. That the subject matter of the dispute is in the possession of the other party and such other party
may:
i. Destroy or damage such property OR
ii. Transfer that property so that the creditors or any other person may not use the property.
OR
iii. Any party threatens the other party to dispossess the party having possession of the
property or the other party threatens to dispossess the plaintiff or in any other manner cause
injury to the plaintiff in relation to any property in dispute in the suit.
It would be necessary for the party applying for temporary injunction, to satisfy the Court that:
(i) substantial harm or injury would be suffered by him if such temporary injunction (till the disposal of the
suit) is not granted
(ii) the balance of convenience (facts of the case) lies in his/ her favour and
(iii) that such loss or damage or harm cannot be compensated by damages
In all the above cases the court after making reasonable enquiries, pass a temporary injunction to stop the
parties from doing the above acts.
Que: Discuss the main feature of Statutory Corporation under Administrative Law.
The main features of Statutory Corporations are as under:
• It is incorporated under a Special Act of Parliament or State Legislative Assembly.

• It is an independent body and is free from government control in respect of its internal management.
However, it is accountable to the Parliament or the state legislature.
• It has a separate legal existence.
• It is managed by the Board of Directors, which is composed of individuals who are trained and
experienced in business management. The members of the Board of Directors are nominated by the
Government.
• It is supposed to be self sustained in financial matters. However, in case of necessity it may obtain a loan
and/or seek assistance from the government.
• The employees of these enterprises are recruited as per their own requirements by following the terms and
conditions of recruitment decided by the Board.
Que: Administrative law is the by-product of ever increasing functions of the Governments.
Now, States have no longer policies limited to maintaining internal order and external
threats. Examine.
Ans: Administrative law is the by-product or result of ever increasing functions of the Governments. States
are now no longer police states, limited to maintaining internal order and protecting from external threats.
These, no doubt continue to be the basic functions but a state
that is limited to this traditional role will de-legitimize itself.
With the rise of political consciousness, the citizens of a state are no longer satisfied with the state's
provisioning of traditional services. The modern state is, therefore, striving to be a welfare state.
It has taken the task to improve social and economic conditions of its people. It involves undertaking a large
number of complex tasks. Development produces economic and social changes and creates challenges in
the field of health, education, pollution, inequality etc. These complex problems cannot be solved except
with the growth of administration. States have also taken over a number of functions, which were
previously left to private enterprise. All this has led to the origin and the growth of administrative law.
CHAPTER 7- LIMITATION ACT, 1963
―LIMITATION BARS REMEDY BUT DOES NOT EXTINGUISH RIGHT‖. COMMENT
The limitation Act prescribes a period of limitation within which a court must be approach for justice, if a
party fails to approach court within the prescribed period of limitation. He will not be entitled to any
remedy through the court i.e. the parties cannot approach court after expiry of period limitation. However
such party always have a personal right to recover its right without the Aid of the court. So it can be clearly
stated that the limitation Act bars a remedy through court but does not extinguish the personal right.
In the case of Bombay Dying & Mfg. Co. Ltd. Vs State of Bombay, it was decided that if a claim is
satisfied outside the Court of law after the expiry of period of limitation, it is not illegal.
Que: The decision of a Court allowing a suit which had been instituted after the period
prescribed is not vitiated for want of jurisdiction. Discuss it in the light of provisions under
section 3 relating to Bar of Limitation under Limitation Act, 1963.
Ans: According to Sec. 3 of Act, if a party approaches the court after expiry of period of limitation it is duty
of court not to proceed with the case. When any suit is filed in the Court the Court should on the date of
filing of the plaint decide whether the suit or plaint is filed within or after the period of limitation.

The effect of Section 3 is not to deprive the Court of its power to entertain the cases (jurisdiction).
Therefore, decision of a Court allowing a suit which had been started after the limitation period is not
affected for want of jurisdiction. A decree passed in a time barred suit is not a nullity.
(limitation act ka maksad parties ko court jane se rokna nai hai par parties ko zimmedar banana hai ki
parties time par court jayen jis se unhe jald nyay mile)
EXPLAIN DOCTRINE OF SUFFICEINT CAUSE.
Doctrine of Sufficient Cause is contained in section 5 of Indian Limitation Act, 1963 .According to this
doctrine if a party is able to prove that it was prevented by a sufficient cause from approaching the court.
The court can accept the case if the court is satisfied that there was a sufficient cause. Section 5 is an
exception to section 3.
However it must be noted that this doctrine is applicable only to appeals and applications and not to the
suits. The section does not apply to suits because the suits already have long limitation period. Ranging
from 0 to 12 years in most of the cases.
With reference to the case law, Ramlal Vs. RevaColdfails Ltd. it was decided by the court that the
sufficient reason must be beyond the control of parties.
It is the Court‘s discretion to extend or not to extend the period of limitation even after the sufficient cause
has been shown and other conditions are also specified. However, the Court should exercise its discretion
judicially and not illogically
WHAT CAN BE CONSIDERED AS A SUFFICIENT CAUSE?

The following can be considered as a sufficient cause:
9) Wrong practice of High Court which mislead the applicant or his advocate in filing the Appeal is a
sufficient cause.
10) Sometimes wrong advice or mistake of counsel may also be considered a sufficient cause if the applicant
Acts in a good faith.
11) Sometimes mistake of law may be considered as sufficient cause but it must be noted that ignorance of
law is no excuse.
12) Serious illness or imprisonment of parties during the period of limitation can be considered as sufficient
cause.
13) Time taken for obtaining certified copy of decree with has to be attached with the Appeal can be ignored
from the period of Limitation.
14) Serious illness (ailment) of father during period of limitation can be considered as sufficient cause
(Mahendra Yadav v. Ratna Devi & others)
15) Non availability of the file with the state‘s (Govt.) Counsel, is not a sufficient cause.
16) Imprisonment of the party may also be considered as sufficient cause.
Que: PERIOD OF LIMITATION ONCE STARTED CANNOT BE STOPPED. COMMENT.

Ans: Section 9 deals with the cases in which legal disability or inability arise after cause of action. So if
any disability arises after the cause of action has taken place. No extension of time will be allowed by the
court. For the applicability of Section 9 it is essential that the cause of action or the right to move the
application must continue to exist and subsisting on the date on which a particular application is made.
Example of section 9:

Ram gave Rs. 700 to Shyam as debt and shyam promised to return the money on 25 th April 2011. On 26th
April Shyam refuse to make payment on 28th of April Ram goes mad. In this case no extension of time will
be allowed by the court.
However there is an exception to section 9: where letters of administration to the estate of a creditor
have been granted to his debtor, the running of the period of limitation for a suit to recover debt shall be
suspended while the administration continues.
So in the case of above exception if suppose creditor died without making a will, now the court has issues
a letter of administration in favour of debtor and the debtor was made incharge of properties of the
creditor now in this case if the limitation period against the debtor was already running (as the debtor
would have made a default in payments of the debts to the creditor when the creditor was alive and
limitation period was started) will be suspended as soon as the debtor gets letter of administration and it
will remain suspended till the time the debtor manages the assets (estates) of deseased creditor.
WRITE A SHORT NOTE ON:

-EFFECT OF PAYMENT ON ACCOUNT OF DEBT OR OF ON INTREST OF LEGACY.
According to Section 19 of limitation Act, if a debtor or his authorised agent, makes a payment on account
of principle or interest before expiry of period of limitation the creditor is entitled for a fresh period of
limitation from the date of part payment made by the debtor.
The word debt used in this section does not include money payable under the order or decree of the Court.
(Note: If possession of property is given to the mortgagee & the mortgagee receives some profit from the
property, such profit will be considered as part payment of the debt.)
-EFFECT OF LIMITATION UNDER CONSTITUTION:
The Constitution of India gives the power to prescribe for limitation periods under the various laws, the
power also includes the power to make amendments in various laws for increasing or limiting the period of
limitation, however a reasonable time must be allowed for approaching the Court. The amendments made
by Constitution should not affect the fundamental rights of the citizens.
The law of limitation can not be declared as unconstitutional on the ground that it stops citizens from
approaching the Court. The law of limitation only affects the future right of action of the parties. It is a
protection and not a weapon of offence.
The State cannot place any difficulty by prescribing a period of limitation in the way of an aggrieved person
seeking to approach the Supreme Court of India under Article 32 of the Constitution. In the case of
Trilokchand Motichand Vs HP Munshi, it was decided that limitation act, does not apply, when the
fundamental rights of any person are violated, however in case of immoveable properties, if a suit has to be
filed under Constitution of India, then the limitation act will apply.
In the case of State of MP Vs. Bhai Lal Bhai, it was decided that, The Limitation Act does not in terms
apply to a proceeding under Article 32 or Article 226 (Right of Constitutional Remedies) of the
Constitution. But the Courts act on the ground of the law of limitation, refuse relief if the delay is more than
the statutory period of limitation
Que: ARPIT TOOK A DEBT OF RS 10000 FROM BHARAT ON JAN, 1998 AND PROMISED TO
PAY BY 31ST DECEMBER, 2003. HE COULD NOT PAY SUCH DEBT WITHIN THE
STIPULATED TIME ON 1ST DECEMBER, 2006, ARPIT PAID RS 500 AS INTEREST AGAINST
SUCH DEBT TO BHARAT AGAINST RECEIPT, BHARAT FILED A SUIT AGAINST ARPIT TO
RECOVER SUCH DEBT ON 15TH DEC, 2008. WHETHER THE SUIT FILED BY BHARAT IS
WITHIN THE PERIOD OF LIMITATION? DECIDE WITH REASONS STATING RELEVANT
PROVISIONS OF THE LAW?
Facts:
Arpit took a loan in Jan, 1998 and promise to repay it on 31st December, 2003.
Arpit did not repay the loan on 31st December 2003
The period of limitation begin to Run on 1st Jan, 2004
Arpit paid interest on account of such debt on 1st december 2006
Bharat filed a case against Arpit on 15th December 2008
Issue:
Whether the case filed by Bharat is within the period of limitation.
Provisions
Section 19 of Indian Limitation Act, deals with effect of part payment of debt or interest, within the period
of limitation.
So as per section 19 if debtor makes a part payment of debt or interest on account of such debt within the
period of limitation, the creditor is entitled to get a fresh period of limitation from the date of such part
payment.
Conclusion:
Arpit paid the interest of Rs 500 within the period of limitation ie on 1st December 2006 and hence Bharat
will get a fresh period of limitation from 1st December 2006 to 1st December 2009. Hence the case filed by
Bharat on 15th December, 2008 is well within the period of limitation.
RAM BORROWED RS 10000 FROM SHYAM ON JAN 2009, AND PROMISE TO REPAY ON
JAN.10.2010. RAM FAILED TO PAY THE AMOUNT ON AGREED DATE, ON JAN-20-2010,
SHYAM DIED LEAVING HIS MINOR SON KUSHAL WHO WAS OF 14 YRS ON THE DATE OF
DEATH OF SHYAM. KUSHAL FILED A CASE ON JAN 10, 2016. AFTER ATTAINING
MAJORITY. WHETHER THE SUIT FILED BY KUSHAL IS MAINTAINABLE?
Facts: -
Ram borrowed Rs 10000 from shyam on Jan 1, 2009 and promised to repay the amount on jan 10, 2010.
Ram defaulted in repayment of the debt.
Shyam died on Jan 20, 2010 ie after the commencement of period of limitation.
Case was filed against Ram by son of Shyam ie Kushal on jan, 10 2016.
Issue: Whether the suit is maintainable?
Provisions:-
As per section9 of Indian Limitation Act, 1963 once the period of limitation begins, no subsequent disability
can stop the period of limitation.
Conclusion: In the given case the limitation period began on Jan 11, 2010. So the death of Shyam and
minority of Kushal will not affect the period of Limitation and hence the case for recovery should be filed
within 3 years of commencement of Limitation period.
So suit filed by Kushal is not maintainable.
RAM BORROWED RS 10000 IRAM SHYAM ON JAN 1, 2009 AND PROMISED TO REPAY ON
JAN 10, 2010. RAM FAILED TO PAY THE AMOUNT ON THE AGREED DATE, ON 5TH JAN,
2013, RAM GAVE IN WRITING A PROMISE TO REPAY THE DEBT ALONG WITH HIS
SIGNATURE. ON JAN 1, 2016 SHYAM FILED A CASE IN THE COURT AGAINST RAM.
WHETHER THE SUIT IS MAINTAINABLE?
Facts:
Ram borrowed Rs 10000 from Shyam on Jan 1, 2009 and promised to repay on Jan 10, 2010.
Ram failed to repay amount on agreed date.
On 5th Jan 2013 Ram gave in writing a promise to repay the debt along with signature.
On Jan 1, 2016 Shyam filed a case in the court against Ram.
Issue : Whether the suit filed is maintainable ?
Provisions:

As per section 8 of Indian Limitation Act, 1963 if any written acknowledgement to pay debt is given then the
party gets fresh limitation period of 3 years.
Conclusion:
In the given case the limitation period began on 5th Jan 2013, so Shyam gets the fresh limitation period of 3
years and hence suit filed against Ram is within the limitation period, so the case filed against Ram is
maintainable.
Que: The test of ‗Sufficient Cause‘ is purely an individualistic test, under the Limitation Act,
1963. Clarify.
Ans: The test of ―sufficient cause‖ is purely an individualistic test, that means it is different in different
situations. It is not a neutral test. Two types of cases can not be given similar treatment. The limitation act
has not defined concept of ‗sufficient cause‘ so basically Courts get a discretion to decide what is sufficient
cause and what is not depending upon the facts and circumstance of each case. There are no categories of
sufficient cause. In the case of R B Ramlingam v. R B Bhvansewari, it was decided that, The categories
of sufficient cause can never be fully defined. Each case has different circumstance and hence sufficient
cause in case differs.
Que: Discuss the provisions relating to persons under legal disability under the Limitation Act, 1963.
Ans: Section 6 of Limitation Act, 1963 helps the persons to file a suit who are under legal disability ex. :
Minor, lunatics, etc., in cases of these persons the period of limitation starts after the cessation of the
disability.
Where the disability continues up to the death of that person, his legal representative may institute the suit
or make the application within the period of limitation after his death (means limitation period will begin
after death)
Where a person under disability dies after the disability comes to an end but within the period of limitation,
in this case his legal representative may institute the suit or make the application within the period under
which such deceased person whold have instituted the suit if he had not died.
Section 7 applies in the case where a group of persons are under a legal disability. In this case the period
of limitation starts on date on which any of group ceases his legal disability. This principle or rule is applied
when similar rights are to be claimed by Group of persons. In order to take the benefit of section 7, it is
necessary all the persons who have to claim a common right are under a legal disability.
For example, if the case is to be filed against the trustees by the beneficiaries on account of breach of trust
obligations, and all the beneficiaries are under legal disability, the period of limitation will begin from the
day when any one of the beneficiaries ceases his disability.
Section 8 puts an overall limit on section 6 and 7. The section provides that the fresh period of limitation
after cessation of disability cannot exceed 3 years.
CHAPTER 8- CIVIL PROCEDURE CODE, 1908
EXPLAIN THE TERM ORDER, DECREE, AND JUDGEMENT.
DECREE- It is a formal expression of the court. It is passed once, in a single suit & it is conclusive in
Nature.
An appeal as well as second appeal may be preferred in superior court against a decree.
Decree can be passed only against plaints.
Decree can be passed only by the courts.
It does not include:
3) Appealable orders.
4) Any order for Rejection of any claim.
ORDER- It is a formal expression of a court & in a single suit many orders can be passed.
No appeal can be preferred in case of order. The appeal can be made only against appealable order given in
the code.
Orders can be passed on petitions & applications.
Even the quasi-judicial bodies can pass orders.
JUDGEMENT- It is ground or reason, on the basis of which any decree is passed. The court comes to a
conclusion on basis of Judgement. In other words, a "judgement" is the decision of a Court of justice upon
the respective rights and claims of the parties to an action in a suit submitted to it for determination.
Even the quasi-judicial bodies can pass judgment.
DEFINE DECREE AND EXPLAIN THE TYPES OF DECREE.
Decree is defined in Section 2(2) of the code as:

1. The formal expression of an adjudication which, so far as regard the court
expressing it;
2. Conclusively;
3. Determines the rights of the parties
4. With regard to all or any of the matters in the controversy
5. In the suit and may be either preliminary or final.
The types of decrees are as follows:
PRELIMINARY DECREE- Where an adjudication decides the rights of the parties with regard to all or
any of the matters in controversy in the suit but does not completely dispose of the suit, it is a preliminary
decree. It is passed when the court needs to adjudicate upon some matters before proceeding to adjudicate
upon the rest.
FINAL DECREE - When the decree disposes of the suit completely, so far as the court passing it is
concerned, it is a final decree. A final decree settles all the issues and controversies in the suit.
EXPALIN IN BRIEF THE KINDS OF JURISDICTION.
Jurisdiction is the practical authority granted to a legally formally constituted legal body or to a political
leader to deal with and make prouncements on legal matters, and by implication, to administer justice
within a defined area of responsibility.
The kinds of jurisdictions are as follows:
Appellate jurisdiction means a decision passed by the superior Court on appeal made by the party when
he is not satisfied with the original jurisdiction given by the Court. In other words appellate jurisdiction
means a jurisdiction exercised by the court on the appeal filed by party.

All courts except for small Civil Court (district or High Court or Supreme Court) are allowed to exercise
original as well as appellate jurisdiction.
EXPLAIN THE CONCEPT OF DOCTRINE OF RES SUB JUDICE WITH A HELP OF AN

EXAMPLE.
law, the same suit between same parties under a same title for a same subject matter cannot be filed
in any other court of law.
competent Court in India, then the Second Court shall not proceed with the trial. The second court
will stay the suit.
11) However, if the suit is pending in foreign court which is established by the Indian Government than
the doctrine of res sub judice will be applicable.
contract due to which the tenant filed a case of specific performance in the Court. In the meanwhile
the landlord filed a case against the tenant for eviction of the tenant from the leased property under
rent control act, the tenant objected the suit filed by landlord on the ground of res sub judice, the
Court decided that both the suits have different subject matters and subsequent suit can not operate
as res sub judice (N.P Tripathi Vs. Daymanti Devi)
EXPLAIN THE DOCTRINE OF RES – JUDICATA. LIST OUT CASES WHERE IT IS

APPLICABLE AND WHERE IT IS NOT APPLICABLE.
The word Res – means a ―matter‖ & judicata means ‗already decided by the Court.‘ According to this
Doctrine, if a matter is finally decided & disposed of by the competent Court of law in India, then for same
subject matter, same parties under a same title cannot approach to a different Court.
The Cases in which Res Judicata Applies, that is, the Court will not accept subsequent Suit
are as follows:
 If the Court has heard and decided the amendment decree than it will operate as Res judicata
 Suit passed by the Court that does not have jurisdiction but competent to try the suit.
 If there is some error in the judgement or decree passed by the Court.
 If the Court expresses its opinion on the consent decree passed by the Court.
 When the suit is decided on merits and appeal has been rejected on preliminary point.
The Cases in which Res judicata Does not apply, that is, the Court will accept subsequent Suit
are as follows:
 Application for amendment of Decree

 Application for review of the decree.
 The Consent decree passed by the Court which just has seal of the Court on settlement made by the
party.
 If the application of review has been rejected by the Court.
 Dismissal of suit on default and no decision has been given on merits ( decision on merits means the
decision after hearing the parties and considering the facts of the case)
DECISION GIVEN BY COURT WHICH DOES NOT HAVE JURISDICTION. COMMENT.
Decisions of a ―Court of limited jurisdiction competent to decide such issue‖ operates as res
judicata in a subsequent suit though the former Court had no jurisdiction to try the subsequent suit. The
general principle of res judicata is wider in scope than Section 11 which is applied when a case does not
come within four corners of Section 11. However, when the case falls under Section 11 but the conditions are
not fulfilled, the general principles of res judicata cannot be resorted to.
However, therIn the second suit, if any party obtains a different title – subsequent suit will be allowed.
So it can be rightly concluded that if parties approach the Court with a different title & for the same subject
matter between the same parties, the Court will allow the subsequent suit.

WHAT WILL BE THE PLACE OF SUING IN CASES WHERE COMPANY IS DEFENDANT.
In case where a plaint is to be filed against the Company, such plaint can be filed in the court in whose
jurisdiction the registered office of the company is situated. However in case of Companies or corporation,
it shall be considered that it carries its business at its principal office or sole office, if cause of action has not
arisen at any other place.
So for example A real estate company has its head office at Delhi and branch offices at Ahmedabad, Patna
and Indore. A dispute cropped up between Sorabh and the company in respect of a transaction through
Ahmedabad office, in this case, suit can be started at Delhi as the head office is located at Delhi, but as the
cause of action has arisen at ahemdabad so the case can even be started at Ahemdabad.
In the case of a body corporate or company it shall be deemed to carry on business at its sole or principal
office in India, or in case of any cause of action arising at any other place, if it has a subordinate office, at
such place.
WRITE SHORT NOTE ON

A. SET- OFF
B. COUNTER CLAIN
C. EQUITABLE SET OFF
A.SET-OFF
 The concept of setoff has been defined under order 8 and rule 6 of civil procedure code.
defendant for a certain sum of money.
13) In the same suit, the defendant also has a right to file a written statement in the court for claiming a
set off in respect of the money which he has to recover from the plaintiff.
15) Set off is the right of defendant.
defendant.
17) The defense of set off, by the defendant, shall have the same effect as a plaint in a cross-suit so as to
enable the Court to pronounce a final judgement in respect both of the original claim and of the set-
off, but this shall not affect the right of lien, upon the amount decreed, of any pleader in respect of
the costs payable to him under the decree.
B.COUNTER CLAIM
7) When the claim of defendant exceeds the claim of plaintiff this situation will give a rise to ―counter
claim‖. It is a weapon at the hands of defendant.
9) Defendant has to make a counter claim before submitting his defence in the court of law or at the
time of submitting a Defence has expired.

C.EQUITABLE SET-OFF
9) If the claims between the parties arise out of the same transaction and the claim of defendant is for
an unascertained sum of money, in this case the defendant will be allowed to claim for an equitable
set off in the same suit.
matter.
11) When parties make cross demands of money on account of a single transaction the court may grant
equitable set off.
12) The concept of equitable set of is not recognized in India. However, the Court allows, when parties
claim equitable set off.
equitable set off.
14) For example, in a transaction whereby goods are exchanged for services as well as payment, the
defendant may be allowed to claim a set off for an uncertain amount for damaged goods.
15) In a suit by a washerman for his wages, the defendant employer should be able to set off the price of
the clothes lost by the plaintiff. In such a case, driving the plaintiff to file another suit would be
unfair. A set off in such situations is called an Equitable Set off.
WHAT ARE THE REMEDIES AVAILABLE TO A DEFENDANT IF AN EX PARTE DECREE IS

PASSED AGAINST HIM?
A defendant has four remedies available if an ex-parte decree is passed against him :
(i) He may file an appeal against the ex-parte decree under Section 96 of the C.P.C.
(ii) He may file an application for review of the judgement.
(iii) He may apply for setting aside the ex-parte decree.
(iv) A suit can also be filed to set aside an ex-parte decree obtained by fraud but no suit shall lie for non-
service of summons.
EXPLAIN THE TERMS REFERENCE, REVIEW AND REVISION.
4) Reference :
When a suit has been filed in any court of law & such court wants to obtain an opinion from the High
Court about the subject matter of the suit before exercising any jurisdiction & the high court may pass
the orders as it thinks appropriate in relation to the subject matter of the suit.
5) Review :
Right to review is available with the party who is dissatisfied by an order or decree passed by the court.
An Application of Review can be made in the same court which has passed a decree or order.
Application of Review can be made on following grounds :
d) Discovery of any new evidence, document, record, information related to the case.
e) Any mistake in the decree or judgment passed by the court.
f) Or on any other sufficient ground.
6) Revision :
d) Sec. 115 deals with Revision.
e) The High Court can call for records related to any case, which has been decided by any subordinate
Court & against which no appeal has been made. It is the discretionary power of the High Courts
f) The High Court will call for Records when the High Court believes that:
MR. A WAS 14 YEARS OLD WHEN A SUIT WAS FILED AGAINST HIM. HE TURNS 20,
DURING THE CONTIUNANCE OF SUIT. WHAT ARE THE COURSES OF ACTIONS
AVAILABLE TO HIM?
As per the Provisions of the Code of Civil Procedure 1908, If minor attains majority during the continuance
of the suit, he may either:
1. withdraw or discontinue a suit- in such a case :

 The next friend of the minor will also be discharged
 The major (who was minor before) a will have to refund all expenses & loss sustained in connection
with the suit to the Defendant.
2. can continue suit- in such a case:

 Minor will give an application to the court for discharging, the next friend
 And suit will be continued in the Name of Minor.
Thus, in the given case Mr.A can either discontinue or continue the suit.
EXPLAIN IN BRIEF SUMMARY PROCEDURE.

payment of money etc.
d) High Court,
e) City Civil Court or small civil court.
f) Any other court which is authorized by high court.
5) To commence the summary proceedings, the plaintiff has to proof the following points to the court.
d) The suit is filed under order of 37 of civil procedure code.
e) The suits relates to matter covered under order XXXVII of Civil Procedure Code (i.e. Promissory
Note, Bill of Exchange, Cheques etc.)
f) The Relief claimed by the plaintiff is covered under XXXVII of Civil Procedure Code.
form.
7) The Court will send a summons to the defendant & the defendant will have to reply within 10 days
from the date of service of summons.
court.
defense.
c) Where the claim of plaintiff is accepted by the defendant & deposited into the court.
d) Where the court believes that the defense produced by the defendant is not much important.

CHAPTER 6- LAW RELATING TO TORTS
Que: ‗‗To constitute a tort, there must be a wrongful act and legal damages‘‘. Explain.
Ans: If a party wants to take action in tort then the following conditions are to be satisfied:
1) Wrongful Act
The aggrieved party [Plaintiff] has to prove that act committed by the defendant is unlawful and the law
punishes such act.
2) LEGAL DAMAGE
The wrongful act committed by the defendant must result in to legal damage.
There are 2 kinds of damages
Damnum Sine Injuria
Injuria Sine Damno
Damnum Sine Injuria :
NUKASAAN TO HAI PAR,
TORT LAW SE KOI MADAT NAI MILEGI!
The word damnum means a loss or harm in respect of money, comfort or health and injuria
means breach of a right given by law. In this case there is a damage or loss but no action can be taken
in tort, as the damage does not result in breach of any right or there is no injury so the damage is not
regarded as legal damage, which law protects. In cases of damnum sine injuria the law assumes, there is no
loss of legal right of the plaintiff.
If a person starts a shop in the nearby area due to which profits of another shop is reduced, in this case the
reduction in profit may be a damage but not a legal damage.
Injuria Sine Damno :
TUMHE KOI INJURY NAI HUI HAI PAR FIR BHI,
TORT LAW SE TUMHE MADAT MILEGI!
In this case it is considered that, there is no damage to a party, but still there is an injury to a party and
hence aggrieved party can take an action in tort, as the damage is regarded as a legal damage. This concept
assumes that, some rights are so important that their violation is actionable tort without proof of damage.
When the private rights of an individual are violated, this principal can be used. For example the act of
trespassing on land of some other person is actionable even if plaintiff does not suffer any damage.

In the case of Ashby V/s. White The court decided that, denial of voting rights may cause a legal damage.
WHAT ARE THE GENERAL CONDITIONS OF LIABILITY FOR A TORT?
In general, a tort consists of some act or omission done by the defendant (tortfeasor) whereby he has
without just cause or excuse caused some harm to plaintiff.
To constitute a tort, there must be:
1. WRONGFUL ACT: The aggrieved party [Plaintiff] has to prove that act committed by the defendant is
unlawful and the law punishes such act. In other words, it should prejudicially affect any of the above
mentioned interests, and protected by law.
2. LEGAL DAMAGE: it is not every damage that is a damage in the eye of the law. It must be a damage
which the law recognizes as such. In other words, there should be legal injury or invasion of the legal right.
The wrongful act committed by the defendant must result in to legal damage. There are 2 kinds of damages
Damnum Sine Injuria, Injuria Sine Damno.
3. LEGAL REMEDY: The remedy claimed by the party must be covered under the tort. The following
remedies are available under tort:-
Damages, Injunction, Detention of Chattel, Self Defense, Damage distress feasant.
DISTINGUISH BETWEEN DAMNUM SINE INJURIA AND INJURIA SINE DAMNO.
Damnum Sine Injuria : The word damnum means a loss or harm in respect of money,
comfort or health and injuria means breach of a right given by law. In this case there is a damage
or loss but no action can be taken in tort, as the damage does not result in breach of any right or there is no
injury so the damage is not regarded as legal damage, which law protects. In cases of damnum sine injuria
the law assumes, there is no loss of legal right of the plaintiff.
If a person starts a shop in the nearby area due to which profits of another shop is reduced, in this case the
reduction in profit may be a damage but not a legal damage.
Injuria Sine Damno : In this case it is considered that, there is no damage to a party, but still there is an
injury to a party and hence aggrieved party can take an action in tort, as the damage is regarded as a legal
damage. This concept assumes that, some rights are so important that their violation is actionable tort
without proof of damage. When the private rights of an individual are violated, this principal can be used.
For example the act of trespassing on land of some other person is actionable even if plaintiff does not
suffer any damage.
WRITE A SHORT NOTE ON STRICT LIABILITY OR ABSOLUTE LIABILITY.
In case of strict or absolute liability the defendant is liable even if he does not have any guilt intention.
Strict and absolute liability arises in the following cases :
1. Inevitable Accidents
2. Inevitable Mistakes
3. Vicarious Liability
Inevitable Accidents:

When a person stores any dangerous goods in excess quantity and as a result of such excess quantity, if any
accident takes place, owner of such premises will be liable for such accident even though he had taken all
the measures of security.
Inevitable Mistakes
These mistakes happen when a person interferes with property or reputation of some other person.
Vicarious Liability
When a person interferes with the property or reputation of some other person. “Qui facit per
aliumfacit per se”
It means ―The person who acts through any other person is responsible for the acts of such person‖
Vicarious liability arises in the following cases :
1. PRINCIPAL & AGENT

The principal is personally liable for the torts committed by his agent
2. PARTNER
One partner is responsible for the tort committed by the another partner
3.MASTER & SERVANT

For torts committed by servants master is also responsible and the liability is joint as well as several.
If the servant does any act which is outside the scope of his duty, but if it is proved that such act was done
for the benefit of the master or unauthorized act was specifically authorized by the master, the master will
be jointly and severally liable. If the servant acts against the interest of the master but for the benefit of the
master, master is responsible.
4. EMPLOYER AND INDEPENDENT CONTRACTOR

As a general rule, the owner or the employer is not liable for the torts committed by the independent
contractor, If it is proved that the owner or employer had taken a proper care at the time of appointing the
contractor.
LIST OUT THE EXCEPTIONS TO THE RULE OF STRICT LIABILITY.
In the below mentioned cases the owner is not responsible for torts:-
 Natural Use of Land :-

Keeping water in the water tank, piping in the building, planting trees, farming, construction, building
roads etc. amounts to natural
use of land. If any tort takes place due to natural use of land, the owner is not liable.
For example if Coconut falls from the tree on a person, the owner is not responsible.
 If consent of the plaintiff was taken for an act which became tort later on, owner will not be liable.
Example: In the case of Raylands Vs Fletcher, if owner of the factory would have taken the consent of the
owner of neighbouring coal mines for the construction of the reservoir then the owner of the factory would
not have been responsible.
 If the tort takes place due to the default of the third party, the owner will not be liable.
Box V/s. Jubh
In this case a stranger blocked the drainage of a reservoir due to which the water overflow the reservoir, the
owner was not held responsible by the court.
 If the tort was committed by the statutory authority at the time of discharging the statutory duties.

In this case water line busted at the time of supply of water to the households by the municipal authority.
The court did not held municipal authority responsible for busting of water line.
 Act of God :-
If any accident takes place due to flood, earthquake, storm, Tsunami or like events, the owner is not liable.
 Plaintiff‘s own default :
If the plaintiff wilfully avoids safety instructions and due to which a tort takes place, the owner will not be
responsible.
STATE THE CONDITIONS WHERE EMPLOYER IS LIABLE FOR THE ACTS OF

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

2. In torts of strict liability.
3. Negligence of independent contractor.
STATE THE CONDITION WHERE EMPLOYER IS NOT LIABLE FOR THE ACTS OF AN
INDEPENDENT CONTRACTOR.
An employer is not liable for the tort of an independent contractor if he has taken car in the appointment of
the contractor. In Philips v. Britania Hygienic Laundry Co. (1923), the owner of lorry was held not liable
when a third-party's vehicle was damaged, in consequence of the negligent repair of his lorry by a garage
proprietor.
Employers of independent contractors are liable for the "collateral negligence" of their contractors in the
course of his employment. Where A employed B to fit casement windows into certain premises. B's servant
negligently put a tool on the still of the window on which he was working at the time. The wind blew the
casement open and the tool was knocked off the still on to a passerby. The employer was held to be liable,
because the harm was caused by the work on a highway and duty lies upon the employer to avoid harm.
WRITE A SHORT NOTE ON:
6. BATTERY
When a person uses a force [however trivial it may be] such use of force is called as Battery. Intentional
application of force on other person without any legal justification.
It is touching a person, however slightly in a hostile manner or against his will.
For instance, spitting on someone‘s face, cutting hair of other person without his consent or removing a
person‘s hat or snatching paper from a person can also amount to battery as all these acts involve use of
force.
7. ASSAULT
Assault is any act of the defendant which directly causes the plaintiff immediately to apprehend a contact
with his person. Thus, when the defendant by his act creates an apprehension in the mind of the plaintiff
that he is going to commit battery against him, the tort of assault is committed. The law of assault is
substantially the same as that of battery except that apprehension of contact, not the contact itself has to be
established. Usually when there is a battery, there will also be assault, but not for instance, when a person is
hit from behind. To point a loaded gun at the plaintiff, or to shake first under his nose, or to curse him in a
threatening manner, or to aim a blow at him which is intercepted, or to surround him with a display of force
is to assault him clearly if the defendant by his act intends to commit a battery and the plaintiff apprehends
it, is an assault.

8. MALICIOUS PROSECUTION :-
2) If all the conditions are satisfied, then the defendant of malicious prosecution may take action against
the plaintiff of malicious prosecution
WHAT ARE THE REMEDIES IN TORTS.
Types of remedies in Torts:
1.JUDICIAL REMEDIES: three types of judicial remedies are available to the plantiff in an action for tort
namely:
(i) Damages
(ii) Injuction
(iii)) Specific Restitution of Property
2. EXTRA JUDICIAL REMEDIES: in certain cases it is lawful to redress one‘s injuries by means to self-
help without recourse to the court. These remedies are:
SELF DEFENSE: the aggrieved party may make a self-defense and stop the other party from causing
physical harm.
(i)TRESPASS: If some person trespasses over the property of some other person then the aggrieved
person may prevent the trespass in a peaceful manner.
(ii)DAMAGE, DISTRESS, FEASANT: - In case the cattle / chattel of any person has caused damaged to
any other person or his property. In this case such aggrieved person may retain such cattle, till the time the
(iii)STOPPING THE NUISANCE: In case any person is causing nuisance, then the aggrieved person
may prevent such nuisance in the most peaceful manner.
CHAPTER 9- INDIAN PENAL CODE
WHAT ARE THE FUNDAMENTAL ELEMENTS OF A CRIMINAL ACT?
The basic function of criminal law is to punish the offender and to deter the incidence of crime in the
society.
A criminal act must contain the following elements:

c) Human Being :
First requirement of any crime is a human being and he should have not acted in accordance
with law and should be physically and mentally fit for committing a crime.
d) Means Rea :
The basic principal of Crime is ―actus non facitreum nxisi mens sit rea.‖ Which means an act alone
is not guilty unless it is accompanied by a guilty mind.
It is an attitude that directs the act. The act is not judged from the mind of wrong doer but the mind
of wrongdoer is judged from the act.

EXPALIN THE TERM MENS REA AND THE VARIOUS TYPES OF MENS- REA. Or Discuss the
important forms of ‗mens rea‘ under the Indian Penal Code, 1860
Mens-rea is an attitude that directs the act. The act is not judged from the mind of wrong doer but the mind
In the case ofGirijanath V/s. State the Court decided that the principle of mensrea covers various kinds
of mental attitude.
The types of Mens- Rea are as follows:
1.INTENTION-
 It means a decision.
 e.g. A peson has poisoned water which was to be served to Mr. X, but Mr. Y drank and died, in this
case Ram will be liable [generic intention]
2.NEGLIGENCE-
 It means not taking care.
 It means a state of mind when there is no desire to cause any particular consequence.
 It means a person does not take standard case as established by law.
 Negligent conduct amounts to mensrea.
 e.g. A person throws stone from his house and such stone hits another person. It will amount to
negligence.
3.RECKLESSNESS-
 The actor does not desire any consequence but expects a possibility and consciously takes the risk.
It is the form of mensrea.
 e.g. Drink and drive.
LIST OUT THE EXCEPTIONS OF MENS-REA
Mens-rea is an attitude that directs the act. The act is not judged from the mind of wrong doer but the mind
In the following cases there will be liability even without mensrea:
a) In the matters relating to public, health, safety, food, drugs, motor vehicle act, arms act, etc.
b) If a person violates the law without the knowledge of law.
c) When it is difficult to prove mensrea and penalties are petty fines.
d) Public nuisance or in the interest of public safety.
ENNUMERATE THE STAGES OF CRIME.
There are 4 stages in crime.
1.Criminal Intention:
 It is Conscious exercise of faculties of mind of a person to do an act for a specific purpose.

 Law does not punish only an intention as it is difficult to prove the intention for the prosecution.
 Intention must also result in voluntary act for some specific purpose.
2.Preparation :
It means to arrange necessary resources for doing any criminal act. Generally preparation is not
punishable, as it is difficult to prove that preparation results into an offence.

3.Attempt :
It is considered as preliminary crime. The IPC does not define attempt but provides punishment for
attempting to commit a crime Attempt is a step after preparation.
A person first forms an intention, then makes a preparation and then makes an attempt, if he succeeds in
attempts, then he will be punished for crime and if he does not succeed in attempt, then he will be punished
for attempt.
The act constituting attempt must have direct connection with the intended result.
4.Commission of Crime or Accomplishment :
If the accused is successful in his crime, then he will be punished for crime.
LIST OUT THE CASES UNDER WHICH DEATH SENTENCE CAN BE AWARDED.
Death Sentence is the harshest punishment
It is a judicial killing
As per the direction of Supreme Court, death sentence, should be given in rarest of rare cases.
In the following cases death sentence may be awarded:
7) Murder
8) Abetment of suicide by minor or lunatic person
9) Decoity and murder
10) Attempted murder by life convict.
11) Fabricating false evidence upon which innocent person suffers death
12) Abetting mutiny actually committed.
Whenever the court awards death sentence, it has to gives reasons.
WRITE A SHORT NOTE ON CRIMINAL CONSPIRANCY.
When two or more persons agree to do or cause to be done:
o An illegal act, OR
o An act which is not illegal but through illegal means.
conspiracy which are as follows:
i. Agreement between two or more persons

ii. The agreement must relate to
 Doing an illegal act, or
 A legal act through illegal means
As per Halsbery‘s laws of England, conspiracy crises when two parties combine by an agreement,
In case of R. Venkata Krishna Vs CBI, the Supreme Court decided, essential elements of criminal
conspiracy are, agreement between two or more persons and the agreement must relate to illegal act or
the legal act through illegal means.
In the case of National Capital Territory of Delhi Vs Navjot sandhu, the accused had never
contacted the deceased terrorist on the place but had helped one of the terrorists to flee to a safer place
after the incident, the accused was not held guilty for criminal conspiracy.
The punishment for criminal conspiracy is as follows:

i. If the criminal conspiracy was done to commit offences punishable with death life
imprisonment or imprisonment for 2 years or more. Punishment will be given in the same
manner as he has abetted [encouraged] the offence.
ii. In any other offence imprisonment upto 6 months. More severe punishment will be given, if the
agreement is to commit a serious offence, which is less severe otherwise.
EXPLAIN THE TERM DEFAMATION AND THE TYPES OF DEFAMATION.
Whoever by words spoken or intended to be read or by signs or by visual representation makes or publishes
any thing with the intention to harm the reputation or to defame any person.
It may also be against the deceased person if it affects his family and relatives.
It may also be against company or any AOP.
It should lower the moral character of a person.
The following cases are not covered under the scope of defamation:-
10) Importation of truth which is in public interest.

11) Public conduct of public servants.
12) Conduct of any person touching any public question.
13) Public of report of proceedings in the court.
14) Merits of the case decided in the court.
15) Censure passed good faith.
16) Accusation preferred in good faith to authorized person.
17) Imputation made in good faith by person for protection of his interest or other‘s interest.
The punishment for defamation is 2 years imprisonment or fine or both.
There are two types of defamation, which are as follows:
Libel- This kind of defamation is in permanent or visible form. It may be through written words, or printed
words, or pictures, video.
Slander- It is a defamation through spoken or audible words, which is in transitory form [temporary]. It
also includes gestures.
Que: A is a warehouse-keeper. Z going on journey entrusted his furniture to A, under a contract that it shall
be returned on payment of a stipulated sum for warehouse room. Before coming Z from journey, A has sold
furniture. What offence has been committed by the A and what is punishment for it ? Explain
Ans: A has committed the Offence of ―Criminal Breach of Trust‖.
As per section 405 of Indian Penal Code 1860, A person who was entrusted with a property dishonestly
misappropriates the property or converts the property for his own use or disposes of the property in
violation of any law and breaches the trust.
As per section 407, If a person is a carrier warehouse, keeper, godown, owner or incharge of warehouse and
dishonestly misappropriates the property.
Punishment upto 7 years jail + fine, so in this case A who was were house keeper to whom property was
given on trust has sold the furniture without the permission of Z and has caused criminal breach of trust so
he will be punishable under section 408.

Que: Describe kinds of offences under which capital punishment may be awarded by Court
under Indian Penal Code.
Ans: A death sentence is the harshest of punishments provided in the Indian Penal Code (IPC), which
involves the judicial killing or taking the life of the accused as a form of punishment. The Supreme Court
has ruled that death sentence ought to be imposed only in the "rarest of rare cases". The IPC provides for
capital punishment for the following offences: (a) Murder (b) Dacoity with Murder. (c) Waging War against
the Government of India. (d) Abetting mutiny actually committed. (e) Giving or fabricating false evidence
upon which an innocent person suffers death (f) Abetment of a suicide by a minor or insane person; (g)
Attempted murder by a life convict. The capital punishment is awarded only in two categories of offences,
namely treason and murder. In either of the cases, when the court decides that death penalty is the
appropriate sentence to be imposed in the light of the gravity of matter and consequences of the offence
committed and the absence of mitigating factors, then the court under the provisions of section 354(3) of
Criminal Procedure Code (CrPC) has to give special reasons as to why the court came to this conclusion.
Que: Allegation against the accused was that he furnished a certificate to get employment as
ETT Teacher which was found to be bogus and forged in as much as school was not
recognized for period given in the certificate. However, the certificate did not anywhere say
that school was recognized. Whether the accused is guilty of any offence ? Explain with the
help of decided judicial precedent.
As per section It includes
False Documents [OR] False Electronic record
With an intention of :
Causing damage To commit fraud. Injury to public Injury to Person To convince any
OR OR OR OR person to
transfer his
property.
All the above acts amount to forgery.
The Supreme Court in the case of Ramchandran v. State, decided that to make an offence of forgery,
document must be made with dishonest or fraudulent intention.
A person is said to do a thing fraudulently if he does that thing with intent to defraud and not in any other
manner.
The Supreme Court in Parminder Kaur v. State of UP, has decided that only alteration of document
does not make it a forged document. Alteration must be made for some gain or for some objective.
Similarly, in Balbir Kaur v. State of Punjab, the allegation against the accused was that she furnished
a certificate to get employment as ETT teacher which was found to be bogus and forged as school did not
have recognition for period given in certificate. However the certificate did not anywhere say that school
was recognized. It was decided that by only indicating teaching experience of the accused, it cannot be said
that it indicates wrong facts. So the direction which was issued for prosecution is liable to be quashed.
In view of the above, the accused is not guilty of any offence.
Que: The Indian Penal Code, 1860 provides for general exceptions for a person accused of
committing any offence under the code to plead in his defence. Explain any eight exceptions.

Ans: The Indian Penal Code, 1860 (IPC) provides for general exceptions for a person accused of committing
any offence under the Code to plead in his defense. General defences or exceptions are contained in sections
76 to 106 of the IPC. In general exceptions to criminal liability there will be absence of mens rea (guilty
mind) on the part of the wrong-doer. If there is any general defense of the accused in a criminal case, the
burden of proving lies on him under section 105 of the Indian Evidence Act, 1872. The exceptions are:
1. Mistake of Fact bound by law
2. Act of Judge when acting judicially
3. Act done pursuant to the judgment or order of Court
4. Mistake of Fact-justified by law
5. Accident in doing a lawful act
6. Act likely to cause harm, but done without criminal intent, and to prevent other harm
7. Act of a child under seven years of age
8. Act of a child above seven and under twelve of immature understanding
9. Act of a person of unsound mind
10. Act of a person incapable of judgment by reason of intoxication caused against his will
11. Offence requiring a particular intent or knowledge committed by one who is intoxicated
12. Act not intended and not known to be likely to cause death or grievous hurt, done by consent
13. Act not intended to cause death, done by consent in good faith for person's benefit
14. On consent of guardian if any act is done in good faith to it
15. Consent
16. Exclusion of acts which are offences independently of harm caused
17. Act done in good faith for benefit of a person without consent
18. Communication made in good faith
19. Act to which a person is compelled by threats
20. Act causing slight harm.
Que: The ‗Privileged Communications‘ are based on Public Policy and a witness cannot be
compelled to answer the same during the evidence in the Court or before any other
authority. Explain in brief.
Ans: There are some facts, of which evidence can not be given, means even if these facts are
stated in the Court, the Court will not accept these facts.
Privileged Communication
Evidence Source of Communication Professional Affairs of state Official

given by a information during communication Section 123, Communication,
Judge or to a police marriage, between an Internal Section 124,
Magistrate: officer Section 122, advocate his matters or Communication
Section 121 relating to Protected even client, CS & his unpublished between officers
fact on after divorce client. communication of government.
relevant fact. Section 126 of government.
Section 125 and 129. E.g The

notifications
that are yet to
be published or
cabinet papers
or notes taken
by the Govt
officials.
Que: Naveen takes property belonging to Ganesh out of Ganesh possession in good faith
belonging at the time when he takes it that the property belongs to himself. Later on Naveen
discovers his mistake, dishonestly misappropriates the property to his own use. Explain
what offence he has done ?
Ans: Section 403 and 404 of the Indian Penal Code, 1860 deals with Criminal Misappropriation of
Property. According to Section 403 of the Indian Penal Code, 1860, whoever dishonestly misappropriates or
converts to his own use any movable property, shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with both.
In the present case Naveen takes property belonging to Ganesh out of Ganesh's possession, in good faith
believing at the time when he takes it, that the property belongs to himself. Naveen is not guilty of theft; but
if Naveen, after discovering his mistake, dishonestly appropriates the property to his own use, Naveen is
guilty of an offence under this section.
Que: Ramu is accused of a crime. He suddenly left his house after commission of the crime.
He explained to the court that he had sudden and urgent business at the place to which he
had gone. He also gave the details of his business there. Discuss, what facts are relevant and
not relevant in this case.
Ans: As per section 8 of Indian Evidence Act, 1872, The conduct of the party whether previous or
subsequent of the accused or his agent, which influences the issue or is influenced by the issue canbe
considered as relevant fact, if a fact becomes relevant then court accepts that fact as evidence.
Subsequent conduct includes the acts committed after the issue (disputed fact)
In the given case Ramu suddenly left his house after the commission of Crime, it can be considered
as a relevant fact.
His explanation that he had sudden and urgent business are also relevant.
The details of business is not relevant, however such details will be relevant only to explain that
business was sudden and urgent.
(business kya hai us se kya lena dena,ha itna jan na hai ki business urgent tha)
Ques: A is the publisher of Malyali newsper, B gave an advertisement is the newspaper in

Hindi Language which B did not know and such advertisement was defamatory to C. C filed a
suit of criminal defamation against B. B stated that the advertisement was in Hindi language
which he does not understand. Will the court accept the defence given by B.
Answer:
As per the provisions of Indian Penal Code Whoever prints or engraves any matter, knowing that such
printing or engraving may be defamatory or cause defamation to some person. Such person shall be
punished with 2 years imprisonment or fine or with both.
In the case of Shankaran V/s. RamkrishnaPillai, it was decided that if defamatory matter was
published in Malyalam which the accused did not know, there is no mensrea and hence there will be no case
of defamation.
So in the given case study the Court will consider the defence of B as he did not have a Mensrea against C.
Que: The Mens Rea is an essential element to constitute an offence under Indian Penal Code,
1860, discuss briefly.

Ans: Mens Rea means guilty intention. According to the principle of Mens Rea, no one shall be punished
according to the law, until he has a guilt intention. Intention involves knowledge of probable outcome.
The fundamental principle of penal liability is embodied in the maxim actusnon facit ream nisi mens sit rea.
The act itself does not constitute guilt unless done with a guilty intent. Thus, unless an act is done with a
guilty intention, it will not be criminally punishable.
The motive is not an intention. Intention involves foresight or knowledge of the probable or likely
consequences of an injury. In short, mens rea is the state of mind which accompanies and directs the
conduct resulting in the actus reus.
It is an attitude that directs the act. The act is not judged from the mind of wrong doer but the mind of
wrongdoer is judged from the act.
In the case of Girijanath V/s. State the Court decided that the principle of mensrea covers various kinds
of mental attitude.
So by above discussion we can conclude that Mensrea is an essential element to constitute crime.

CHAPTER 10- CRIMINAL PROCEDURE CODE, 1973
IS THE CODE OF CRIMINAL PROCEDURE A SUBSTANTIVE OR AN ADJECTIVE LAW, OR

BOTH?
The Code of Criminal Procedure, 1898 (Cr. P.C.) was repealed by the Code of 1973 en acted by Parliament
on 25th January, 1974 and made effective from 1.4.1974 so as to consolidate and amend the law relating to
Criminal Procedure.
Company Secretaries and the secretarial profession would have relatively less to do with the Code of
Criminal Procedure than with other procedural laws, except for safeguarding against incurring of liability
for criminal offences by Directors, Secretary, Manager or other Principal Officer under different corporate
and industrial laws. Nevertheless, it is necessary that company secretaries and other secretarial staff should
be familiar with some of the relevant features of the Code.
It is an Act to consolidate and amend the law relating to the procedure to be followed in apprehending the
criminals, investigating the criminal cases and their trial before the Criminal Courts.
It is an adjective law but also contains provisions of substantive nature.
It's object is to provide a machinery for determining the guilt of and imposing punishment on offenders
under the substantive criminal law, for example, the Indian Penal Code (I.P.C.).
The two Codes are to be read together. The Code also provides machinery for punishment of offences under
other Acts.
DIFFERENCE BETWEEN COGNIZABLE AND NON COGNIZABLE OFFECE
Cognizable Non-Cognizable
It is the offence in which a police officer can It is the offence in which a police officer cannot
arrest the convict without the warrant. arrest a person without the warrant.
The police can start a preliminary The police officer cannot start the investigation
investigation without the permission of the without the permission of the court.
court or without registering the FIR.
These are heinous crimes like murder, rape, These crimes are not so serious like forgery,
dowry death etc. cheating, defamation etc.
The victim can file an FIR or make a complaint The victim can only make a complaint to the
to the magistrate. magistrate.
It is defined in the Section 2(c) of the Criminal It is defined in Section 2(I) of Criminal
Procedure Code, 1973. Procedure Code 1973.
The police officer is bound to register the FIR The police officer is not bound to register the
even without the permission of Magistrate. FIR or cannot register the FIR without prior
permission of the magistrate.
It is a non-bailable offence. It is a bailable offence.
WRITE A NOTE ON INVESTIGATION, ENQUIRY AND TRIAL.
 INVESTIGATION

i) It is the process of collecting evidences.
ii) Investigation is done by a police officer on his own or under the orders of the magistrate. After
completion of investigation, the police officer forwards a report to the magistrate.
iii) When Magistrates receives the report, he will have 2 opinions
 Offence has been committed.
 Offence has not been committed.
iv) If offence is not committed, the case will be rejected.
v) If offence has been committed magistrate will order for an enquiry.
 INQUIRY
i) After completion of investigation the second stage begins i.e. inquiry.
In inquiry, Court appoints an Officer to make an inquiry related to the case (magistrate may himself also
make the enquiry), the purpose of making inquiry is to collect strong evidences related to the case.
object of an inquiry is to determine the truth or falsity of certain facts with a view to taking further
action
ii) Defendant is traced in inquiry and after completion of inquiry, the officer appointed by the Court
forwards the Report to the Magistrate and Magistrate orders for a trial.
iii) Inquiry stops when trial begins.
 TRIAL
1) After completion of enquiry, Trial begins. In Trial both the parties appear before the court,
complainant raises grievances and defendant produces his defenses.
2) After hearing both the parties, court passes an order.
A POLICE OFFICER MAY MAKE AN ARREST WITHOUT WARRANT OR ORDERS FROM

MAGISTRATE. COMMENT. ALSO CAN A PRIVATE PERSON CAUSE ARREST WITHOUT
WARRANT.
In the following cases a police officer may make an arrest without warrant or orders from Magistrate:
10) If a person has committed a cognizable offence and the police officer have reliable information about his
linkage in the cognizable offence.
14) Any person who obstructs a police officer while discharging his duty or who attempts to escape from the
police custody.
Notice.
18) Any person for whose arrest request has been received from another police station & the request clearly
specifies the name of the person and the offence committed by the person. Such police officer who has
received a complaint may make an arrest without warrant.
If any cognizable offence takes place in presence of any person, such a person can make an arrest.
If any person finds a proclaimed offender such person can make an arrest.
This right of arrest arises under the Common Law which applies to India Re. Ramaswamy Aiyar Case
DIFFERENTIATE BETWEEN A SUMMON AND A WARRANT.
a summon is:
6) A Summon is issued by the court for appearance of the parties or production of any document or any
evidence in the court.

7) Summon shall be in writing and signed by Presiding officers of the court or by any other officer
authorized by the High Court.
8) Summon shall bear a seal of the court.
9) Summon should clearly specify the day, date and time and place for making an appearance in the court.
10) Summon is issued in the cases where the offence is punishable with an imprisonment of less than 2
years.
Whereas, a warrant:
3. Warrant means a permission given by the magistrate to the police officer or any other officer authorized
by the court to make an arrest.
4. A valid warrant must fulfill the following conditions :
g) It must be written.
h) It must contain the name of the officer who is to execute the warrant.
i) It must also state the name of the person to be arrested and description of his offence.
j) It must be signed by the preceding officer of the court.
k) It must have seal of the court.
l) A warrant will remain valid until an arrest is made or is cancelled by the court.
EXPLAIN THE TERM PROCLAMATION AND ATTACHMENT.
If the warrant issued by the court remains unexecuted the court may take following steps:
c) Issuing proclamation : Section 82.
d) Attachment of property: Section 83.
3) Proclamation :
Proclamation means a formal declaration / Announcement, when a warrant issued by the court remains
unexecuted and the court believes that the accused is absconding to avoid the warrant issued against
him. The court can publish a written proclamation to compel his appearance in the court. The
proclamation must specify the date and time for appearance. The accused must present himself in the
court or any other place specified by the court in a period of 30 days or more (not less than 30 days)
from the date of issuing proclamation.
4) Attachment: If the accused does not appear within the time specified by the Court, after issuing
proclamation, the court can pass an order for attachment of the properties of the accused. Attachment is
the step followed after proclamation.
The purpose of attaching the properties is not to punish the accused but to compel his presence in the
court.
EXPLAIN HOW SEARCH IS CARRIED OUT BY A POLICE OFFICER.
Section 165 authorises general search if the police officer has reason to believe that anything necessary for
the purpose of an investigations may be found.
The officer acting under this section must record in writing his reasons for making of a search. But, the
illegality of search will not affect the validity of the articles.
completed within the period of twenty four hours and if there are grounds for believing that the accusation
or information is well founded, the officer in charge of the police station or other competent investigation
officer shall promptly transmit to the nearest judicial Magistrate a copy of the entries in the diary relating to
the case, and shall forward the accused to such Magistrate at the same time.
fifteen days.
Every investigation must be completed without undue delay. On completion of investigation, the competent
police officer under the Code shall forward a police report with the prescribed details to a Magistrate
empowered to take cognizance of the offence and send along with the report all documents or relevant
extracts on which the prosecution intends to rely.

WHAT IS SUMMARY TRIALS? WHICH ALL OFFENCES CAN BE TRIED UNDER SUMMARY
TRIALS?
4) Summary Trial means speedy disposal of the cases.

5) The offences which are punishable for a term not exceeding 2 years can be tried summarily.
6) The following magistrates are authorized for Resolving a case by summary trial :
c) Chief Judicial Magistrate (C.J.M.)
d) Any magistrate of first class who is authorized by High Court.
The offences which can be tried summarily

6) Offences which are punishable for an imprisonment up to 2 years.
7) In the cases related to theft and the value of stolen property does not exceed Rs. 2000.
8) If any stolen property is found in possession of a person and the value of stolen property does not
exceed Rs. 2000
9) If any person conceals or disposes of any stolen property and the value of stolen property does not
exceed Rs. 2000.
10) If any person attempts to breach the peace.
When magistrate accepts any case for a summary trial and during the trial the magistrate believes that it is
undesirable to try the case summarily, the magistrate may recall the witness and re-hear them in a manner
provided in a code.
Under summary trial maximum 3 months‘ imprisonment can be granted.
CHAPTER 11- INDIAN EVIDENCE ACT, 1972
WRITE A NOTE ON LOGICAL RELEVANCY AND LEGAL RELEVANCY.
Logical Relevancy: If a fact is logically relevant but legally irrelevant [because it could not be proved]
then it will not be considered as a fact related to case.
For example, confession made to police officer may be logically relevant but not legally relevant, as section
25 of evidence act declares that it such confession before police officer cannot be considered as confession.
Legal Relevancy: A fact is legally relevant but logically irrelevant, then such fact will be considered as a
fact related to the same.
In some cases a judge may consider a fact as legally relevant if it is logically relevant.
In some cases a fact may be legally as well as logically relevant but still it will not be considered as evidence
on the ground of public policy.
EXPLAIN WITH A HELP OF AN EXAMPLE THE TERM RES GESTE FACTS.
Ans: These are the circumstantial facts which are the part of the transaction. These facts are the part of
same transaction. These facts are associated to the main act in such a manner that they become the part
of issue (referred as transaction or acts).
e.g. A person saw 2 ladies entering in the room and after some time a lady called ―help‖ ―help‖, after 2 days
the body of a lady was recovered from the same room. The statement of the person who saw the lady
entering can be considered as res-geste fact.
e.g. A person is accused of beating the other person with club, the statement given by the bystanders, or the
surroundings of the place where the transaction took place, can be considered as res geste fact.
A sues B for libel, the letters are exchanged forming part of the correspondence relating to subject out of
which libel arose, can be considered as relevant fact.
DIFFERENTIATE BETWEEN ADMISSION AND CONFESSION.

Admission Confession
1) Covered under Section 17 – 31 of 1) Covered under Section 24 – 30 of Indian
Indian Evidence Act. Evidence Act.
2) Admission is oral, documentary 2) Confession means oral, documentary, or
electronic that suggests any fact in electronic statement relating to any fact
issue or any relevant fact made by an in issue or relevant fact made by an
accused. accused before a person in authority.
3) It can be made by accused himself or 3) Confession has to be made by the
his agent or his predecessor in accused himself.
interest.
4) Admission is always self harming 4) Confession is against the maker and the
co-accused.
5) In the case of Basant Singh V/s. 5) Confession has to be voluntary.
Jacky Singh the court decided that
admission made by Government is Case :Palaka Narayan Sami V/s. Emperor.
not relevant unless acted upon it. It was held that a statement that frees a person
from a guilt is not a confession.
6) Admission can also be made under 6) There are two types of confession :
compulsion. a) Judicial Confessions :
The confessions made before Judge
or a Magistrate.
b) Extra Judicial Confession :
The confession that are made before
the police officer or before any person
authorized by court.
7) Court never acts on the basis of
admission.
8) Court never treats a person as guilty
on the basis of admission.
9) As per section 58, the facts that
contradict with the admission may
also be considered as relevant.
For example if a person states that
he did not meet the deceased before
his death, but CCTV footage suggests
that he met with deceased, Footage
may be considered as relevant.
LIST OUT THE CASES IN WHICH STATEMENT OF A PERSON CANNOT BE CALLED AS

WITNESS.
1) Statements made by the person who are dead or cannot be found. Can be considered as relevant fact if
the following conditions are satisfied :
2) Statement must relate to fact in issue
3) Statement made in any will may be considered as relevant.
4) Statement must be made in the ordinary course of business.
5) When a person expresses his emotions or feelings through some other person then statement of such
other person can also be considered as relevant fact.
6) Statement must relate to cause of death.
7) Statement before controversy, relating to any relationship.
8) Dying declaration has to be against the maker.
9) Statement that relates to a public right or custom of any place may also be considered as relevant.
10) Evidences given in the judicial proceedings or before any person authorised by law may be considered
as relevant if the proceeding was between the interested parties and the opposite party was given an
opportunity to cross examine.

EXPLAIN THE TERM EVIDENCE AND TYPES OF EVIDENCE.
Evidence means and includes:
Statements that the court permits or are required to be made as per the orders of the court by the witness.
Such statements are called as oral evidence.
As per section 60, oral evidences refer to a ―fact‖ which could be seen and given by the person who saw it or
a fact which could be heard and given by the person who heard it or a fact which could be perceived and
given by the person who perceived it, oral evidences are described as best evidences.
Statement of experts are also referred as oral evidences.
The documents produced for the inspection of the court, are called as documentary evidences.
The documentary evidences are classified in:
a. Primary Evidence: if the original copy of any document is presented in the court for the inspection of
the court, it becomes primary evidence.
b. Secondary Evidence: if the original copy of any document is lost or destroyed and is not available for
inspection of the court than, certified copy or the facsimile copy or photograph or written statements read
before the court, such evidences become secondary evidences.
STATE THE CASES IN WHICH OPINION OF EXPERTS IS RELEVANT.
As a general rule the opinion of a witness on a question whether of fact, or of law, is irrelevant. Witness has
to state the facts which he has seen, heard or perceived, and noted the conclusion, form of observations. The
functions of drawing inferences from facts is a judicial function and must be performed by the Court.
However, to this general rule, there are some exceptions as indicated in Section Opinions of experts are
relevant upon a point of
(a) foreign law
(b) science
(c) art
(d) identity of hand writing
(e) finger impression special knowledge of the subject matter of enquiry
LIST OUT THE TYPES OF EVIDENCES.
There are two types of evidences:
WITH DOCUMENTS I.E., WRITTEN EVIDENCE
It can be further classified as:
Primary evidence- If the original copy is produced before the court it becomes primary evidence.
Secondary evidence- If the original copy is not available or has been destroyed or lost then :
1) Certified copy of documents

2) Facsimile copy
3) Photographs
4) Oral statements, read before the statement.
WITHOUT DOCUMENTS, i.e, ORAL EVIDENCE

All the facts except content of a document can be proved by oral evidence.
Oral evidences are direct evidences and these evidences refer to :
If the fact could be seen, the person who saw it may give an oral evidence.
1) Opinion of persons may also be considered as oral evidence

2) If the fact could be heard, the person who heard it will give oral evidence
3) If the fact could be perceived by senses the person who perceive such fact will give oral evidence.
WRITE A SHORT NOTE ON ESTOPPEL
Estoppel means a fact which is stated once cannot be decided later on.
It is based on the principle ―Alleganscontratia non-estaudiendus‖.
Which means ―Contrary fact stated by a person shall not be admitted‖.
In the case of MohiniBiwi V/s. Dharam Das Ghosh. It was decided that rule of estoppels will not
apply when a person knows the real facts.
In the case of Biju Patnaik Tech University Vs Siaram Collage, the students appeared for the final
examinations, after declaration of the result, the university asked the students to give additional papers to
get the degree, the Court estopped the university from taking the additional examinations.
Kinds of Estoppel
Estoppel by attestation.
Estoppel by Contract.
Constructive Estoppel.
Equitable Estoppel.
Estoppel by Silence.
Estoppel by Election.
Que: Write a short note on Presumptions?
Ans: PRESUMPTIONS
Presumptions give a prima facie idea about the case. Through presumptions the Court gets a prima
facie idea of the case. Presumptions change from circumstances to circumstances.
In the Indian Evidence Act, 1872, presumptions are no where defined, however section 4 of the Act,
refers to:
d) Conclusive Proof: Referred as irrevocable presumptions – facts ke aadhar par law ka andaza
lagana jise court presume kar chukka hai auryeh jhuthlaya nai ja sakta.
e) Shall Presume: It refers to revocable presumptions of law – kisi factke aadhar par law ka
andaza lagana.
f) May Presume: It refers to presumptions of fact – ek fact ke addharpar dusre fact ka andaza
lagana – revoke ho sakta hai!
Kinds of Presumptions:

d) Presumptions of Law: the Court makes an inference ofcircum
e) Presumptions of fact: Court makes inference of fact.
f) Mixed Presumption: Court makes inference of facts as well ascircumstances.

Example: Murder was committed in the room and 2 men walked out ofthe room, it can be
presumed that such 2 persons committed murder.
Ques: Mohan and Sohan are jointly tried for the murder of Rohan. It is proved that Mohan
said, Sohan and I murdered Rohan‖. Can the court consider the effort of this confession as
against Sohan? Give reasons?
Answer :
Facts:
1. Mohan and Sohan are jointly being tried for the offence of murder.
2. Mohan made a confession before the Mergistrate that he and Sohan jointly committed the murder.
Issue:
Whether the confession made by the Mohan be valid against Sohan?
Provisions:
Section 24-30 of Indian Evidence Act, 1872 deals with confession. Confession is the statement made by an
accused before the person in authority, it has to be voluntarily made and on basis of confession the court
may grant punishment.
The confession made by accused is also valid against the co-accused who is being jointly tried, with the
accused in relation to the offence.
Conclusion:
In the given case study the confession made by Mohan will be considered as evidence against Sohan.
Ques: A confession made by an accused on the faith of a promise made by the police officer
making the investigation that he would get off if he made a disclosure of the offence
committed by him or would get pardon. Whether such a confession made by the accused is
admissible in evidence? State the relevant provisions of law?
Answer:
Facts:
The police officer made a promise that, if the accused makes true disclosures and confession before the
magistrate, he will get a pardon.
2. The accused on the faith of police officer‘s words made a confession before the magistrate.
Issue:
Whether the confession on the faith of police officers word be used against the accused.
Provisions
As per Section 24-30 of Indian Evidence Act, 1872 the confessions are to be the voluntary, without any
pressure or under any threat. The confessions made to gain some advantage, which was assured to the
accused by the police officer or any other person, will also not be considered as voluntary confession.
Conclusion:

In a given case study, the confession made by the accused will not be considered as evidence.
Ques: Ragini told Rajendra in the year 2007 that she had committed theft of the jewellery of
her neighbour Asha. There after, Ragini and Rajendra were married in the year 2008. In the
year 2009, criminal proceedings were instituted against Ragini in respect of the theft of the
said jewellery. Rajendra is summoned to give evidence in the said criminal proceedings.
Decide whether Rajendra can disclose the communication made to him by Ragini in the year
2007, in the criminal proceedings in respect of the theft of the jewellery.
Answer:
Facts:
In the year 2007, Ragini told that she had committed theft of jewellery of Asha.
In the year 2008, Ragini and Rajendra were married.
In the year 2009, prosecution was started against Ragini in which Rajendra was called to give evidence.
Issue: Can Rajendra give evidence against Ragini?
Provisions:
As per the provisions of Indian Evidence Act, 1872 there are some facts of which evidence cannot be given,
which includes privilege communication.
The communication between the husband and wife, held during the marriage is a privileged communication
and no evidence of this communication can be given in the court. This communication is protected even
after divorce
Conclusion:
In the given case study the evidence relates to the fact which was communicated before the marriage and
not during the marriage and hence Rajendra can give evidence against Ragini.
Ques: What do you mean by Estoppel ?
It means a fact which is stated once cannot be decided later on.
It is based on the principle ―Allegans contratia non-est audiendus‖.
Which means ―Contrary fact stated by a person shall not be admitted‖.
In the case of MohiniBiwi V/s. Dharam Das Ghosh. It was decided that rule of estoppels will not
apply when a person knows the real facts.
In the case of Biju Patnaik Tech University Vs Siaram Collage, the students appeared for the final
examinations, after declaration of the result, the university asked the students to give additional papers to
get the degree, the Court estopped the university from taking the additional examinations.
Kinds of Estoppel
Estoppel by attestation.
Estoppel by Contract, Constructive Estoppel, Equitable Estoppel, Estoppel by Silence, Estoppel by Election.
Ques: What is Judicial Proceeding ?
Answer:
It is a proceeding in which evidences can be taken on oath and can be verified. The proceeding under
Income Tax Act, is not judicial proceeding.

Nowadays in place of oath affidavit is given in the court to verify correctness of statement. In affidavit a
declaration is sworn or affirmed before a Competent Person [judge of the court or any other officer of
court].
If the other party gives consent to the affidavit then the affidavit can be considered as evidence.
CHAPTER 12- SPECIAL COURTS TRIBUNAL UNDER COMPANIES ACT AND OTHER
LEGISLATIONS
LIST OUT THE OFFENCES WHICH CAN BE TRIED BY SPECIAL COURTS.
The offences tried by special courts are as follows:
offender is brought before the judicial magistrate, the judicial magistrate may order for detention of such
offender for 15 days and the executive magistrate may order for detention of the offender for 7 days.
c. If the judicial or executive magistrate believes that the detention of 15 days or 7 days of the offender is not
necessary, then such case shall be forwarded to special courts.
d. The special court shall be a criminal court and shall have all the power as vested in the criminal court by
the Code of Criminal Procedure.
summary procedure by the special courts.
g. If the special court believes that the case cannot be tried summarily, then the special court may record
reasons in writing and can try such case through normal procedure.
ENNUMEARTE THE POWERS OF NCLT.
The powers of NCLT are as follows:
1) To allow certain companies or body corporate to have a different financial year.

2) NCLT can approve issue of further redeemable preference shares when a company is unable to
redeem its existing unredeemed preference shares or to pay dividend thereon.
3) To dismiss appeal against refusal to register transfer and transmission of shares OR to direct
4) On an application by the company, NCLT may allow further time to the company to repay the
amount of deposit or part thereof and the interest payable.
5) The Tribunal may direct that inspection of minute book of general meeting be given to a member.
6) To sanction utilization of IEPF for reimbursement of legal expenses incurred on class action suits by
7) Where NCLT is satisfied that the Auditor has acted in a fraudulent manner, it may order that the
Auditor may be changed.
8) Regarding removal of director, NCLT may order that representation from the director need not be
sent to the members and nor read at the meeting.
9) To order investigation of ownership of Company.
10) To impose restrictions in connection with securities.
11) To entertain petition for winding up of a Company or Body Corporate in pursuance of Inspector‘s
report.
12) To dispense with calling of meeting of members/ creditors for approving compromiser arrangement.
13) The Tribunal can restrict on the transfer or allotment of the shares of the company.
14) In case of termination or modification of certain agreements by the Company with managing
directors or other directors, leave be granted by the NCLT.
15) To wind up a company the name of which has been struck off by registrar from Register of
Companies.
WHAT ARE THE PROCEDURES FOR FILING APPLICATIONS AND APPEAL BEFORE NCLT
AND NCLAT ?
registrar after obtaining confirmation from all the parties to application, will verify the translation and if he
is satisfied with the translation he will issue a certificate.
2. The application or appeal shall be fairly and legibly type written or printe or lithographed on a
standard paper.
3. It shall start with ― Before NCLT or NCLAT and BENCH………….‖
4. the parties to application or appeal should be clearly described with their names, address, occupation,
age, in case of company name, CIN, address of its registered office and the law under which it is
incorporated.
representative of such party will join the proceedings under the same number, if there are more than 1
legal representative then, sub-numbers will be given.
6. The content of petition must be divided in to separate paragraphs and each paragraph must be
numbered consecutively.
10. The petition or appeal may be represented by applicant, respondent or authorized representative(
the petition has to be submitted in triplicate).

WHAT IS CAVEAT?
Or
Que: Explain the procedure for lodging of caveat before National Company Law Tribunal and what is the
validity period of such caveat ?
If the other party fails any application or appeal before NCLT or NCLAT after receiving the caveat the NCLT
or NCLAT will inform the caveator.
If no application or appeal is filed within a period of 90 days from the date of caveat then caveat shall lapse.
DISCUSS BRIEFLY THE PROCEDURE OF APPEAL BEFORE THE NATIONAL COMPANY

LAW TRIBUNAL.
The procedure of appeal before the National Company Law Tribunal is as follows
(1) Any person aggrieved by an order of the Tribunal may prefer an appeal to the Ap pellate Tribunal.
(2) No appeal shall lie to the Appellate Tribunal from an order made by the Tribunal with the consent of
parties.
(3) Every appeal shall be filed within a period of forty-five days from the date on which
 a copy of the order of the Tribunal is made available to the person aggrieved and shall
 be in such form, and accompanied by such fees, as may the prescribed:
Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five
days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that
the appellant was prevented by suffi cient cause from filing the appeal within that period.
(4) On the receipt of an appeal, the Appellate Tribunal shall, after giving the parties to the appeal a
reasonable opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or
setting aside the order appealed against.
(5) The Appellate Tribunal shall send a copy of every order made by it to the Tribunal and the parties to
appeal.
DIFFERENCIATE BETWEEN SPECIAL COURTS AND TRIBUNALS.
Special Courts
Created under section 435 of Companies Act, 2013. They are created or designated by the Central
Government. Special Court consist of Single Judge who may be a Sessions or Additional Session Judge, its
basically a Criminal Court that tries criminal offences given under section 435 of Companies Act, 2013, it
has all the powers vested to a criminal court by the CRPC, 1973. The Special Courts are the normal criminal
courts which try criminal offences under Companies Act.
Tribunals
Basically tribunals are the quasi-judicial bodies that are created by a special law passed by the legislature.
Tribunals are specially formed by the Government under the powers given in special laws. Tribunals have

the powers of civil court and they cannot try criminal offences. Tribunals act as a link between the Courts
and the Government. There are various tribunals in India under various laws.
Que: Explain any four rights of a party to appear before the National Company Law Tribunal, under the
Companies Act, 2013.
Ans: Rule 45 of the NCLT Rules deals with rights of a party to appear before the Tribunal.
According to Rule:
(1) Every party may appear before a Tribunal in person or through an authorised representative, duly
authorised in writing in this behalf.
(2) The authorised representative shall make an appearance through the filing of Vakalatnama or
Memorandum of Appearance in Form No. NCLT - 12 representing the respective parties to the proceedings.
(3) The Central Government, the Regional Director or the Registrar of Companies or Official Liquidator
may authorise an officer or an Advocate to represent in the proceedings before the Tribunal.
(4) The officer authorised by the Central Government or the Regional Director or the Registrar of
Companies or the Official Liquidator shall be an officer not below the rank of Junior Time Scale or company
prosecutor.
(5) During any proceedings before the Tribunal, it may for the purpose of its knowledge, call upon the
Registrar of Companies to submit information on the affairs of the company on the basis of information
available in the MCA21 portal. Reasons for such directions shall be recorded in writing.
(6) There shall be no audio or video recording of the Bench proceedings by the parties or their authorised
representatives.
Que: Describe the constitution of Special Court established under Section 435 of the Companies Act, 2013.
Ans: The Central Government may, for the purpose of providing speedy trial of offences under Section 435
of the Companies Act, 2013 by notification, establish or designate as many Special Courts as may be
necessary. A Special Court shall consist of— (a) a single judge holding office as Session Judge or Additional
Session Judge, in case of offences punishable under this Act with imprisonment of two years or more; and
(b) a Metropolitan Magistrate or a Judicial Magistrate of the First Class, in the case of other offences, who
shal be appointed by the Central Government with the concurrence of the Chief Justice of the High Court
within whose jurisdiction the judge to be appointed is working.
Ques: What is Tribunal ?
Answer:
Tribunal is a quasi judicial body. It stands between the court and the government.
Tribunal are created by the government as per the power granted to the government under various laws.
Tribunal have the power of the court with flexibility of the government.
In the case of Virendra Kumar Satyawadi Vs. The State of Punjab, the Supreme Court explained the
difference between the Court and Tribunal. The Supreme Court said that the courts have a general power to
deal with cases of different nature but tribunal deals with cases which are covered under special laws and it
deals with such cases in a manner as stated in the special laws.
Ques: Write a note on Establishment of NCLT and NCLAT ?
Answer:
Eradi Commission recommended formation of special courts for the laws relating to Insolvency and
bankruptcy.

In the case of L.Chandra Kumar V Union of India a question was raised, whether forming of special courts
and tribunal and taking away the powers of the courts, is constituted ?
The supreme Court decided that by creating tribunals attempt is made to compliment the court and the
decisions passed by tribunals may always be challenged before Supreme Court and hence the tribunals do
not take away the powers of the court and they are not unconstitutional.
The Supreme Court stated that tribunals cannot decide the cases which are criminal in nature. The court
also stated that the case that involves substantial question of law, such cases cannot be decided by tribunals.
In the case of Union of India V R Gandhi, the Constitutional validity of NCLT and NCLAT was upheld by
Supreme Court by a decision on 14th May, 2015.
The decision came after a long wait of 14 years and on June 1st, 2016 NCLT and NCLAT were notified.
The NCLT exercises the powers which were exercised by:-
- Company Law Board
- High Court
- Board of Industrial and financial reconstruction.
Ques: Write a note on Orders of NCLT ?
Answer:
NCLT passes its decision after providing an opportunity of being heard to both the parties.
On request made by any party within a period of 2 years from the date of passing of decision, if any mistake
in the decision is brought to the notice of NCLT, NCLT shall rectify such mistake in the decision.
Any party who is not satisfied with the decision passed by NCLT may within a period of 45 days from the
date of receipt of copy of decision may make an appeal to NCLAT, however no appeal can be made against
consent orders.
NCLAT after hearing both the parties:-
Confirm, Set aside or ModifyThe decision of NCLT and the copy of decision passed by NCLAT shall
be sent to each party.
If any party is not satisfied by the decision passed by NCLAT, then within a period of 60 days from the date
of receipt of decision passed by NCLAT may prefer an appeal to Supreme Court.
Ques: What procedure are to be followed by tribunal and appellate tribunal ?
Answer:
The NCLT and NCLAT shall have all the powers that are vested to Civil Court by the Code of civil procedure
1908.
However the NCLT and NCLAT are not bound by the procedures given in CPC, 1908 that are followed by
the courts, while decoding any matter and NCLT and NCLAT may decide their own procedure however they
must follow the principle of natural justice.
The order passed by NCLT and NCLAT may be enforced in the same manner as the order of the court is
enforced and if any party makes contempt of the order of the NCLT or NCLAT, it shall be deemed that such
party has contempt the order of court.
for execution.

In case of company The order will be sent to the court in whose jurisdiction the registered office of the
company is situated.
In case of individual
The order will be sent to the court under whose jurisdiction the individual resides or carries on a business
or works for gain
The tribunal or Appellate tribunal may by general or special order delegate its power to enquiries in relation
to any case pending before it to its officers or any other person as specified in the order and to report NCLT
or NCLAT within the time prescribed in the order.
Any party in any proceedings may appear in person or through PCA, PCS, PCWA or Advocate or through
any other person.
If any company is represented by a person or any other representative before NCLT then the company must
pass a Board Resolution and authorise such person to represent such company before NCLT +vakalatnama
in form no NCLT-2 is also required in favour of authorised representative.
The provisions of limitation Act with respect to filing of appeals and application before NCLT and NCLAT
shall apply.
Ques: What are the Procedures for filing applications and appeal before NCLT and NCLAT ?
Answer:
registrar after obtaining confirmation from all the parties to application, will verify the translation and if he
is satisfied with the translation he will issue a certificate.
2. The application or appeal shall be fairly and legibly type written or printe or lithographed on a standard
paper.
3. It shall start with ― Before NCLT or NCLAT and BENCH………….‖
4. the parties to application or appeal should be clearly described with their names, address, occupation,
age, in case of company name, CIN, address of its registered office and the law under which it is
incorporated.
representative of such party will join the proceedings under the same number, if there are more than 1 legal
representative then, sub-numbers will be given.
6. The content of petition must be divided in to separate paragraphs and each paragraph must be numbered
consecutively.
10. The petition or appeal may be represented by applicant, respondent or authorized representative( the
petition has to be submitted in triplicate).

Ques: What is CAVEAT ?
Answer:
If the other party fails any application or appeal before NCLT or NCLAT after receiving the caveat the NCLT
or NCLAT will inform the caveator.
If no application or appeal is filed within a period of 90 days from the date of caveat then caveat shall lapse.
Ques: What are Interlocutory Application ?
Answer:
If any party wants any kind of relief during the time when any proceeding is pending before NCLT or
NCLAT, such party may make an interlocutory application.
The interlocutory application may be made for:-
Stay of the case Condonation of delay Exemption from production of any document injunction
To pass interlocutory order is purely a matter of discretion for NCLT or NCLAT and it cannot be compelled
to pass interlocutory orders.
Ques: Write a note on Rights of party to appear before the tribunal ?
Answer:
1. The authorized representative shall file a vakalatnama in form no NCLT-2
2. The central government, ROC, regional director or the liquidator may on its behalf authorize any officer
who is not below the rank of Junior Time Scale or company prosecutor, to represent it before the NCLT or
NCLAT.
3. During the proceedings the NCLT or NCLAT may ask information about the company from the
concerned ROC.
Ques: What are Special Court ?
Answer:
courts and special courts a notification in the official gazette.
The special court shall consist of single judge only who will be a session judge or additional session judge.
The Central Government with the consent of Chief Justice of High Court of the concerned state may appoint
metropolitian magistrate or judicial magistrate of first class to be the judge of special courts.
Ques: Write a note on offence triable by special courts ?
Answer:

c. If the judicial or executive magistrate believes that the detention of 15 days or 7 days of the offender is not
d. The special court shall be a criminal court and shall have all the power as vested in the criminal court by
the Code of Criminal Procedure.
summary procedure by the special courts.
g. If the special court believes that the case can not be tried summarily, then the special court may record
reasons in writing and can try such case through normal procedure.
Ques: Write a short note Powers of NCLT ?
Answer:
1. To allow certain companies or body corporate to have a different financial year.
2. NCLT can approve issue of further redeemable preference shares when a company is unable to
redeem its existing unredeemed preference shares or to pay dividend thereon.
3. To dismiss appeal against refusal to register transfer and transmission of shares OR to direct
4. On an application by the company, NCLT may allow further time to the company to repay the
amount of deposit or part thereof and the interest payable.
5. The Tribunal may direct that inspection of minute book of general meeting be given toa member.
6. To sanction utilization of IEPF for reimbursement of legal expenses incurred on class action suits by
Que: Explain the powers of Special Courts for offences triable by it under Special Courts,
Tribunal under Companies and other legislations.
courts and special courts a notification in the official gazette, all the offences as specified in section 435(1) of
Companies Act, 2013
When the judicial magistrate comes to know that any offence has taken place under the Act and the
If the judicial or executive magistrate believes that the detention of 15 days or 7 days of the offender is not
Under Companies Act, 2013 the NCLT has been provided with the all the powers that are vested in the civil
courts under the Code of Civil Procedure, 1908.
Que: What is the procedure of filing appeal before NCLT and NCLAT? (June, 2019)
Que : NCLT And NCLAT are Constitutionally invlalid, comment.
Ans: This question has been raised many times that the NCLT and NCLAT takes away the power of the
Court and hence they are invalid, however the Supreme Court in the case of L. Chandra Kumar VS Union of
India, attempt is made to compliment the Court and the decisions made by the tribunals may always be
challenged before the Supreme Court and Supreme Court has all the powers to set aside the decision given
by tribunals and appellate tribunals and further the tribunals exercise the powers only under a special law
and they also can not pass criminal sentances.

A Supreme Court also stated that the tribunal and appellate tribunals can not decide the questions that
relate to substantial questions of law and hence we can rightly say that the NCLT and NCLAT are
constitutionally valid.
Que 2: The tribunals act as a link between Court and the Government, Comment.
Ans: Basically tribunals are the quasi judicial bodies that are created by a special law passed by the
legislature. It is very correct to say that the tribunals act as a link between Court and the Government on the
following grounds:
a. Tribunals have the powers of the Court, but are created by the Government as per the powers given to
Government under special law.
b. Tribunals have the powers of civil court under the Code of Civil Procedure, 1908, but the tribunal may
decide its own procedure to settle a dispute or a case before it.
c. Tribunals have the flexibility of Government inspite of being vested with the powers like Court.
So on all the above ground we can say that tribunals act as a link between the Court and the Government.
Que: Difference between Special Courts and tribunals?
Special Courts
Created under section 435 of Companies Act, 2013. They are created or designated by the Central
Government. Special Court consist of Single Judge who may be a Sessions or Additional Session Judge, its
basically a Criminal Court that tries criminal offences given under section 435 of Companies Act, 2013, it
has all the powers vested to a criminal court by the CRPC, 1973. The Special Courts are the normal criminal
courts which try criminal offences under Companies Act.
Tribunals
Basically tribunals are the quasi judicial bodies that are created by a special law passed by the legislature.
Tribuals are specially formed by the Government under the powers given in special laws. Tribunals have the
powers of civil court and they can not try criminal offences. Tribunals act as a link between the Courts and
the Government. There are various tribunals in India under various laws.
Que: Mr. Sunil has made a Contempt of the order passed by the Court, explain the
consequences of the same.
Ans: The order passed by NCLT and NCLAT may be enforced in the same manner as the order of the court
is enforced and if any party makes contempt of the order of the NCLT or NCLAT, it shall be deemed that
such party has contempt the order of court.
for execution.

So if a person makes the comtempt of the order of NCLT and NCLAT it will be considered that he has made
the contempt of the order of the Court.
Que: Explain provisions for contempt and caveat under Companies Act, 2013.
Contempt:
The order passed by NCLT and NCLAT may be enforced in the same manner as the order of the court is
enforced and if any party makes contempt of the order of the NCLT or NCLAT, it shall be deemed that such
party has contempt the order of court.

for execution.

Caveat
If the other party files any application or appeal before NCLT or NCLAT after receiving the caveat the
NCLT or NCLAT will inform the caveator.
If no application or appeal is filed within a period of 90 days from the date of caveat then caveat shall
lapse.
Any person may file a caveat in triplicate (three copies) if he believes any appeal or petition or application
may be started before NCLT, by paying the prescribed fee after forwarding a copy by registered post or
serving the copy on the expected petitioner or appellant.
The caveat shall be in the presecriebd form and contain such details and information or orders or
directions, details of authority against whose orders or directions the appeal or petition or application is
being started, by the expected appellant or petitioner or applicant.
It should contain full address of applicant (the person who files caveat), so that the appeal or petition or
application could be served (informed) before the appeal or petition or interim application is taken up by
NCLT or NCLAT.
Que: What is the difference between Domestic Tribunal and Administrative Tribunal?
There is difference between tribunal and domestic tribunals, the domestic tribunals basically regulate the
behavior, conduct and internal discipline of their members and they have powers inquiry and passing
decisions. Like Bar Council of India, ICSI, ICAI, Medical Council of India, these domestic tribunals
regulate the conduct of their members and also pass decisions the matter of behavior, conduct and
internal discipline of members, these are also created by laws.
However the Administrative Tribunals pass decisions on all the matters under special laws.
Like Competition Commission of India passes decisions on all the matters relating to Competition.
Que: Creation of Tribunal reduces the burden of courts and is also flexible and provide
justice in time bound manner, comment.
Ans: Basically tribunals are quasi judicial bodies which are created under special laws passed by
Parliament or by the state legislature. Tribunals are vested with the powers of civil courts in respect of
specific matters and they have a flexibility to decide their own procedure to resolve any case before them,
however they are required to follow the principle of natural justice. So tribunals have the power of Civil
Courts but are not bound by the procedures that are to be followed by the Civil Courts. This makes them
flexible and also saves time.
The law under which they are formed generally specifies the time limit within which they have to pass
decisions so it makes the proceedings faster in comparison with normal court.

The cases under many special laws are filed in Tribunals for example cases relating to company law are
filed in NCLT, cases related to competition are filed in competition Commission of India etc. So we can say
Tribunals are reducing the burdens of the court.
Que: Special courts have been formed under Companies Act for a special purpose comment.
Ans: Under section 435 of Companies Act 2013 the Central Government has the power to establish special
Court or designating the existing codes as special codes the special Court consists of single judge who is a
sessions judge for an additional session judge and the central government may also so a point Judicial
Magistrate or metropolitan magistrate as judge of special Court to try the offences under Companies Act
2013 which are punishable for less than 2 years the special courts try the case only when complaint in
writing is made by Central Government on the officers of the central government the special courts are
formed for a special purpose and the purpose is to try the offences that are covered in section 435 of
Companies Act which includes offences punishable with fine only, fine or imprisonment or both, fine and
imprisonment, special courts have the powers of criminal court under Criminal Procedure Code 1973
Extras!!!!
Q1. What is meant by tribunal? Explain the object of Tribunals.
Answer: Tribunal is a quasi-judicial body which is established by passing of a special law. It stands between
the court & the government.
Tribunals are created by Central or State governments under the powers granted to Central and State
Government under the special laws.
Tribunals exercise a specific jurisdiction under the special laws under which they are formed. They have the
powers like courts & flexibility like Government.
For example: SEBI can be referred as a tribunal, under SEBI Act, 1992, Competition Commission of India
can be referred as tribunal under Competition Act, NCLT & NCLAT are tribunals under Companies Act.
Tribunals are created with the following objects:
a. Tribunals have expertise under the special laws.
b. They make faster & speedy disposal of the cases.
c. Courts are already burdened with lots of cases.
d. It also saves time & expenses of the parties & protects the parties from unnecessary harassments
during the court procedures.
Tribunals are not made to take away the powers of the court but to complement courts.
Q2. Every Statutory Authority is a tribunal comment.
Answer: Statutory Authority refers to the authority which is created under the special law for discharging
the functions under the special law.
Every statutory Authority is not given the power under special law & pass decisions under the special laws.
For example, LIC is a statutory Authority but not a Tribunal, in the same manner, ICAI, ICSI, Medical
Council of India are not complete tribunal as they pass decisions only with respect to their members.
In the case of State of Gujarat VS. Gujarat Revenue Tribunal Bar Association, it was explained that, when a
Statutory Authority becomes a tribunal.
So as per the case, if following conditions are satisfied then only a statutory Authority will become Tribunal:
a. The Statutory Authority must have rights under the special law to pass decisions.
b. The decisions given by Statutory Authority must affect the rights of the parties.
c. The Statutory Authority may also be a party to dispute

d. The Statutory Authority has a right to act under the special law.
If above conditions are satisfied, then the statutory Authority will be considered as Quasi Judicial body.
Every Quasi Judicial body is a Statutory Authority, but Every Statutory Authority is not Quasi Judicial body.
Q4. Explain the differences between Courts & Tribunals:
Answer: Tribunals are formed to compliment the courts & tribunals do not have general powers to deal with
all the cases and tribunals have jurisdiction under a special law.Courts on the other hand are vested with
many powers under CPC, 1908 (civil courts) & under CrPC (Criminal Courts).
Lets see the difference:
Courts Tribunals
a. Courts have general powers to deal with all It deals with cases only special laws.
the cases, like civil courts can deal with all
kinds of civil cases & criminal courts deals
with all kinds of criminal cases.
b. Courts never become party to any case or Tribunals become party to any case or appeals.
appeals
c. Courts follow the procedure under CPC, Tribunals can make their own procedure as per the
1908 & CrPC, 1973. powers given to them under the special laws
d. The proceedings in the courts do not take The Tribunals are mandated by special law to pass
place in Time bound manner. a decision in Time bound manner.
e. The decisions of lower courts can be The decisions of tribunals can be challenged upto
challenged in Superior court. Supreme Court.
f. Courts can decide the cases that involves Tribunals cannot decide the cases which involve
substantial question of law. substantial question of law.
Q3. Explain any four rights of a party to appear before the National Company Law Tribunal,
under the Companies Act, 2013.
Answer: The rules of representing a case or application before NCLT or filing of appeals before NCLAT or
being present before NCLT or NCLAT are as follows (as per NCLT Rules, 2016):
a. The parties can either represent themselves or can be represented through their authorised
representatives.
b. Any party in any proceedings may appear in person or through PCA, PCS, PCMA or Advocate or any
other person as may be prescribed.
c. If a company is represented by its officers OR by other representatives, the company must pass a
Board Resolution for authorising such person for appearing before NCLT or NCLAT & in favor of
such person a Vakalatnama must be issued & filed before NCLT.
d. The ROC, RD, & Central Government appear before NCLT or NCLAT through the officer of
Government who is not below the rank of Junior Time Scale or by a company prosecutor So in the
above mentioned manner the parties can represent themselves before NCLT or NCLAT.

Hence, by Creating Tribunals attempt is made to reduce the burden of the courts.
CHAPTER-13 ARBITRATION AND CONCIALIATION ACT, 1996
Que: What are the ways in which arbitral proceeding is terminated under the Arbitration
and Conciliation Act, 1996 ? Explain.
Ans: Section 32 – Termination of Arbitral Proceedings
The arbitral proceedings shall automatically terminate when the final award is passed.
tribunal:
WHO IS AN ARBITRATOR AND HOW IS HE APPOINTED?
An arbitrator is a person who is appointed to resolve the disputes between the parties.
The appointment of arbitrator is complete when he accepts the appointment. There are no qualifications
prescribed in the Act for appointment of an arbitrator. Both the parties, by an agreement, can appoint an
arbitrator.
Arbitrator should be an independent person.
He must not have any interest in the dispute.
He must be impartial.
He must disclose his interest, if any, on or before his appointment.
The parties may appoint whomsoever they please to arbitrate on their dispute. Usually the parties
themselves appoint the arbitrator or arbitrators.
In certain cases, the Court can appoint an arbitrator or umpire. The parties to an arbitration agreement may
agree that the dispute shall be referred to a particular arbitrator or to the arbitrator designated by any
person or by any person who holds any particular office.
WRITE A NOTE ON AD HOC ARBITRATION.
An arbitration in which the parties themselves make an agreement, appoint arbitrator & resolve the dispute
without administrative support or without the help of any arbitral institution. This kind of arbitration is
called as ad hoc arbitration.
It can only be successful if it is done in good faith, mutual respect & in the spirit of co-operation.
If properly structured ad hoc arbitration is less expensive & fast. A distinct disadvantage of this approach is
that its effectiveness depends on the willingness of the parties.

ENUMMERATE THE CHARACTERITICS OF AN ARBITRAL AWARD.
The features of an Arbitral Award under the Arbitration and Conciliation Act, 1996 are as follows:
8) Arbitral award should be in writing on the stamp paper. The award should be signed by all the
members of arbitral tribunal.
9) Signature of award by majority of members can be taken as sufficient, in case the reason for omission of
signatures of remaining members is provided.
10) The arbitral tribunal should also give reasons for passing an order / award.
11) However, in following 2 cases reasons are not required :
c) If parties had agreed for non-providing of reasons at the time of entering into agreement.
d) Where the award has been passed with mutual consent of the parties.
12) Date of passing the award
13) Place of passing the award.
14) The award may contain a provision of interest.
8) The award may also include decisions and directions of the arbitrator regarding the cost of the
arbitration.
9) After the award is made, a signed copy should be delivered to each party for appropriate action like
implementation or recourse against arbitral award.
10) The arbitral tribunal may also pass an interim award during the arbitral proceedings. The interim award
is also referred as ―partial award‖.
WHAT DO YOU UNDERSTAND BY AN ARBITRATION AGREEMENT? Or What is meant by

―Arbitration Agreement‖ ? State the constituents of an arbitration agreement under the
Arbitration and Conciliation Act, 1996.
Arbitration agreement means an agreement referred to in Section 7[Section 2(1)(b)].
It means an agreement between the parties to refer their dispute to an arbitrator or an agreement by which
parties agree to resolve their dispute through arbitration procedure.
6) It must be in written & signed form.

7) Arbitration agreement can be separately entered into by the parties or it can be included as a separate
8) Shall considered to be in writing if it is in the form of letter, a paper signed by the parties or in the form
of statement of claims &defense between the parties.
9) Certain disputes related to matrimonial issue, criminal matters, questions related to guardianship,
about validity of a will cannot be solved through arbitration.
10) It should contain date of agreement, place of agreement and the name of arbitrator if any.
As per Section 31(8) the cost of arbitration shall be fixed by the arbitral tribunal in accordance with section
31A.
In the case of Rukmanibai Gupta Vs Collector, it was decided that there is no particular format of the
arbitration agreement, it just needs to be in writing and signed by the parties or their authorised agents.
In the case of Oil Production Association Vs United World Trade Association, the parties in their
business agreement that, arbitration if any, will be done by the International Chamber of Commerce (ICC)
Rules, the Court decided that, it is a valid arbitration agreement.
An arbitration clause in the agreement does not attract separate stamp duty.
When would the Arbitral Tribunal shall issue an order for the termination of Arbitral
Proceedings under Arbitral and Concilliation Act, 1996
As per Section 32 of Arbitration and Conciliation Act, 1996, The arbitral proceedings shall automatically
terminate when the final award is passed.

tribunal:
In all the above cases the proceeding of arbitration comes to an end.
Que: State whether Arbitral Tribunal can have lien on the Arbitral Award for any unpaid costs of the
arbitration under the Arbitration and Conciliation Act, 1996 ?
Ans: As per section 39 of Arbitration and Conciliation Act, 1996 Unless the arbitration agreement contains
otherwise, the Arbitral Tribunal shall have a right of lien on its award if the parites does not pay it the cost of
arbitration.
arbitral tribunal, in this case any party may make an application to the Court and in this case the court may
ask the applicant to deposit an amount in the court and than, the court orders the tribunal to pass the arbitral
award.
In the case of, Norjal AS, Vs Hyundai Heave Industries Limited, it was decided that, if the fees
demanded by the arbitrator has been ficed by written agreement between the applicant and the tribunal, no
application can be made to the Court to compel the arbitrator to deliver the award.
Que: What is meant by ‗Fast Track Procedure‘ to resolve the dispute between the parties,
under the Arbitration and Conciliation Act, 1996. State the procedure to be followed by the
arbitral tribunal while conducting arbitration proceedings.
3. As per Section 29B, Before appointment of or at the time of appointment of arbitrator the parties to
arbitration may agree that their dispute shall be resolved through a fast track procedure .
4. In case parties have agreed for fast track procedure, the arbitral tribunal shall follow the following
procedure :
a. The arbitrator will only accept the written pleading from the parties and there shall be no oral
pleading .
b. The Arbitral tribunal shall have the power to call for any additional information or declarations
from the parties in addition to written pleadings filed by the parties.
c. The parties may make a request to the arbitrator for conducting oral pleadings or the arbitrator
tribunal may himself hold oral proceeding if he believes oral proceedings are necessary for
clarifying certain issues, in respect of such oral proceeding the arbitrator may make rules and
regulations.
d. Within a period of 6 months from the date of request in respect of fast track proceedings the
arbitrator shall pass an award.
Que: State the provisions of Section 25 in Arbitration and Conciliation Act, 1996 regarding
default of a party.
Ans: As per section 25 of Arbitration and Conciliation Act, 1996, If claimant fails to communicate his
statement on the day fixed for hearing, the arbitrator shall terminate the proceedings,. If respondent fails to
communicate his statement on the day fixed for hearing, the arbitrator can continue the proceedings in the
absence statement of the respondent.

If any party fails to appear in the oral hearing or produce documentary evidence the arbitral tribunal may
continue the proceedings and make the arbitral award on the basis of evidence before it.
QUE: Explain the provisions for obtaining interim relief from Court, when there exists
arbitration agreement among parties
As per section 9 of Arbitration and Conciliation Act 1996, Any party can before or during the arbitral
proceeding or after the making of arbitral award and before the enforcement of arbitral award, can
approach the court for interim measures by the court.
4) This provision is based on UNCITRAL model law on international commercial arbitration.
5) The parties can approach the court for getting any interim relief. E.g. :
c) Injunctions.
f) The detention, preservation or inspection of any property or thing which is the subject-matter ofthe
dispute in arbitration.
Further, where, before the commencement of the arbitral proceedings, a Court passes an order for any
interim measure of protection (as given above in points a to f) the arbitral proceedings shall be
commenced within a period of ninety days from the date of such order or within such further time as the
Court may determine.
measure, unless the Court finds that circumstances exists which may not render the remedy provided under
section 17 effective (section 17 deals with interim reliefs by the Arbitrator).
“Iska matlab yeh hua pahle aap arbitrator se mango interim relief agar won a de to fir Court jao”
In the case of NPEC India Ltd Vs Sundaram Finance Limited, it was decided that relief under section
9 of the Act can not be granted unless some proceeding is pending under Arbitration and Conciliation Act,
1996.
Ques: Write a short note on Arbitrator ?
Answer:
1) He is a person who is appointed to resolve the disputes between the parties.
2) The appointment of arbitrator is complete when he accepts the appointment. There are no
qualifications prescribed in the Act for appointment of an arbitrator. Both the parties, by an agreement, can
appoint an arbitrator.
3) Arbitrator should be an independent person.
4) He must not have any interest in the dispute.
5) He must be impartial.
6) He must disclose his interest, if any, on or before his appointment.
Ques: Write a short note on Arbitral Award ?
Book
Ques: What is Alternative Dispute Resolution ?
Answer:
Book
Ques: What do you mean by COURT under Arbitration and Conciliation Act?
Answer:
Court means a district or high court or any civil court that has jurisdiction over the matters relating to
arbitration, but does not include any Civil Court of a grade inferior to such principal Civil Court or any
Court of Small Causes.
Ques: Define Legal Representative ?
Answer:
This word has been defined in the same manner as it is defined under the provisions of Code of Civil
Procedure.
It means the person who represent the estate of deceased person, or who handles the assets of deceased
person or who represents the deceased person in the capacity of representative.
It also includes the executers or officers appointed by the Court or the person who has taken responsibilities
& duties of the executors. Hairs in law are also considered as Legal Representative.
Ques: Write a short note on AD HOC ARBITRATION ?
Answer:
An arbitration in which the parties themselves make an agreement, appoint arbitrator & resolve the dispute
without administrative support or without the help of any arbitral institution. This kind of arbitration is
called as ad hoc arbitration.
It can only be successful if it is done in good faith, mutual respect & in the spirit of co-operation.
If properly structured ad hoc arbitration is less expensive & fast. A distinct disadvantage of this approach is
that its effectiveness depends on the willingness of the parties.
Ques: Write a difference between ‗Arbitration‘ and ‗Conciliation‘
Answer:-
Arbitration Conciliation
It a formal process. Informal process.
Arbitrator passes arbitral award which is final Conciliator does not have the power to pass a
and binding. judgement / order; he brings the parties to
settlement or compromise agreement.
Arbitrator should always be in odd nos. They can also be in even nos.
Both the parties are required to terminate the One party can also terminate the proceeding at
proceeding. any time.
Arbitrator can be appointed even before Conciliator is appointed only after dispute has
dispute commences. arisen.
Ques: What kind of matters cannot be referred for arbitration?
Answer:-
As per general practice, matters involving moral questions or questions of public law cannot be resolved by
arbitration.
For instance, the following matters are not referred to arbitration:
Matrimonial matters, like divorce or maintenance;
Insolvency matters, like declaring a person as an insolvent;

Criminal offences;
Dissolution or winding up of a company.
Ques: ―The process of Alternate Dispute Resolution will reduce the burden of the Courts‖
Comment.
Answer:-
ADR reduces the burden of court by providing alternative modes of solving the disputes i.e. by
arbitration, mediation, conciliation, negotiation etc. It provides procedural facility to save the time &
money of the convention trial.
ADR services are not provided appropriately in India; hence there is an urgent need to establish &
promote ADR services. The ICADR is a society registered under the Societies Registration Act, 1860 and is
a non-profit making organization which promotes research and training in the field of ADR. They maintain
panels of independent experts in the implementation of ADR process.
Almost all disputes including civil, labour and family disputes can be settled by the ADR. They have
proved to be equally effective in the business environment. This point proves that ADR is a boon to the
modern economy.
Ques: Ramesh & Suresh made an agreement to resolve a dispute through arbitration. The
dispute was relating to payment of money & the Arbitral Tribunal ordered Ramesh to pay 5
lac Rs. to Suresh. Ramesh could not pay the amount & hence the Arbitral Tribunal ordered
Ramesh to give his property to Suresh. Examine the validity of Arbitral Tribunal & also
explain the provisions relating to jurisdiction of the Arbitral Tribunal.
Answer:
Jurisdiction of Arbitral Tribunal means the matter that can be decided by arbitral tribunal. The arbitral
tribunal has jurisdiction over the matters that are specified in the arbitration agreement. Section 16 states
that any party may request the arbitrator to exercise jurisdiction on the matters that are in excess of the
authority of the arbitrator. However, such request has to be made before or at the time of submission of
defense to the arbitral tribunal. However, the arbitral tribunal can accept delayed request on its discretion.
To pass an excess jurisdiction or not it is purely a matter of discretion on the part of arbitrator and he can
not be compelled for exercising such excess jurisdiction.
If the arbitral tribunal exercises the excess jurisdiction then the other party (aggrieved party) may approach
the Court for setting aside of arbitral award.
So in the given case if request has been made by Suresh to the Arbitral Tribunal to pass a jurisdiction
relating to transfer of the property to Suresh then the Arbitral Tribunal‘s award is valid, however it can be
challenged by Ramesh.
Ques: What is the role of Conciliator under Arbitration & Conciliation Act, 1996?
Answer:
Conciliator is the person who resolves the dispute between the parties by bringing them to settlement.
Conciliation is an informal process of resolving the disputes.
The conciliator has got the following roles:
a. The conciliator should promote communication between the parties.
b. He should be guided by the principal of objectivity, fairness & justice.
c. He should decide his own procedures as per the circumstances of the case.
d. He should make a settlement of the agreement whenever he believes there exist a ground for
settlement of the dispute.
e. The conciliator should maintain full confidentiality regarding the information that he receives
during the course of arbitration proceedings.
Ques: To start the proceedings of arbitration the parties have to enter in to an agreement. In
the light of the statement, state the feature of Arbitration Agreement?
Answer:
It means an agreement between the parties to refer their dispute to an arbitrator or an agreement by which
parties agree to resolve their dispute through arbitration procedure.
ered into by the parties or it can be included as a separate

statement of claims & defence between the parties.
validity of a will cannot be solved through arbitration.
It should contain date of agreement, place of agreement and the name of arbitrator if any.
Ques: Define International Commercial Arbitration?
Answer:
transaction arising out of a legal relationship between two / more parties and at least one of the parties is
foreign individual, foreign Government, Foreign Companies, Foreign Institution.
process.
the arbitrator must be from the third country.
Ques: What are the grounds for challenge of the award of Arbitrator?
Answer:
On the following grounds the award of the Arbitrator can be challenged as per the provisions of Arbitration
& Conciliation Act:
arbitrator or the exact timings and places of arbitral proceeding, such party may approach the court.
to the dispute.
– e.g. Criminal and Marriage related.
public policy.
arbitral award within 30 days of rejection of request by AT.
Ques: On what grounds the appointment of the arbitrator can be challenged & what is the
procedure for challenge of the appointment of the Arbitrator?
Answer:
The Parties are free to challenge the appointment of the arbitrator on the grounds mentioned in the act.
The appointment of arbitrator can be challenged on the following grounds as provided under the Act:
Independence & impartiality of the arbitrator.
Qualification.
Interest of the arbitrator in the dispute.
CHALLENGE PROCEDURE:
The parties are free to decide a procedure to challenge the arbitrator.
The party who wants to challenge the appointment of arbitrator shall, within 15 days of becoming
aware of the grounds for challenge, write to the arbitrator with reasons for his removal.
If challenge is successful then arbitrator resigns.
All the previous decisions given by him will become invalid. If challenge is not successful
Then arbitrator continues & all the previous decision by the arbitrator will remain valid.
The dissatisfied parties can Approach the court
Ques: Madhav moves an application for setting aside an arbitral award on the ground that
he was not given a proper notice of the arbitral proceedings and therefore he could not
present his case. He furnishes sufficient proof and pleads before the Court that he received
the arbitral award just 15 days back, Decide with reasons, Will Madhav succeed in his
prayer?
Answer:
As per the arbitration act, 1996 if a party was not given proper notice of the proceedings of arbitration & as
a result of which that party could not attend the proceedings. In this case if any ex parte award has been
passed by the Arbitral Tribunal then such order may be challenged by the aggrieved party if he proves that
he did not receive the notice.
In the given case as Madhav furnishes sufficient proof and pleads before the Court that he received the
arbitral award just 15 days back, the court may cancel the award passed by the tribunal.
Ques: Vijay and Ram entered in to an agreement to refer a dispute relating to genuineness of
a will to arbitral tribunal. Inspite of this Ram started proceedings in the District court of
competent jurisdiction. Vijay submits an application for stay of legal proceedings under the
Arbitration and Conciliation Act, 1996. Will Vijay succeed?
Answer:
There are some disputes that cannot be resolved through arbitration & will is included in such disputes. It
means disputes relating to will cannot be decided through arbitration. So even if the parties have entered in
to an agreement regarding the resolution of dispute relating to will through arbitration such agreement has
no legal effect.
In the given case Vijay and Ram entered in to an agreement to refer a dispute relating to genuineness of a
will to arbitral tribunal, Inspite of this Ram started proceedings in the District court of competent
jurisdiction. So when Ram has started case in the court relating to the will the court will not grant any stay
& the case will continue as disputes relating to will cannot be solved through arbitration.
Ques: Write a note relating to cost of arbitration?
Answer:

Section 31A (1) provides that in relation to any arbitration proceeding or a proceeding under any of the
provisions of this Act pertaining to the arbitration, the Court or arbitral tribunal, irrespective of anything
contained in the Code of Civil Procedure, 1908, shall have the discretion to determine:
(a) whether costs are payable by one party to another.
(b) the amount of such costs.
(c) when such costs are to be paid.
Explanation - For the purpose of this sub-section, "costs" means reasonable costs relating to-
(i) the fees and expenses of the arbitrators, Courts and witnesses;
(ii) legal fees and expenses;
(iii) any administration fees of the institution supervising the arbitration; and
(iv) any other expenses incurred in connection with the arbitral or Court proceedings and the arbitral
award.
Under Section 31A (2) if the Court or arbitral tribunal decides to make an order as to payment of costs,-
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; or
(b) the Court or arbitral tribunal may make a different order for reasons to be recorded in writing.
Ques: What is the procedure relating to appointment of the Arbitrator?
Answer:
APPOINTMENT OF ARBITRATOR:-
Section 11 of Arbitration and Conciliation Act, 1996 contains the procedure regarding appointment of
Arbitrator.
that the arbitrator shall not belong to any specific country.
dure regarding appointment of arbitrator.
person does not act as arbitrator as per the procedure mentioned in the agreement or if 2 arbitrators fails to
appoint the third arbitrator, in this case a party may request the Supreme Court or the High Court or any
other person or institution designated by High Court or Supreme Court to take steps to appoint the
arbitrator, however this process will not apply when arbitration agreement provides any other matter.
arbitrators appointed by the parties shall appoint the third arbitrator.
ppoint arbitrator within 30 days of the request from the other party or if
arbitrator fails to appoint the third arbitrator within 30 days of their appointment, in both of these cases,
the arbitrator shall be appointed on the request of the party by the Supreme Court or High Court or arbitral
institution designated by Supreme Court or High Court.
check whether there is an arbitration agreement or not.
power to appoint arbitrator is designated by Supreme Court or High Court to any arbitral
institution, it shall not be treated as designation of judicial power by High Court or Supreme Court.
Court or by arbitral institution

designated by Supreme Court or High Court, shall be final and cannot be challenged.

the Supreme Court, High Court or the arbitral institution, may
obtain disclosures from such arbitrator regarding his qualification or any other relevant information.
nal Commercial
Arbitration and in this case the arbitrator will be from third country.
first request has been made shall have the jurisdiction.
e request has been made to Supreme Court or High Court to appoint arbitrator, the Supreme
Court or High Court shall try to dispose of the application within a period of 60 days from the date of
service of notice on the opposite party.
make rules for payment of fees to arbitrator.
Ques: Write a note on time limit for passing of the arbitral award?
Answer:
It is the duty of the arbitrator to pass arbitral award within a period of 12 months from the date of reference
( it means the date on which the arbitrators received the notice of their appointment ).
2.If the award is made within a period of 6 months from the date of reference, the arbitral tribunal shall be
entitled for such amount of additional fees as the parties may agree.
3.If the arbitrator is not able to pass an award within a period of 12 months from the date of reference, the
parties may extend the time limit by not exceeding the period of 6 months .
4.If the arbitrator could not pass the award within the prescribed time as well as the additional time, the
office of the arbitrator shall come to an end unless the time has been extended by the court and the court
will grant extension only when the court is satisfied that delay is due to sufficient reason and the court may
also order for reduction of fees by 5 % for each month of the delay, the court may also substitute one or all
the arbitrators while extending the period of arbitration.
Ques: What is fast track arbitration procedure?
Answer:
It is the duty of the arbitrator to pass arbitral award within a period of 12 months from the date of reference
( it means the date on which the arbitrators received the notice of their appointment ).
If the award is made within a period of 6 months from the date of reference, the arbitral tribunal shall be
entitled for such amount of additional fees as the parties may agree.
If the arbitrator is not able to pass an award within a period of 12 months from the date of reference, the
parties may extend the time limit by not exceeding the period of 6 months.
If the arbitrator could not pass the award within the prescribed time as well as the additional time, the
office of the arbitrator shall come to an end unless the time has been extended by the court and the court
will grant extension only when the court is satisfied that delay is due to sufficient reason and the court may
also order for reduction of fees by 5 % for each month of the delay, the court may also substitute one or all
the arbitrators while extending the period of arbitration.
Ques: What are the conditions for enforcement of foreign awards in India?
Answer:
CONDITIONS FOR ENFORCEMENT OF FOREIGN AWARDS
The foreign award can be enforced by Indian Courts if the following conditions are satisfied:
a. the award has been made in pursuance of a submission to arbitration which is valid under the law
applicable thereto;

b. the subject-matter of the award is capable of settlement by arbitration under the law of India;
c. the award has been made by the arbitral tribunal provided for in the submission to arbitration or
constituted in the manner agreed upon by the parties and in conformity with the law governing the
arbitration procedure;
d. the award has become final in the country in which it has been made, in the sense that it will not be
considered as such if it is open to opposition or appeal or if it is proved that any proceedings for the purpose
of contesting the validity of the award are pending;
e. the enforcement of the award is not contrary to the public policy or the law of India.
Ques: What are the provisions relating to deposits?
Answer:
Towards the cost of arbitration in settling the claims of the parties the Arbitral Tribunal may ask both of the
parties to deposit an equal amount.
If one party does not pay the amount of its share towards the deposit the other party has to pay and if both
the parties do not pay their share the Arbitral tribunal may suspend or terminate the arbitral proceedings.
Lien on arbitral award and deposits as to costs
The Arbitral Tribunal shall have a right of lien on its award if the parites does not pay it the cost of
arbitration.
arbitral tribunal in this case any party may make an application to the Court and in this case the court may
ask the applicant to deposit an amount in the court and thereafter the court orders the tribunal to pass the
arbitral award.
Ques: Is the Arbitration agreement discharged due to the death of any party to the
arbitration?
Answer:
Section 40 (1) provides that an arbitration agreement shall not be discharged by the death of any party
thereto either as respects the deceased or, as respects any other party, but shall in such event be enforceable
by or against the legal representative of the deceased.
Section 40 (2) states that the mandate of an arbitrator shall not be terminated by the death of' any party by
whom he was appointed.
As per Section 40 (3) nothing in this section shall affect the operation or any law by virtue of which any
right of action is extinguished by the death of a person.
Ques: Write a note on applicability of limitation act on arbitral proceedings?
Answer:
Section 43 (1) provides that the Limitation Act, 1963, shall apply to arbitrations as it applies to proceedings
in court.
For the purpose of limitation act, arbitration shall be deemed to have commenced on the date when the
request for arbitration is received by the opposite party.

If the Arbitration agreement specifies that some action shall be taken to commence arbitration within a
specific time to claim relief under arbitration agreement, and if no such action is taken within the specific
time, in this case the court on an application may extend the time if the court believes that if such extension
is not given then a party may suffer a hardship.
Que: Explain the provisions relating to interim measures by the Court when there exists
arbitration agreement between the parties.
Ans: Any party can before or during the arbitral proceeding or before the enforcement of arbitral award, can
approach the court for interim measures by the court.
This provision is based on UNCITRAL model law on international commercial arbitration.
The parties can approach the court for getting any interim relief. E.g. :

c) Injunctions.
f) The detention, preservation or inspection of any property or thing which is the subject-matter ofthe
dispute in arbitration.
Further, where, before the commencement of the arbitral proceedings, a Courtpasses an order for any
interim measure of protection the arbitral proceedings shall becommenced within a period of ninety days
from the date of such order or within such further time as the Court may determine.
measure, unless the Court finds that circumstances exist which may not render the remedy provided under
section 17 effective.
Que: What do you mean by the term ‗foreign award‘ ? State the grounds upon which the
enforcement of the foreign award may be opposed in India.
As per section 44 of Arbitration and Conciliation Act, 1996, Foreign Awards means the arbitral award on
differences between persons arising out of legal relationship, whether contractual or not. It is necessary that
the the relationsip should fall within the meaning of word ―commercial‖ as per the law in force in India.
The foreign awards will be enfoced in India only when the it is made in such territories, as the Central
Government may declare by notification in the official gazette to be the territories to which the convention
applies.
As per section 48 of Arbitration and Conciliation Act, 1996, On the following grounds, the award granted by
New York / Geneva Conventions or any other foreign award can be set aside:
i) Incapacity of the party – e.g. party becoming unsound minded during the proceedings.
j) Invalidity of an agreement. E.g. Agreement entered into by use of coercion.
k) If a party was not given notice of the appointment of arbitrator or the exact timings and places of
l) Award passed by an arbitrator does not relate to the dispute.
m) Unqualified person was appointed.
n) Subject matter of a dispute not covered under Arbitration Act –
o) Award being in conflict with public policy of India.
Que: What are th general norms applicable to arbitrator?
Ans: General norms applicable to Arbitrator are as follows:

of fairness, integrity and capable to apply objectivity
in arriving at settlement of disputes;
relationship that is likely to affect impartiality or might reasonably create an appearance of partiality or bias
amongst the parties;
any dispute to be arbitrated by him;
been convicted of an offence involving moral turpitude or economic offence;
common and customary laws, commercial laws, labour laws, law of torts, making and enforcing the arbitral
awards;
arbitration and international best practices in regard thereto;
ey elements of contractual obligations in civil and

commercial disputes and be able to apply legal principles to a situation under dispute and also to apply
judicial decisions on a given matter relating to arbitration; and
e of suggesting, recommending or writing a reasoned and enforceable

arbitral award in any dispute which comes before him for adjudication.
Que: What is meant by 'arbitration agreement' under the Arbitration and Conciliation Act,
1996 ? Should the arbitration agreement be in writing and whether jurisdiction of civil court
is barred ?
Arbitration Agreement plz see above
As per section 8 of Arbitration and Conciliation Act, 1996, if any party approaches the Court for resolving
the dispute which is a subject matter of arbitration agreement, on or before the date of submission of
statements to the Arbitrator then, in spite of any judgment, decree or order of the Supreme Court or any
Court, refer the parties to arbitration unless the Court is satisfied that there is no valid arbitration
agreement.
In the case of Aman Finance Corporation Vs, Nitesh Kumar Sinha, the buyer of a truck on hire
purchase basis, defaulted in payment of instalments and the hire purchase agreement contained the clause
of arbitration and in spite of this the buyer approached the Court, when his vehicle was seized by the
financer, the Court decided that the Suit is not maintainable as there is a valid arbitration agreement.
Que: Explain briefly the terms 'conciliation' and 'mediation'
Conciliation is an informal process in which the conciliator (the third party) tries to bring the disputants to
agreement. He does this by lowering tensions, improving communications, interpreting issues, providing
technical assistance, exploring potential solutions and bringing about a negotiated settlement.
Mediation is a structured process in which the mediator assists the disputants to reach a negotiated
settlement of their differences. Mediation is usually a voluntary process that results in a signed agreement
which defines the future behaviour of the parties. The mediator uses a variety of skills and techniques to
help the parties reach the settlement, but is not empowered to render a decision.

Indian Stamp Act
Que: Where an instrument is chargeable with advalorem duty in respect of any money stated
in any currency other than that of India, how the duty on the value of such money shall be
calculated under the Indian Stamp Act, 1899. Discuss.
Ans: According to Section 20 of the Indian Stamp Act, 1899, where an instrument is chargeable with ad
valorem duty in respect of any money expressed in any currency other than that of India, such duty shall be
calculated on the value of such money in the currency of India, according to the current rate of exchange on
the date of the instrument.
The Central Government notifies from time to time, in the Official Gazette the rate of exchange for
conversion of certain foreign currencies into Indian currency for this purpose and such rate shall be deemed
to be the current rate.
Que: Discuss the evidentiary value of an instrument not duly stamped under the Indian
Stamp Act, 1899.
Ans: As a general rule if an instrument is not duly stamped it is not considered as an evidence, however in
the following cases even an instrument which is not properly or duly stamped, can be considered as an
evidence:
1) Improperly stamped document can be considered as evidence in the criminal court.

2) A receipt can be taken or considered as an evidence of payment. The party will have to produce a
certificate given by the Collector regarding payment of the penalty.
3) If the instrument is executed by or on behalf of the Government.
4) Where a contract or agreement of any kind is affected by the correspondence consisting of two or
more letters and any one of the letters bears the proper stamp, the contract or agreement shall be
deemed to be duly stamped.
Que: Difference between executed and Execution.
Ans: Executed means signed & execution means signature. Signature includes mark by an illiterate
person.Once an instrument is signed then only it becomes chargeable for payment of the duty.
The Collector can receive the stamp duty without penalty and certify an instrument as duly stamped, as
from the date of execution.
We can also say that executed means signed and execution means under the process of signing.
In the case of Mewa Kunwari Vs. Bourey, it was decided that, the instrument is duly stamped if it has
been duly stamped at the time of execution and is admissible in evidence, though the stamp is subsequently
removed or lost
Que: Whether an insufficiently stamped instrument is a valid document ? Can it be admitted in evidence on
payment of penalty ?
Ans: Section 35 of the Indian Stamp Act, 1988 stipulates that no instrument chargeable with duty shall be–
(i) admitted in evidence for any purpose whatsoever by any person authorised by law (such as judges or
commissioners) or by the consent of the parties (such as arbitrators) to record evidence; or (ii) shall be
acted upon; or (iii) registered; or (iv) authenticated by any such person as aforesaid or by any public officer,
unless such instrument is duly stamped. Provided that any such instrument shall be admitted in evidence
on payment of the duty with which the same is chargeable, or, in the case of any instrument insufficiently
stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten
times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten
times such duty or portion.Further, an insufficiently stamped instrument is not an invalid document and it
can be admitted in evidence on payment of penalty. [See K. Narasimha Rao v. Sai Vishnu]

Que: An instrument bears a stamp of sufficient amount, but of improper description. Can it
be certified as duly stamped ? How the instrument can be rectified and what would be the
date of its execution ?
Ans: Under Section 37, opportunity is given to a party, of getting a mistake rectified when a stamp of proper
amount, but of improper description has been used. Under this section, the State Government may make
rules providing that, where an instrument bears a stamp of sufficient amount but of improper description,
the instrument may, on payment of the duty with which the stamp is chargeable, be certified to be duly
stamped, and any instrument so certified shall then be deemed to have been duly stamped as from the date
of its execution.
Que: Achal gives an instrument to Basu which is unstamped. This instrument is also not
Registered:
(i) Will the instrument be admitted in evidence ?
(ii) Will the situation change if the instrument is stamped but not registered before passing
to Basu and Basu gets it registered subsequently ?
Ans: (i) As per section 35 of Indian Stamp Act, an unstamped or insufficiently stamped instrument is not
admissible as an evidence and also can not be registered.
(ii) If the instrument is stamped later on and if the party receiving the instrument i.e. Basu gets it registered
well within time of registration and pays the penalty for delay, then the instrument can be admissible as an
evidence. In the case of K. Narasimha R Vs Sai K Vashu, it was decided that, an insufficiently stamped
instrument is not an invalid document and it can be admitted in evidence on payment of penalty.
Que: Amit mortgages a house of the value of ` 25,000 to Bimal for ` 10,000. Bimal
afterwards buys the house from Amit. Whether the stamp duty already paid is deductible
from the stamp duty payable on ` 25,000 ?
Ans: Section 20 – 28 of Indian stamp Act deals with valuation of the stamp duty and in accordance with the
provisions, When the mortgagor sells mortgaged property to the mortgagee, the stamp duty paid on
mortgage shall be adjusted from the stamp duty payable on sale.
So in the given case study, the stamp duty paid on the mortgage will be deductible from the stamp duty
payable on sale.
Ques: Define: BILL OF LADING
Answer:
―Bill of Lading‖ includes a ‗through bill lading‘ but does not include a mate‘s receipt. When the goods are
sent through ship the shipping authorities issue a bill of lading, it is a document of title of the goods loaded
in the ship. When the receiver of the goods will produce the bill of lading then only the shipping authorities
will release the goods at the receiving end. Mates receipt is just an acknowledgement of the receipt of the
goods in the ship.
Ques: Define Denoting duty
Answer:-
When the duty is paid on principal instrument & the remaining instruments charged with the duty of Rs. 1
because all the instruments were executed for effecting a single transaction.
In this case, the parties always have a burden to carry the principal instrument along with the other
instruments in order to prove the payment of stamp duty.
So as per section 16 of Indian Stamp Act, to get a relief from carrying the principal instrument every time,
an application can be made to the collector to issue a certificate evidencing the payment of stamp duty on

the other instruments & for this purpose, a duty is required to be paid to the collector, which is known as
Denoting duty.
Ques: What is E-stamping ?
E-Stamping is a computer based application and a secured way of paying Non Judicial stamp duty to the
Government. The government introduced the e-stamping to make the stamp duty payment convenient. E-
stamp is generated by the system on payment of Stamp Duty. The benefits of e-Stamp are: e-Stamp
Certificate can be generated within minutes; e-Stamp Certificate generated is tamper proof; e-Stamp
Certificate generated has a Unique Identification Number; Easy accessibility and faster processing;
Security; Cost savings and User friendly
Ques: What are the benefits of E-stamping ?
Answer:-
E-Stamp Certificate can be generated within minutes
E-Stamp Certificate generated is tamper proof
Authenticity of the e-Stamp certificate can be checked through the inquiry module
E-Stamp Certificate generated has a Unique Identification Number
Specific denomination is not required.
Ques: State the modes of cancellation of the stamps?
Answer:-
As per the stamp act, the stamps will be invalid if they are not cancelled. Whenever stamps are used they
must be cancelled so that they may not be reused.
Stamps may be cancelled in the below mentioned mode:
Section 12 states that the adhesive stamp may be cancelled by writing across stamp, signing on the
Section 13 states that the impressed stamp may be cancelled by writing or by signing on the face of
the stamp, normally the name of the purchaser and identity of stamp vendor is written on the face of the
stamp so that its reuse can be avoided.
Ques: State the consequences of the instruments which are not duly stamped under Indian
Stamp Act, 1899?
Answer:-
Duly paid means proper payment of stamp duty according to the law.
If the instrument does not have or bear the stamps of correct value as required by law,
it is treated that instrument is not duty stamped & such instrument is inadmissible as
evidence and becomes a void instrument.
Ques: List any ten instruments that are chargeable with stamp duty.
Answer:-

Any instrument which is executed in India & is mentioned in Schedule I of Indian Stamp Act including:
Share certificate,
debentures,
Power of Attorney
Bill of exchange and
promissory notes,
Mortgage deed,
share warrant,
Lease Agreement,
Sale Deed,
Affi-Davit
Ques: What do you mean by Promissory Note? State the requirements of valid promissory
Note with illustrations?
Answer:-
An unconditional written promise to pay a certain sum of money to other person is called as a promissory
note.
There are 2 parties to promissory Note:
Maker: The person who promises to pay money.
Payee: The person who receives the payment.
The promissory note can be paid to payee or his order.
e.g. I promise to pay you Rs.10,000 on death of Mr. Sham Sunder – This is a valid promissory Note.
Promissory Note is subject to stamp duty.
Example: The following negotiable instruments signed by ‗A‘ are valid promissory notes. As they fulfill the
requirements of legal definition discussed above;
I Promise to pay ‗B‘ or order Rs 500.
Acknowledge myself to be indebted to ‗B‘ in Rs 1000, to be trade on demand, for value received.
Ques: Discuss the evidentiary value of an instrument not duly stamped?
Answer:-
Section 35 to 48 of Indian Stamp Act contains the consequences relating to improper payment of stamp
duty.
The sections provide for following consequences:
If the instrument does not have or bear the stamps of correct value as required by law, it is treated that
instrument is not duty stamped & such instrument is inadmissible as evidence and becomes a void
instrument.
Exception to this Rule:

In these cases, an instrument will not bear proper stamp duty but will be still considered as evidence.
Improperly stamped document can be considered as an evidence in the criminal court.
A receipt can be taken or considered as an evidence of payment. If the certificate from the collector
has been obtained.
The Improper duty paid instruments can be presented to the collector & if proper duty is paid on it
such instrument can become a valid instrument & can be considered as evidence.
Ques: Explain the methods of stamping under the Indian Stamp Act, 1899?
Answer:-
Section 10 to 15 of Indian Stamps Act, cover the method of stamping. According the act there are 2 methods
of payment of stamp duty:
Adhesive Stamp:
When adhesive stamps have been used, they should be cancelled in an effective manner so that they cannot
be reused.
Impressed Stamps:
These stamps are impressed on a sheet of paper where other conditions of agreement are mentioned.
Impressed stamps are used for effecting following transactions:
Agreements related to immovable property like :
Sale, Lease, Mortgage, Special Power of Attorney for registration of immovable property.
Will
Joint venture agreement,
Partnership agreement,
Affidavit, etc.
Ques: If single transaction has been done through use of many instruments in this case, is
the party required to pay stamp duty on each instrument?
Answer:-
For effecting a single transaction, many agreements may be required to be executed. This creates a hardship
on the parties to pay stamp duty on every single instrument. But the Indian stamp Act provides a relief from
the above mentioned hardship. Section 4 of the Indian Stamp Act, states that, if for effecting a single
transaction many instruments are executed, the stamp duty will be paid only on the principal instrument &
the remaining instruments will be chargeable with duty of Rs.1. The principal instrument will be the
instrument on which highest stamp duty is payable.
Ques: Within how much time the instruments must be stamped?
Answer:-
If the instrument is executed in India, stamp duty shall be paid within three months from the date of
execution of the instrument.
If the instrument is created in a foreign country but deals with some property or the right situated in India,
the instrument shall be stamped within 3 months from the date of its first arrival in India.

e.g: Agreement was made in America on 1st April 2009 related to transfer of Immovable property situated
in Chandigarh. The instrument was received in India on 1st July 2009 the period of 3 months shall be
counted from 1st of July 2009.
Ques: Brother A executed in favour of brother B a gift of all his property. By another deed,
brother B made provision for the living expenses of brother A and hypothecating in favour of
brother A a part of the property included in the above mentioned gift deed, in order to
secure the payment of the living expenses. Whether the transaction are of same nature?
Answer:-
As per section 5 of Indian Stamp Act, 1899, when many instruments are executed to execute a single
transaction then in this case stamp duty is to be paid only on the instrument that bears the highest value
rest other instruments are to be charged with the duty of Rs. 1.
In the given case brother A transferred a gift of all his property to his brother B, by another deed brother B
promised to pay living expenses to brother A & secured the promise through a hypothecation of the
property that was gifted to him by brother A.
It appears in this case that transfer that was done by brother B was in consideration of the transfer done by
Brother A.
Hence both the transaction are the part of one transaction only & duty will be paid on the instrument of gift
only.
Ques: Ram purchased a flat & then let out that flat to sunil & sunil sub let the flat to akhilesh,
all the transactions were done on a single stamp paper of the value comprising of highest
value of all the transaction i.e duty calculated on the value of highest consideration. Is the
action of all the parties relating to payment of stamp justified?
Answer:
As per section 6 of Indian stamp act if on a single instrument many transactions are entered that are of
distinct nature then the parties are required to pay the aggregate of stamp duty in respect of each
transaction and the relief given in section 5 can not be availed as nature of each transaction is different from
the other transaction.
In the given case transaction relating to sale, lease, & sub lease were done on a single instrument only &
duty was paid on the transaction of highest value, this is a violation of section 6 as transactions are distinct
& separate.
In this case aggregate duty should have been paid by the parties & hence action of the parties is not
justified.
Que: What is Bill of Lading?
Ans: Bill of lading means a document of title that is issued by the ship authorities when goods are shipped
through Ship or Vessel. When the goods reach at their destination the other party may produce the bill of
lading and take delivery of the goods by producing such bill of lading. Bill of lading is an instrument and
subject to stamp duty.
Ques : Define the term bond?
Answer:
Bond is an instrument through which a person promises to pay money to some other person on happening
of a specific event or a specific condition and if that event does not happen the instrument will become void.
It also includes an instrument through which a person promises to make payment of money to some other
person, whether such instrument is attested by a witness or not. It also includes any instrument so attested,
whereby a person obliges himself to deliver grain or other agricultural produce to another.

Ques: Define the term Receipt?
Answer:
―Receipt‖ includes any note, memorandum or writing, through which any money or any bill of exchange,
cheque or promissory note is acknowledged to have been received; or through which any other movable
property is acknowledged to have been received in satisfaction of a debt; or through which any debt or
demand, or any part of a debt or demand is acknowledged to have been satisfied or discharged; or which
signifies or imports any such acknowledgement, and whether the same is or is not signed with the name of
any person.
An ordinary cash memo issued by a shopkeeper or another person selling the goods or other merchandise is
not a receipt, unless it contains an acknowledgement of receipt of the money.
A letter acknowledging the receipt of money or cheque is a receipt. A document merely saying that the
signatory has received a sum of Rs. 500 is a receipt.
Ques: What kind of precautions must be taken while writing on impressed stamp?
Answer:
Impressed stamp is a stamp in which stamp is impressed on a sheet of paper. A party must take following
precautions while writing on an impressed stamp:
Writing on stamp paper must be done in such a manner that the stamp appears on the face of the
instrument.
On one stamp paper only one instrument shall be executed. Because the second instrument created
on the same stamp will result in avoiding of payment of stamp duty.
The stamp paper must bear the date of selling the stamp and signature of stamp vendor and the
name of the person to whom stamp is sold.
Ques: Write a Short Note on SUBSTANCE OVER FORM ?
Answer:
The court considers substance of the agreement before considering the title, or the form of the
agreement. It means if the title of the agreement is in contradict with the substance, in this case the court
will consider the substance or the content of the agreement before imposing a duty on the instrument.
Ques: What are the provisions relating to impounding of the instruments?
Answer:
If any instrument bears improper stamps, then the officers have the power to impound the same and when
such impounding is made the officers have to send the instrument to the collector along with the certificates
and the details of penalty charged. The affected parties may make an application to the collector and if
collector is satisfied that, the parties are given a hardship then collector may refund the penalty, whole or in
part.
If the collector believes, the above instrument is not subject to any stamp duty then he may endorse this fact
on such instrument along with his signature or if he believes, such instrument is subject to a stamp duty in
this case he may require the proper payment of stamp duty along with penalty of Rs 5 or up to 10 times of
the deficit stamp duty.
The collector can also refund the amount of penalty if the penalty was charged due to improper use of the
stamp papers bearing the impressed stamps.
The certificate given by the collector shall be a proof against the impounding of the instrument.
Ques: What parties to the instrument must do when they have confusion relating to payment
of stamp duty?
Answer:
If any party has a confusion relating to payment of stamp duty on any instrument, then such party may
produce such instrument before the collector and may request the collector to determine the correct
amount of stamp duty on such instrument, the request has to be made with a fees of (50 paisa to Rs 5) as
decided by the collector.
When any instrument is brought to the collector, the collector is required to give his option about the
correct stamp duty, he cannot punish the parties for payment of improper stamp duty. However the
instrument has to be brought to the collector within a period of 1 month from the date of its execution and
within a period of 3 months from the date of its first receipt in India, if the instrument was executed outside
India.
Ques: Short Note on: Intimation to collector regarding insufficient duty.
Answer:
A person may himself bring to the notice of the collector that nay instrument is not properly stamped by
making an application and if on such application the collector is satisfied, that the instrument is not duly
stamped due to a mistake or accident, in this case the collector may collect the deficit amount and issue a
certificate stating that the instrument is stamped properly.
However such application to the collector must be made within a period of 1 year from the date of execution
of such instrument. If the instrument is produced after 1 year the collector may impound such instrument.
If the instrument has been brought within 1 year and the collector has any doubt relating to chargeability of
stamp duty then the collector may refer the matter to the Chief Revenue controlling authority. If the matter
is not refereed to Chief Controlling revenue authority then decision of the collector shall be final.
NOTES
1. If any instrument was charged to duty and penalty but such penalty has been relieved
by the court or any other body or by the collector, in this case, such body shall also issue a
certificate regarding release of such penalty and on such release the instrument will be
admissible as evidence.
2. If the collector is satisfied that any party intentionally paid insufficient stamp duty to
evade the payment of stamp duty in this case the collector can start a criminal prosecution.
3. If the person who was not liable to pay stamp duty pays the stamp duty or the penalty
in such case the person may recover the amount of stamp duty or penalty from the person
who is liable to pay it and the collector may also issue a certificate in this regard.
Ques: Four adhesive stamps were used on an instrument. First adhesive stamp had a single
line drawn across the face of the stamp. On the second stamp, there were two parallel lines.
The third stamp had three parallel lines, and the fourth stamp had two lines crossing each
other. What are the provisions for cancellation of adhesive stamps and which adhesive
stamps referred to above will be considered to have been properly cancelled ?
Answer:
Stamp duty can be paid through use of Adhesive stamps or impressed stamps or through e-stamping.
Whenever adhesive stamps are used they must be cancelled. As per Section 12 of Indian stamp Act,
adhesive stamp may be cancelled by writing across stamp, signing on the stamp, putting initials or any title
on the stamp or by drawing a line across it or in any other effective manner which has the effect of
restricting its reuse.
In the given question the adhesive stamps are cancelled by single line, two parallel lines, three parallel lines
and two lines crossing each other, all these modes ensure a restriction on reuse of stamp and so we can say
that stamps are properly cancelled.
Que: Examine with reasons, whether the following transactions are exempted under the Indian Stamp Act,
1899
(a) A lease is executed and got registered. A second document is executed altering the terms of the first
document. (1 mark) (b) A purchaser of land executes a mortgage of the land in favour of the vendor for a
portion of the purchase money. (1 mark) (c) Any instrument executed by the developer or unitor in
connection with carrying out of purposes of the Special Economic Zone (SEZ). (1 mark) (d) A scheme for
corporatisation or demutualisation or both of a recognised stock exchange. (1 mark) (e) The transfer of
beneficial ownership of securities, dealt with by a depository. (1 mark)
Ans:
a. Section 4 of the Indian Stamp Act, 1899 provides that, where in the case of any sale, mortgage or
settlement, several instruments are employed for completing the transaction, only the principal instrument
shall be chargeable with the duty prescribed for the conveyance, mortgage or settlement. A lease is executed
and got registered. A second document is executed altering the terms of the first document. The second
document has to be stamped as a lease. Section 4 does not apply.
b. Section 4 of the Indian Stamp Act, 1899 provides that, where in the case of any sale, mortgage or
settlement, several instruments are employed for completing the transaction, only the principal instrument
shall be chargeable with the duty prescribed for the conveyance, mortgage or settlement. A purchaser of
land executes a mortgage of the land in favour of the vendor for a portion of the purchase money. The
mortgage is liable to full duty as a separate instrument. Section 4 does not apply.
c. According to Section 3 of the Indian Stamp Act, 1899 no duty shall be chargeable in respect of any
instrument executed by, or, on behalf of, or in favour of, the Developer or Unit or in connection with the
carrying out of purposes of the Special Economic Zone. Accordingly, this instrument is not chargeable with
stamp duty.
d. According to Section 8B of the Indian Stamp Act, 1899 a scheme for corporatisation or demutualisation,
or both of a recognized stock exchange shall not be liable to duty under the Act or any other law for the time
being in force. . Accordingly, this instrument is not liable to stamp duty.
e. As per Section 8A of the of the Indian Stamp Act, 1899, the transfer of registered ownership of securities
from a person to a depository or from a depository to a beneficial owner shall not be liable to duty under the
Act or any other law for the time being in force. Accordingly, this instrument is not liable to stamp duty.
Que: Explain the terms ‗Patta‘ and ‗Kabuliyat‘, under the Indian Stamp Act, 1899
Lease‖ means a lease of immovable property and includes also a patta; a kabuliyat or other undertaking in
writing, not being a counterpart of a lease to cultivate, occupy or pay or deliver rent for, immovable
property,
Patta - A patta is an instrument given by the Collector of District or any other receiver of the revenue, to the
cultivator, specifying the condition or conditions upon which the lands are to be held and the value or
proportion of the produce to be paid therefor.
Kabuliyat - A Kabuliyat is executed by the lessee, accepting the terms of the lease and undertaking to abide
by them. Although, it is not a lease under Section 105 of the Transfer of Property Act, it is expressly
included in the definition for the purposes of the Stamp Act
Que: What is the extent of liability of instruments to stamp duty where several instruments
are executed in a single transaction ? Explain with any one illustration.
Ans: For effecting a single transaction, many agreements may be required to be executed.
6) This creates a hardship on the parties to pay stamp duty on every single instrument.
7) But the Indian stamp Act provides a relief from the above mentioned hardship.
8) Section 4 of the Indian Stamp Act, states that, if for effecting a single transaction many instruments
are executed, the stamp duty will be paid only on the principal instrument & the remaining
instruments will be chargeable with duty of Rs. 1.
9) The principal instrument will be the instrument on which highest stamp duty is payable.
Example
Brother A executed in favour of brother B a gift of all his property. By another deed, brother B made
provision for the living expenses of brother A and hypothecating in favour of brother A a part of the
property included in the above mentioned gift deed, in order to secure the payment of the living expenses. It
was held that the two documents were part of the same transaction.
SECTION 4 NOT APPLICABLE

(i) A lease deed is made and after some time another lease deed is made to modify the previos lease deed,
both the leases are several matters and not covered under section 4.
(ii) A person purchases the land makes the half payment and for the remaining half payment, mortgages
the same land to the seller. (separate matters not covered in section 4)
Que: Name of the officers of the Company who can be held liable in case the Company has
issued share warrant without proper stamp duty. What shall be the penalty as prescribed
under Sec. 62(2) of the Stamp Act.
Ans: As per Section 62(2) of the Indian Stamp Act, 1899, if a share-warrant is issued without being duly
stamped, the company issuing the same, and also every person who, at the time when it is issued, is the
managing director or secretary or other principal officer of the company, shall be punishable with fine
which may extend to five hundred rupees
Que: A promissory note is executed by Suresh and Udit and stamp is afterwards affixed and
cancelled by Suresh by again signing it. Explain whether the provisions of section 17 relating
to time of stamping instruments have been complied with
Ans: Section 17 of the Indian Stamp Act, 1889 provides that all instruments chargeable with duty and
executed by any person in India shall be stamped before or at the time of execution. The scope of Section 17
is restricted to only instruments executed in India.
If the executant of a document has already completed the execution of the document and in the eye of law
the document, could be said to have been executed, a subsequent stamping, (however close in time) could
not render the document as one stamped at the time of execution.
Thus, where a promissory note is executed by ‗A‘ and ‗B‘ and a stamp is afterwards affixed and cancelled by
‗A‘ by again signing it, the stamping has taken place subsequent to the execution and hence, the provisions
of Section 17 are not complied with (Rohini v. Fernandes,).
A receipt stamped subsequent to its execution, but before being produced in the Court is not stamped in
time and accordingly, not admissible in evidence.
In view of the above, the provisions of Section 17 relating to stamping instruments are not complied with
Que: Write a note on ‗mode of cancellation of adhesive stamps‘ under the Indian Stamp Act,
1899.
Ans: Section 12 states that the adhesive stamp may be cancelled by writing across stamp, signing on the
Section 13 states that the Impressed stamp may be cancelled by writing or by signing on the face of the
stamp, normally the name of the purchaser and identity of stamp vendor is written on the face of the stamp
so that its reuse can be avoided.
upon which an instrument chargeable with duty has already been written.
However, on a single stamp paper, the other instrument may be written if:
a) Such instrument is not chargeable to separate stamp duty.
b) Such instrument is chargeable to separate stamp duty and such stamp duty has been duly paid.
c) The second instrument, just acknowledges, the receipt of goods or money, in respect of the transaction
relating to first instrument.
In Mahadeo Koeri v. Sheoraj Ram Teli, it was held that a stampmay be treated as having been
effectively cancelled by merely drawing a line across it.

But, in Hafiz Allah Baksh v. Dost Mohammed, it was held that if it is possible to use astamp a second
time, inspite of a line being drawn across it, there is no effectual cancellation. Again, thequestion whether
an adhesive stamp has been cancelled in an effectual manner has to be determined withreference to the
facts and circumstances of each case.
Que: Comment on the Provisions relating to collection of stamp duty on, securities?
Ans: The Amendments in the Indian Stamp Act, 1899 brought through the Finance Act 2019
and Rules made under the Finance Act, 2019 have come into effect from 1st July, 2020 vide
notifications dated 30th March, 2020, so the provsions relating to stamps on share transfer
including the electroic shares will be chargeable to duty as per the below mentioned points:
 The stamp-duty on sale, transfer and issue of securities shall be collected on behalf of the State
Government by the collecting agents who then shall transfer the collected stamp-duty in the account
of the concerned State Government.
 In order to prevent multiple payment of duties, no stamp duty shall be collected by the States on any
transaction associated with a transaction on which the depository / stock exchange has been
authorised to collect the stamp duty.
 The collecting agents shall be the Stock Exchanges or authorized Clearing Corporations and the
Depositories.
 For all exchange based secondary market transactions in securities (through brokers), Stock
Exchanges shall collect the stamp duty, and for off-market transactions and initial issue of securities
happening in demat form, Depositories shall collect the stamp duty.
 The Central Government has also notified the Clearing Corporation of India Limited (CCIL) and the
Registrars to an Issue and/or Share Transfer Agents (RTI/STAs) to act as a collecting agent.
 The objective is to bring Over the Counter derivative transactions reported to CCIL and physical
space (non-demat) transactions in mutual funds handled through RTI/STAs under the scope of
stamp duty so as to avoid any tax arbitrage.
 The collecting agents shall within three weeks of the end of each month transfer the stampduty
collected to the respective State Government, under whose jurisdiction the residence of the buyer is
located and in case the buyer is located outside India, to the State Government having the registered
office of the trading member or broker of such buyer and in case where there is no such trading
member of the buyer, to the State Government having the registered office of the participant.
 The collecting agent shall transfer the collected stamp-duty in the account of concerned State
Government with the Reserve Bank of India or any scheduled commercial bank.
 The collecting agent may deduct 0.2 per cent of the stamp-duty collected on behalf of the State
Government towards facilitation charges before transferring the same to such State Government.
 Mutual funds, being delivery-based transactions in securities, were supposed to pay the duty as per
various State Acts.
 All mutual fund transactions are now liable for stamp duty and the new system has only
standardized the charges across states and the manner of collection of stamp duty.

Que: A sub-registrar refuses to register a document on the ground of undervaluation for
stamp duty. The person aggrieved with the order of sub-registrar approaches to seek your
advice. What advice/remedy would you suggest to him ? Discuss.
Ans: According to Section 72(1) of the Registration Act,1908, an appeal shall lie against an order of a Sub-
Registrar refusing to admit a document to registration (whether the registration of such document is
compulsory or optional) to the Registrar to whom such
Sub-Registrar is subordinate if presented to such Registrar within thirty days from the date of the order;
and the Registrar may reverse or alter such order.
If the order of the Registrar directs the document to be registered and the document is duly presented for
registration within thirty days after the making of such order, the Sub-Registrar shall obey the same, and
thereupon shall, so far as may be practicable, follow the procedure prescribed in Sections 58, 59 and 60;
and such registration shall take effect as if the document had been registered when it was first duly
presented for registration.
Registration of Documents Act

Ques: Write a note on the documents of which registration is compulsory?
Answer:
1. Instruments relating to gift of immovable property of more than Rs. 100 :
Any agreement (instrument) which has the effect of transferring an immoveable property of Rs. 100 or
more by way of a gift requires a compulsory registration.
In case of KalyanaSundaram V/s. Karuappa it was decided that the instruments of gift become effective
from the date on which the instrument was executed (signed). Even if the registration is done after the
death of the donor, the gift is valid.
A transfer of property as a gift is valid even if it is given to the person with whom the donor has illicit
relation if the person (donee) accepts such gift.
2. Non-testamentary instrument :
It means the instruments which are created with consideration. The Instruments which are not gift are
Non-testamentary instrument. Any other instrument which is made with consideration & creates, assigns,
transfers any right, immovable property of more than Rs. 100 requires compulsory registration. e.g. :
Mortgage deed, Rental agreement of more than 12 months, sales deed etc.
3. A Non testamentary instrument which acknowledge (accept) receipt of monetary consideration in

respect of an immovable property of more than Rs. 100.
4. Non testamentary instrument transferring the immovable property in favour of any person by the
order of the court where the value of Immovable property exceeds Rs. 100.
5. If the document was not registered at the time of sale u/s. 53(a) of Transfer of Property Act, 1882
then later on registration of such a document will be compulsory.

Que: Explain the reasons for refusal to register a document by sub-registrar under the
Registration Act, 1908.
Ans: Every Sub-Registrar refusing to register a document. except on the ground that the property to which
it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such
order in his Book No. 2 and endorse the words "Registration refused', on the document; and, on application
made by any person executing or claiming under the document, shall without payment and unnecessary
delay, give him a copy of the reasons so recorded. II. No registering officer shall accept for registration a
document so endorsed unless and until, under the provisions hereinafter contained, the document is
directed to be registered. (Section 71 of the Registration Act)
Ques: Write down the exception of sec. 17(i) documents of which no registration is
required?
Answer:-
1. Compromise agreement in relation to a dispute.
2. Shares of a company.
3. Debentures of a company at the time of issue.
4. Transfer of Debenture does not require registration.
5. Order of the Court related to immovable property (testamentary transfer)
6. Any grant of immovable property from the government.
7. Any partition of the property made by the Revenue (Collector) officer.
8. A loan granted under land improvement act does not require registration.
9. Any loan under Agriculturist Act.
Ques: What enquiry is made before registration by the registrar officer ?
Answer:-
The Registrar may make following enquiries at the time of Registration :
1. The Registrar may ask for Stamp Duty Certificate.
2. If the documents are presented by agent, the Registrar may ask for Special Power of Attorney.
3. The registrar may raise question on witness.
4. The Registrar may ask for the actual consideration.
Ques: What is the effect of non- registration of documents of which registration is

compulsory?
Ans: There are following consequences which the parties will have to suffer if the Registration is not done:
Que: What is the object of registration of documents under Registration Act, 1908 ?
Ans. Registration is the process of recording a document with an assigned officer and to keep it as public
record. Following are the objectives of registration of documents under the Registration Act, 1908: 1.
Registration of a document ensures proper preservation and record of such document. It is particularly
important in the case of immovable properties because the history of rights need to be established. 2.
Documents which are required to be registered act as valid evidence in a court of law. Documents which
need to be compulsorily registered are not admissible in court if they are not registered. 3. Registered

documents assist in the prevention of fraud. 4. Registration gives people information regarding legal rights
and obligations arising or affecting a particular property.
It will not give No ownership

any power to will be
the transferee transferred by
to acquire the an unregistered
property. document.
It will not be
It won't affect
taken as
the immovable
evidence in any
property which
suit related to
is mentioned in
immovable
the document.
property.
However an unregistered instrument under section 53A of Transfer of Property Act, 1882 will be considered
as evidence.
In the case of K. Narasimha Rao v. Sai Vishnu, it was decided that, though unstamped instrument is
inadmissible as an evidence even for collateral purposes, but if an unregistered instrument is also
unstamped and if it is subsequently stamped as per the provisions of Indian Stamp Act, in this case such an
instrument can be considered as evidence for collatral purposes even though it continues to be
unregistered, but in this case the actual terms of the transaction will not be considered.
So if a dipute relates to settlement deed which was insufficienty stamed and also unregistered in this case
the Court directed for impounding of the instrument which was not complied by the defendant so in this
case the Court did not accept the instrument as an evidence even for the collateral purpose, and application
if any filed for admission of such document for collateral purpose will be dismissed.
Ques: What is the Time limit for presentation ?
Answer:
The registration has to be done within 4 months from the date of execution of doecument, additional period
of 4 months is granted in case of necessity on payment of higher fees.
If the documents are executed outside India then it must be registered within 4 months from the date of its
first arrival in India. (no extension of 4 months is given)
If delay is due to the act of Court than such delay shall not be considered.
A document executed outside India is not valid unless it is registered in India (Nainsukhdasv.
Gowardhandas)
Ques: A document was executed by several persons at different times, the person in whose
favour the registration was done presented the document for re-registration within a period
of 3 months, will the document be re-registered, if yes then within what period?
Answer:

As per section 23A of Registration of Documents Act, 1908, If a person finds that a document has been filed
for registration by a person who is not empowered to do so, he can present the document for re-registration
within four months from the date he became aware of the fact that registration of document is invalid.
Hence in the given question, the document will be accepted for re-registration as it has been presented
within a period of 3 months from the date of becoming aware of the fact that registration is invalid.
Que: Shyam executes a sale deed of a house in favour of Krishna. The house is situated in
Faridabad, but the transferor and the transferee want the sale deed to be registered at
Gurgaon, which has also a District Court of Haryana State. Can they do so ? Give reasons.
Ans: As per Section 28 of Registration Act, 1908, the registration of immoveable property is done at the
office of sub registrar under whose jurisdiction the whole or some part of the property is situated.
In the given case the house is situated at Faridabad but the perties want to get the sale deed registered at
Gurgaon where the Destrict Court is situated. This is violation of section 28 of Registration Act and the
parties are advised to register the property at the office of sub registrar of Faridabad only.
Que: Who can present documents for registration at the proper registration office under the
Registration Act, 1908 ? Explain.
Ans: Section 32 of the Registration Act, 1908 specifies the persons who can present documents for
registration at the proper registration office. Such persons are as follows:
(a) some person executing or claiming under the same, or in the case of a copy of a decree or order, claiming
under the decree or order, or
(b) the representative or assign of such person, or
(c) the agent of such person, representative or assign, duly authorised by power-of attorney executed and
authenticated in the manner hereinafter mentioned.
It is immaterial whether the registration is compulsory or optional; but, if it is presented for registration by
a person other than a party not mentioned in Section 32 of the Registration Act, 1908, such presentation is
wholly inoperative and the registration of such a document is void (Kishore Chandra Singh v. Ganesh
Prashad Bhagat.
For the purpose of Section 32 of the Registration Act, 1908, a special power of attorney is required as
provided under Section 33 of the Act. A general power of attorney will not do. Section 33 of the Act requires
that a power of attorney, in order to be recognized as giving authority to the agent to get the document
registered, should be executed before and then authenticated by the Registrar within whose district or sub-
district the principle resides.
Que: Arun representing that the tenants on his land were all at will, sells it to Barun, and
conveys it to him by an instrument dated 1st January, 1977. Soon after that day, Arun
fraudulently grants to Chandan, a lease of part of the land, and procures the lease dated 1st
October, 1976 to be registered under the Registration Act, 1908. Explain whether Barun can
obtain cancellation of the lease, and if so, on what terms.
Ans: As Per the provisions of registration act the documents that are executed first gets the priority.
In the given case study, Arun Sold the property to Barun on Jan 1, 1977, by an instrument so Barun became
the owner of the property on Jan 1, 1977. After that Arun fraudulently leased a part of the property to
Chandan and produces a lease deed dated 1st October 1976.
In this case study Barun can obtain the cancellation of the lease deed on the gound that, when Arun leased
the property he was not the owner of the property as the property has already been transferred to Barun.
Que: Yash Signed a deed of gift in favour of Raja. If Yash does not agree to its registration,
will the gift deed be registered? Explain wheter delay in registration of gift deed will delay its
operation?

Ans: As per the provision of Registration Act, 1908, The Registered document gets a legal effect from the
date of execution / signing & not from the date of registration.
In case of KalyanaSundaram V/s. Karuappa it was decided that the instruments of gift become
effective from the date on which the instrument was executed (signed). Even if the registration is done after
the death of the donor, the gift is valid. Neither death nor the express revocation by the donor, is a ground
for refusing registration, provided other conditions are complied with (donor has signed the gift deed and
the donee has accepted the gift)
So in the given case study if the gift deed is signed by Yash and the gift is accepted by Raja the gift will have
the effect from the date of its signing, i.e the date of execution and the registration is mere a formality and
will not affect the validity of the gift.
Que: When a sub-registrar may refuse to register a document? Whether registration of a

document may be refused, on the ground of undervaluation of stamp duty, under the
Registration Act, 1908
Ans:
6. If the registrar refuses the registration he will make an entry in Book No. 2 along with the reasons
for refusal to register.
7. If the registrar refuses registration on the ground that property is not located in his jurisdiction than
no entry is required to be made in the register.
8. If a document does not require registration under this act, such documents shall not be registered by
the registering officer.
9. On application made by any person executing or claiming under the document, shall without
payment and unnecessary delay, the Sub registrar shall give him a copy of the reasons of refusal
which are recorded in the register
10. Registration cannot be refused on the ground of undervaluation for stamp or any other unnecessary
reason. (Mulla (1998), page 308)
Que: A executes a will of his all moveable and immovable property in favour of B, his
grandson. He wants to register the will. Advise A regarding the presentment for its
registration and deposit of will with reference to the provisions of the Registration Act,
1908.
Ans: The Donor or after his death his executor or any person who claims to be his executor in any other
manner, (the person appointed by deceased donor through his will as executor) or the agent of donor or
after the death of the donor, the donee (the person to whom properties are given by will, or the person who
will adopt the will (the person for whom will is made) or the adoptive son (son for whom will is made), may
present the will for registration.
A Will, will be registered by the Registrar on being satisfied with the signature of donor and other particular
as mentioned in the will, if the will is presented by donee or any other person (not by the donor).
The person who makes the will is referred as donor or testator.
Any testator may, either personally or by duly authorised agent, deposit with any Registrar his will in a
sealed cover along with the name of the testator and of his agent, if any.
On receiving such documents, if the registrar is satisfied he shall record the deposit of will in his Registrar
Book No. 5, and shall note the date, time, month, etc. of such receipt of will and shall then put and keep the
sealed cover (will) in his fire-proof box.
The testator may also withdraw the will which is deposited, by applying for the withdraw of the will and the
Registrar shall deliver it accordingly.

Que) A has executed a document outside India. Whether this document is valid in India ?
Discuss with reference to the Registration Act, 1908.
Ans: As per Section 26 of the Registration Act, 1908, where the registering officer is satisfied that the
document was executed outside India and it has been presented for registration within four months after its
arrival in India, he may accept such document for registration on payment of proper registration fee. A
document executed outside India is not valid unless it is registered in India (Nainsukhdas v.
Gowardhandas, AIR 1948 Nag. 110). In view of the above it is clear that the document executed by Mr. A
outside India, is not valid in India unless it is registered in India within four months from the date of its
arrival in India.
Que: X presents a sale deed for registration of a plot before the Sub-Registrar and the
registration is refused on the ground of undervaluation of stamp. What remedy is available
to X in such situation under the Registration Act, 1908 ?
Ans: According to Section 72(1) of the Registration Act, 1908 an appeal shall lie against an order of a Sub-
Registrar refusing to admit a document to registration (whether the registration of such document is
compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate within thirty days from
the date of the order; and the Registrar may reverse or alter such order. In the given case X may appeal to
the Registrar against the order of Sub-Registar for registration of plot.
Que: What is the time limit for presentation of a document for its registration under the
Registration Act, 1908 ?
Ans: A document other than a will must be presented within four months of its registration. In cases of
urgent necessity, etc. the period is eight months, but in that case higher fee has to be paid. (Sections 23-26
of the Registration Act, 1908)
A copy of a decree or order must be presented within four months from the day on which the decree or
order was made, or, where it is appealable, within four months from the day on which it becomes final.
Que: Advise in the matter of the following, the provisions of registration of documents
under the Registration Act, 1908 with reference to section applicable :
(i) Lease agreement for eleven months with rent payable monthly, having an option to the
tenant to renew for further for the same period and so on
(ii) Lease agreement is only for a year with a reserved rent for the period granted vis. one
year. (1 mark)
(iii) Lease agreement for one with reserving yearly rent. (1 mark)
(iv) Lease agreement for a fixed term of five years with yearly rent payable.
(2 marks)
Answer
i) Lease agreement for eleven months with rent payable monthly, having an option to the tenant to renew
for further for same period and so on does not require registration of documents in the light of Section 107
of Transfer of Property Act, 1882 and Section
17(1)(d) of Registration Act, 1908.
Answer (ii)
If a lease is of a very high value but is neither from year to year, nor for any term exceeding one year, nor
reserving a yearly rent, does not require registration of documents under Section 17(1)(d) of Registration
Act, 1908.
Answer (iii)

Lease agreement for one year with reserving yearly rent, require registration of documents in the light of
Section 107 of Transfer of Property Act, 1882 and Section 17(1)(d) of Registration Act, 1908.
Answer (iv)
Lease agreement for a fixed term of five years with yearly rent payable, require registration of documents in
the light of Section 107 of Transfer of Property Act, 1882 and Section 17(1) (d) of Registration Act, 1908.
Que: Arun representing that the tenants on his land were all at will, sells it to Barun, and
conveys it to him by an instrument dated 1st January, 1977. Soon after that day, Arun
fraudulently grants to Chandan, a lease of part of the land, and procures the lease dated 1st
October, 1976 to be registered under the Registration Act, 1908. Explain whether Barun can
obtain cancellation of the lease, and if so, on what terms.
Ans: As per section 47 of Registration of Document Act, 1908, The Registered document gets a legal effect
from the date of execution / signing & not from the date of registration.
In the given question, it is clearly stated that on 1st Jan 1977 the instrument was executed and property was
transferred by Arun to Barun. And after this, a fraudulent lease was created and leased deed dated 1 st
October 1976 was arranged, so it is clear that the deed dated 1st October 1976, was fraudulently executed.
So in the given question the sale deed of 1st January, 1977, will get a priority over the lease deed of
1st October 1976 as this deed was fraudulanty created.
It will be assumed that sale deed was first executed will get a priority on this ground Barun can obtain
cancellation of lease.
Que: If the intention of the legislature is not clear, there are number of presumptions.
Explain any four presumptions.
Ans: Where the meaning of the statute is clear, there is no need for presumptions. But if the intention of the
legislature is not clear, there are number of presumptions. These are:

a. The law is never against state.
b. The law never punishes a person who does not have a guilt intension.
c. The word Mensrea is normally used for interpreting the criminal laws.
d. Indian laws are not interpreted in the manner foreign laws are interpreted.
e. Principle of natural justice shall be followed before passing any decision .
f. Law is never against public policy.
g. Law always suppress mischief.
h. Law always provide remedy to aggrieved party.
The Code of Criminal Procedure
Ques: What are Cognizable & Non-cognizable offences?
Answer:
book
Ques: What do you mean by bail ?
Answer:

book
Ques : What are Anticipatory bail ?
Answer:
book
Ques: What do you mean by Judicial Proceedings ?
Answer:
book
Ques: What so you mean by Pleader?
Answer:
Pleader means any person who is authorized by law to practice in a court and also includes a person who is
allowed to appear in a court with the permission of the court e.g. : Advocate.
Ques: What are Summons case ?
Answer:
book
Ques: Write a note on powers of court to pass sentences ?
Answer:
book
Ques: Can a private person make an arrest?
Answer:
book
Ques: What is the procedure to make an arrest?
Answer:
book
Ques: What is service of summon ?
Answer:
book
Ques : What do you mean by Warrant ?
Answer:
book
Ques: What do you mean by Proclamation?
Answer:
Proclamation means a formal declaration / Announcement, when a warrant issued by the court remains
unexecuted and the court believes that the accused is absconding to avoid the warrant issued against him.
The court can publish a written proclamation to compel his appearance in the court. The proclamation

must specify the date and time for appearance. The accused must present himself in the court or any other
place specified by the court in a period of 30 days or more from the date of issuing proclamation.
Ques: What do you mean by Attachment?
Answer:
If the accused does not appear in the court within 30 days after issuing proclamation, the court can pass an
order for attachment of the properties of the accused. Attachment is the step followed after proclamation.
The purpose of attaching the properties is not to punish the accused but to compel his presence in the court.
Ques: Write a short note on search warrant?
Answer:
book
Ques: Write a note on Inspection of weights and measures?
Answer:
book
Ques: What are Non-cognizable offence ?
book
Ques: What is the Limitation period in respect of criminal offences ?
Answer:
Limitation period means the time within which Court should be approached for getting relief:
 If the offence is committed which is punishable with fine only limitation period is 6 months.
 If the offence is committed in which the imprisonment can be given upto 1 year, limitation period is 1
year.
 In case of 1 to 3 years imprisonment in this case limitation period is 3 year.
 No limitation period in case of more than 3 years imprisonment.
Ques: Write a note on Summary trials ?
Answer:
book
Ques: Write a note on Commencement of period of limitation ?
Answer:
book
Ques: Shyam, a police officer comes to know from reliable sources that four persons are
staying in a house and planning to kidnap and murder Rajan. They are equipped with
automatic weapons. The police officer apprehends that they will commit the crime at any
moment. He directly goes to that house and, without any warrant or order from the
Metropolitan Magistrate, arrests all the four persons along with weapons in their
possession. Is the arrest of all the four persons valid ? Decide with reasons.
Ans:
Facts:

1. Police officer comes to know that four persons are staying in a house and planning to kidnap and murder
Rajan.
2. They are equipped with automatic weapons.
3. Police officer believes that they will commit crime at any moment.
4. The police officer makes an arrest without warrant without any warrant or order from the Metropolitan
Magistrate.
Issue?
Whether such arrest is valid?
Provisions:
It is the duty of the every police officer to prevent the commission of any cognizable offence. The police
officer also has the right u/s. 149 of Code of Criminal Procedure, to take all the measures to prevent
cognizable offences.
iv) If the police officer has any information about commission of any cognizable offence, he must
communicate the information to superior police officer whose duty is to prevent cognizable offence.
v) The police officer can make an arrest without any warrant to prevent the cognizable offence.
vi) The arrested person can be kept in police custody for a period of not more than 24 hours.
Conclusion:
Hence the arrest by police officer is valid.
Ques: A Magistrate of the First Class passed a sentence of imprisonment for a term of three
years with a fine of 6,000 and in lieu of non-payment thereof, an additional imprisonment
for another one year. The aggrieved party, Anshul, wants to prefer an appeal against the
order of the Magistrate. Will he succeed ? Advise with reasons.
Ans:
Facts:
1. Anshul was awarded a sentence of imprisonment for a term of three years with a fine of 6,000.
2. In lieu of non payment of fine the magistrate of first class ordered for additional imprisonment of 1 year.
Issue?
Can Anshul Prefer an appeal against the order of Megistrate.
Provision:
As per section 30 of Code of Criminal Procedure, if a person was ordered for payment of the fine by the
magistrate and such person makes a default in payment of fine, in this case the magistrate may impose
additional imprisonment to the person in making a default in payment of the fine. However the following
conditions should be satisfied before ordering additional imprisonment :
a) The imprisonment should not exceed the powers of magistrate.
b) If the imprisonment is granted in the basis of existing imprisonment it must not exceed 1/4 th of the
existing imprisonment awarded by the magistrate.
Conclusion:
As the original imprisonment is 3 years and the additional imprisonment can not exceed one fourth of
original imprisonment, so the magistrate should have awarded the imprisonment for 9 months. Hence
Anshul can challenge the decision of Megistrate.
Que: Sohan is tried summarily by the Metropolitan Magistrate on the charge of

committingtheft and is sentenced to undergo imprisonment for a period of six months. Can
Sohanchallenge this decision ? If so, on what grounds ?
Ans: Facts: Sohan is tried summarily for offence of theft.
He is sentenced to undergo an imprisonment for a period of six months.
Issue: Can Sohan challenge the decision given by the Metropolitan Magistrate?

Provision: Summary trial is the speedy disposal of the suit, and under summary trial maximum 3 months
imprisonment can be granted.
Conclusion: In the given case Sohan can challenge the decision given by the Magistrate of first class.
Que: Discuss in brief the main remedies available to a person against whom ex parte
decreeis passed.
Ans: book
Que: Angad is charged for the Murder of Binod. The charge sheet is filed in the Court of
Chief Judicial Magisstrate, who passed an order of sentence of imprisonment for life. Angad
engages you as an advocate. Advice the course of action to Angad, giving reasons.
Ans: As per section 29 of Code of Criminal Procedure 1973, the Chief Judicial Magistrate can pass sentence
of imprisonment for a maximum period of 7 years and fine.
In the given question the Chief Judicial Magistrate has passed a sentence of life imprisonment, which is in
excess of the powers of Chief Judicial Magistrate. The Chief Judicial Magistrate in this case should have
referred the case to the Court of Session or the High Court.
So, Angad can challenge the order of Chief Judicial Magistrat before the Superior Courts.
Que: Section 41 of the Criminal Procedure Code, 1973 enumerates the different categories of cases in which
a police officer may arrest a person without an order from a Magistrate and without a warrant. Explain any
five Categories of such cases.
Ans:
As per section 41 of CRPC, 1973, In the following cases a police officer may make an arrest without warrant
or orders from Magistrate:
1) If a person has committed a cognizable offence and the police officer have reliable information about
his linkage in the cognizable offence.
5) Any person who obstructs a police officer while discharging his duty or who attempts to escape from the
police custody.
Notice.
9) Any person for whose arrest request has been received from another police station & the request clearly
specifies the name of the person and the offence committed by the person. Such police officer who has
received a complaint may make an arrest without warrant.
Que: Explain the requisites of a ‗warrant of arrest‘. What is the time limit within which the
police officer should bring the person arrested before the court.
Ans: Every warrant of arrest issued by a Court under the Code of Criminal Procedure, 1973 shall be in
writing, signed by the presiding officer of such Court, and shall bear the seal of the Court. Such warrant
shall remain in force until it is cancelled by the Court which issued it, or until it is executed. (Section 70).
The form of warrant of arrest is Form No.2 of the Second Schedule of the Code of Criminal Procedure, 1973.
The requisites of a warrant are as follows:
1. It must be in writing.
2. It must bear the name and designation of the person who is to execute it;

3. It must give full name and description of the person to be arrested;
4. It must state the offence charged;
5. It must be signed by the presiding officer; and
6. It must be sealed.
Such warrant is only for production of a person before the concerned Court and not before the police
officer.
Under Section 76 the police officer or other person executing the warrant of arrest shall (subject to the
provisions of Section 71 as to security) bring the person arrested before the Court without unnecessary delay
provided that such delay shall not in any case exceed 24 hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate's Court.
Que: Discuss the provisions relating to information to the police and their power to
investigate in cognizable and non-cognizable cases under the Criminal Procedure Code 1973.
Ans: Cognizable Offence – Section 154 and 155:

14. The information related to cognizable offences may be given by any person to the police officer orally or
in written form.
15. If the information is provided to the police officer orally, the police officer shall reduce that information
into written form & should read the information over the informer.
16. The police officer should make an entry into the book maintained by him under the orders of state
government and shall enter such information into book along with the signature of informer.
17. When an entry is made by the police officer into the book prescribed by the government such entry
becomes a government record.
18. Such written information is called as FIR (First information Report).
19. The word F.I.R. is not mentioned anywhere in the criminal procedure court.
20. Even the magistrate can order the police officer to register an F.I.R. for the purpose of investigation.
21. If the police officer refuses to register an F.I.R., the aggrieved party can approach to the superintendent
of Police (S.P.) by making a written application and by post and if S.P. is satisfied that the cognizable
offence is committed, he shall himself investigate the offence or direct his subordinate officer to
investigate the offece.
22. After registration of FIR, the police officer will start the investigation.
Que: Discuss the power to issue order is urgent cases of nuisance or apprehended danger
under section 144 of the Criminal Procedure Code, 1973.
Ans: Power to issue order in urgent cases of nuisance or apprehended danger

(d) As per Section 144:
(e) A District magistrate (authorization of State Government not required); or
(f) A Sub-divisional magistrate or executive magistrate, if authorized by State Government.
Are of the opinion that any act can take place that can disturb public peace create nuisance or danger to the
life of human beings or property.
In this case, the above mentioned magistrates may pass order for discontinuance of certain acts by the
persons or an order may be passed for taking possession of property or assembly of the people can be
restricted.
Term:-Maximum 2 months plus a further period of maximum 6 months.

This order can be imposed in case of riots, disorders, danger to health and safety of people.
Q.1 When the opinion of any person is relevant except experts under the Indian Evidence
act, 1872?
Answer – As per the provision of Indian evidence act 1872, the opinion of a witness on any particular fact or
law is always irrelevant. However there are some exceptions to this rule so in the below mention cases
opinion of witness can also be considered as relevant.

Opinion of experts, like forensic expert, DNA expert, signature expert etc . However in addition to expert
the opinion of following persons can also be considered relevant :
a) The opinion with regard to handwriting of any person by the person who is familiar with handwriting of a
particular person.
b) Opinion as to customs or practices of any place
c) Opinion in relation to digital signatures of the person who is familiar with digital signature of a person
d) Opinion on relationship between the person, who is familiar with such persons
so, in the above cases in addition to expert the opinion of third parties can also be considered as relevant.
Q.2 Extra- Judicial confession was made before a witness who was a close relative of accused
and the testimony of said witness was reliable and truthful. Examine the relevancy of this
confession.
Answer – When confession is made before the magistrate the court, it is refereed as judicial confession , is
some situation when confession is made outside the court to person other than the magistrate, but such
confession is also considered as relevant and such confession are refereed as extra-judicial confessions.
In the case of Ram Khillari vs. State of Rajasthan, the accused had made a confession before his relative,
and testimony of said relative was truthful and reliable the court accepted the statement of such relative .
So, extra judicial confession are considered as relevant if they are given before a person whose testimony is
reliable.
Q.3 Pune University conducted exam for LLB course, after the students appeared for final
examination, the university asked the students to appear for an extra exam for getting the
degree, however the students refuse to appear for such extra exam, the matter reached the
court. Decide.
Answer - As per the rule of Estoppels, whatever has been stated once can not be denied later on . The rule
of Estoppels also applies under Evidence Act, 1872.
In the given question if the students were informed that they will be granted a degree on clearing final
examinations then later on, the university can not ask the students to appear for extra exam.
In the case of Biju Pathaik tech vs Siaram college it was decided that, the students can not be asked to
appear for extra exams for getting the degree, if they were not informed about the exams earlier.
Conclusion -
So in the given question as per rule of estoppels, the court will stop the university from conducting extra
exams.
Q.4 There is dispute between, LIC and Ram with regard to age of Ram. The matter is pending
in the court, with respect to the dispute Ram produced the entries which are made by the
government officer in the Birth Register, to which LIC objects as the register was 25 years
old. Can the entries in register be considered as relevant.
Answer – Statement that are made under special circumstances can be considered as relevant, as per the
provision of Indian Evidence act 1872.
So, the entries that are made by the government officer in the Birth records are the statement under special
circumstances and it can be considered as relevant. It does not matter whether the entry was made 25years
ago.
The case of Anita vs Atal Bihari, it was decided that the entries in the birth register by the government
officer can be considered as relevant.
Conclusion – So in the given case, the record provided by ram relating to entries by government officer will
be considered relevant.
Q.5 Facts which constitute occasion or opportunities can also be considered as relevant,
comment.
Answer- As per the provision of Evidence act, 1872 facts can constitute occasion or opportunities also be
Example - Only the milkman knows that Neha is home alone from 11am to 5pm this fact can be considered
as relevant, if any crime was done against Neha.

Example – Only Ram knows that sham has a diamond ring in his pocket, can be considered relevant if
diamond ring is lost or stolen.
Information Technology Act

Questions and Answers
Ques: What is the liability of Network Service Provider?
Answer: -
Network service provider is an intermediary through which we connect through the internet system.
An intermediary should not be liable under this act, for any third party information or data may available by
it or for contraventions which was done without its knowledge.
If it proves that :-
It took reasonable care and exercised all diligence. [+] The contravention was
not in its knowledge.
Ques: What is Computer Database ?
Answer: -
Book
Ques: Write down the Procedure to obtain digital signature certificate ?
Answer:-
1)Any person may make an application in the form prescribed by central government to certifying authority
for obtaining digital signatures.
2)Along with the application a certificate practice statement should be attached. [CPS means a statement
that certifies a person applying for digital signature is entitled to get a digital signature].
3)After receiving the application the certifying authority will make enquiries and verify the certificate
practice statement, and if CA is satisfied it will issue a digital signature certificate.
4)If CA is not satisfied with the application, it will reject the application by recording reasons in writing and
after providing an opportunity of being heard to the applicant.
Ques: - Write a short Note on E-GOVERNANCE ?
Answer: -
1. Use of information technology in day to day functions of the government, is referred as E-commerce.

2. The act grants legal recognition of electronic records. If as per the requirement of any law matter shall be
in written, type written or in printed form, then the requirement of such law will be satisfied if such matter
is available in electronic form.
3. The act also recognizes electronic signatures :
4. If any law provides :
Filing of any document or form with the government. Grant of any license or approval or registration
by the government. Receipt of money.
5. All the above acts can be done electronically.
6. For providing above services the government may provide a service provider through a notification in
official gazette.
7. The service provider may be an individual, firm, body corporate.
8. The act allows retention of any document in electronic form.
9. The act also requires the audit of documents that are maintain in e-form.
Ques: What procedure is to be followed if information demanded is received from third

party or if the information is considered as confidential by third party and who is third
party?
Ans: When a person other than citizen who asks for information including public authorities, such person
is called as third party.
As per the Provision of RTI Act, 2005, If any information is supplied by a third party or is treated as
confidential by the third party. In this case the PIO should send a notice to third party within a period of 5
days from the date of receiving the application and such third party should make its representation within
next 10 days
It means if PIO has received any information from third party or if the information received from the third
party is considered as confidential by third party, in this case, if PIO receives a request for providing such
information then PIO will send a notice to third party within 5 days of receiving the application and the
third party can make its representation in next 10 days.
Que: The RTI Act, 2005, should not become a tool of creating a fear amongst honest
employees of Government, comment on the statement as per any decision made by Supreme
Court.
Ans In the case of Central Board of Secondary Education vs. Aditya Bandopadhyay, the
Supreme Court decided that:
1. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national
development, or to destroy the peace, tranquillity and harmony among its citizens.
2. It should not be converted into a tool of oppression or creating fear amongst honest officials trying to do
their duty.
3. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time
in collecting and furnishing information to applicants instead of discharging their regular duties.
4. The fear of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not
lead to employees of a public authorities prioritising ‗information providing‘, at the cost of their normal and
regular duties
5. Where the information demanded is not a part of the record of a public authority, and where such
information is not required to be maintained under any law or the rules or regulations of the public

authority, the Act does not put an obligation on the public authority, to collect such non-available
information and then provide it to an applicant.
6. RTI Act provides access to all information that is available and existing.
Ques: One morning, scientists at an atomic research centre found a rude-nuclear message
splashed across their computer screens. Someone had breached the atomic research
centre's advanced security system and sensitive e-mail.
What offence has been committed in the atomic research centre? Decide with reference to
the provisions of the relevant statute.
Answer:
As per section 65 to 78 of Information Technology Act, 2000, If any persons destroys, conceals or alters
any computers source code or destroys or alters any computer system or computer network. [Source code
means, list of programmes, commands design and layout programme] is, punishable with imprisonment
upto 3 years or fine upto Rs. 2,00,000 or both.
So the Scientists can take action as per section 65 to section 78 of Information Technology Act, 2000.
Ques: Write a short note on digital signature and electronic signature?
Ans: Digital Signature is a method of authentication of electronic record by use of asymmetric crypto
system which transfers an electronic record to another electronic record for the purpose of its verification
by a public key.
Electronic Signature : A person may also authenticate an electronic record by using electronic signatures
which is reliable. The electronic signature will be considered as reliable if the following conditions are
satisfied :-
Signature creation data and signature authentication data are linked to signatory and the control of such
data is also with the signatory [the person who signs electronically]Any alteration made to electronic
signature is detectable, It fulfills the other requirements of the Act.
Ques: What are the provisions for payment of Compensation for failure in protection of data
by the organisation that holds personal data of perons?
Answer:
As per section 43A of Information Technology Act, 2000, When a body corporate that holds or possess any
data which is personal or sensitive and such data is in the control of such body corporate and if such body
corporate is negligent in maintaining ―reasonable security procedures‖ due to which wrongful loss or
wrongful gain happens to any person, such body corporate shall be liable to pay damages to the affected
person.
Body Corporate means a firm, sole proprietorship or any association of person, company.
Reasonable security procedure means the procedures or precautions designed to protect the information
when such procedure is required to be followed as per the requirement of any law or agreement.
A person who fails to file a return with central government, as required under this act shall be liable to pay a
fine, not exceeding Rs. 10,000/-
Que: If any person dishonestly or fraudulently or dishonestly does any act under section 43
of IT Act, 2000 without the permission of the owner or incharge of the computer system, he
shall be punished, what is the punishment for the same, In brief discuss the offence listed in
the IT Act, relating to computer and computer system network.

Ans: As per section 43, any person without the permission of the owner of a computer or the person
incharge of the computer or computer system network:-
a) Accesses or secures access to a computer.

b) Downloads or copies or extracts, data.
c) Introduces a computer contaminant or virus.
d) Damages the computer.
e) Disrupts the working of a computer system.
f) Provides assistance to any person to get an access of computer system.
g) Denies access to the owner of computer system.
h) Takes services of any other to get an access to computer system.
i) Destroys, deletes or alters any information residing in the computer system.
j) Seals, conceals or desirous the information residing in computer system.
Such person shall be liable to pay damages by way of compensation to the owner of computer system.
Que: Discuss the provisions of Sections 14 and 15 of Inforrnation Technology Act, 2000, on
secure electronic records.
Ans: The Central Government is required to prescribe the security procedures under this Act, having regard
to commercial circumstances.
When the procedure specified by central government has been applied to an electronic record, then such
record shall be deemed to be a secured electronic record.
A digital signature shall be deemed to be secured if :-
Electronic Signature creation data is The signature creation data is allowed as

under exclusive control of signatory. per the manner given in section -15.
Que: Describe the documents or transactions to which the Information Technology Act,
2000 shall not apply.
Ans: Following documents or transactions to which the Information Technology Act, 2002
shall not apply:
1. A negotiable instrument (other than a Cheque) as defined in section 13 of the Negotiable Instruments Act,
1881.
2. A power-of-attorney as defined in section 1A of the Powers-of-Attorney Act, 1882.
3. A trust as defined in section 3 of the Indian Trust Act, 1882.
4. A will as defined in clause (h) of section 2 of the Indian Succession Act, 1925,
including any other testamentary disposition by whatever name called.
5. Any contract for the sale or conveyance of immovable property or any interest in such property.
Que: Describe the offence of ‘ hacking’ the computer system as provided under the
provisions of the Information Technology Act, 2000
Ans: As per section 66 of IT Act, 2000, Whoever with the intent to cause or causes wrongful loss or
damage to the public or any person destroys or deletes or alters any information residing in a computer
resource or diminishes its value or utility or affects it injuriously by any means, commits hacking.
Whoever commits hacking shall be punished with imprisonment up to three years, or with fine which may
extend up to two lakh rupees, or with both.

Explanation: The section tells about the hacking activity.
Que: Explain the procedure for obtaining ‗Electronic Signature Certificate‘ under the Information
Technology Act, 2000.
Ans: Sections 35-39 of the Information Technology Act, 2000 deal with Electronic Signature Certificates. As
per section 35 of the Act, Certifying Authority issues Electronic Signature Certificate. Following is the
procedure of obtaining Electronic Signature Certificate:
(1) Any person may make an application in prescribed form to the Certifying Authority for the issue of
electronic signature Certificate in such form as may be prescribed by the Central Government.
(2) Every such application shall be accompanied by the prescribed fees.
(3) Every such application shall be accompanied by a certification practice statement or where there is no
such statement, a statement containing such particulars, as may be specified by regulations.
(4) On receipt of an application, the Certifying Authority may, after consideration of the certification
practice statement or the other statement and after making such enquiries as it may deem fit, grant the
electronic signature Certificate or for reasons to be recorded in writing, reject the application.
No application shall be rejected unless the applicant has been given a reasonable opportunity of showing
cause against the proposed rejection.
Que: Elaborate the offences relating to computers and connected matters therein.
Sections 65-78 of Chapter XI of the Information Technology Act, 2000 deal with offences relating to
computers etc. and connected matters.
These offences include: Tampering with computer source documents Whoever knowingly or intentionally
conceals, destroys or alters or intentionally or knowingly causes another to conceal, destroy, or alter any
computer source code used for a computer, computer programme, computer system or computer network,
when the computer source code is required to be kept or maintained by law for the time being in force, shall
be punishable with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or
with both.
Computer related offences If any person, dishonestly or fraudulently, does any act referred to in section 43,
he shall be punishable with imprisonment for a term which may extend to three years or with fine which
may extend to five lakh rupees or with both. (Section 66) The offences listed in Information Technology Act,
2000 are as under:
(a) Dishonestly receiving stolen computer resource or communication device
(b) Identity theft
(c) Cheating by personation by using computer resource
(d) Violation of privacy
(e) Cyber terrorism
(f) Publishing or transmitting obscene material in electronic form
(g) Publishing or transmitting of material containing sexually explicit act, etc., in electronic form
(h) Publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form
(i) Misrepresentation
(j) Breach of confidentiality and privacy
(k) Disclosure of information in breach of lawful contract

(l) Publishing electronic signature Certificate false in certain particulars
(m) Publication for fraudulent purpose.
Right to Information Act, 2005
Que: State any four obligations of Public Authority prescribed under Section 4(1)(b) of the Right to
Information Act, 2005.
Ans: As per section 4 of Right to Information Act, 2005, Within a period 120 days from the date of
enactment of this act, every public authorityshall maintain and publish following records :-
Functions of the Power and Duties The budget of such How the subsidy
public authority of the employees of public authority programmes of the
the public government are
authority implemented.
What rules the Salaries to the
authority follows for employer of public
discharging the authority.
functions.
Documents that Name and Committees on Decision making The manner in

are held under designation of task forces process of the which the public
the control of public created by public public authority. participates in
public authority information authority. framing of
officer policies of public
authority
Que: Section 20 of the Right to Information Act, 2005 deals with the penalties imposed on a
Public Information Officer (PIO). Explain.

Ans: Section 20 of the Right to Information Act, 2005 imposes stringent penalty on a Public Information
Officer (PIO) for failing to provide information. Every PIO will be liable for fine of Rs.250 per day, up to a
maximum of Rs.25,000/-, for – (i) not accepting an application; (ii) delaying information release without
reasonable cause; (iii) malafidely denying information; (iv) knowingly giving incomplete, incorrect,
misleading information; (v) destroying information that has been requested; and (vi) obstructing furnishing
of information in any manner. The Information Commission (IC) at the Centre and at the State levels will
have the power to impose this penalty.
They can also recommend disciplinary action for violation of the law against the PIO for persistently failing
to provide information without any reasonable cause within the specified period.
Que: Explain the provisions for appeal under the Right to Information Act, 2005
Any person who does not receive a decision within the specified time or is aggrieved by a decision of the
Public Information Officer (PIO) may file an appeal under Section 19 of the Right to Information Act, 2005.
Code of Civil Procedure, 1908 First Appeal : First appeal to the officer senior in rank to the PIO in the
concerned Public Authority within 30 days from the expiry of the prescribed time limit or from the receipt
of the decision (delay may be condoned by the Appellate Authority if sufficient cause is shown).
Second Appeal : Second appeal to the Central Information Commission or the State Information
Commission as the case may be, within 90 days of the date on which the decision was given or should have
been made by the First Appellate Authority (delay
may be condoned by the Commission if sufficient cause is shown)
Que: Write a note on Central Information Commission? – 8 Marks
Ans: This commission is formed by Central Government by issuing a notification in the official gazette.

commissioners.

nominated by Prime
Minister.
Qualifications of Chief Information Commissioner.
Management
Every Information Commissioner shall hold office for such term as may be prescribed by the Central
Government or till he attains the age of sixty-five years whichever is earlier and shall not be eligible for
reappointment however he shall be, on vacating his office be eligible for appointment as the Chief
Information Commissioner.
If Information Commissioner is appointed as the Chief Information Commissioner, his term of office shall
not be more than five years in aggregate as the Information Commissioner and the Chief Information
Commissioner.

The Chief Information Commissioner or an Information Commissioner shall before joining his office make
an oth in respect of his duties as given in schedule 1, before the President or some other person appointed
by President.
The Chief Information Commissioner or an Information Commissioner may by writing to President,

anytime resign from his office, however he may also be removed under section 14.
The Central Government will also provide officers to the commissioners who will help the commissioners in
efficient discharge of their functions.
Que: What are the powers of Information Commissioners?
Ans: Powers of Information Commissioner
The Central and State Information Commission have the power as well as duty to receive complaint from
any person:
- Who could not file application, as PIO was not appointed

- Whose application was rejected.
- Who was not supplied the information within specified time.
- Who believes information provided to him is false, misleading or incomplete
- Who believes unreasonable fees is demanded for providing the information.
If the commission is satisfied with the complaint, it will accept the application and start the enquiry, at the
time of making enquiry the commission will have same powers as are vested in the civil court under the
code of civil procedure, 1908.
On such enquiry no document can be with held on any ground.
Ques: What are the Obligations of public authority ?
Answer:-
When a period 120 days from the date of enactment of this act, every public authority shall maintain and
publish following records :-
- Functions of the Public authority.
- Power and duties of the employees of the public authority.
- The budget of such authority
- How the subsidy programmes of the government are implemented
- What rules the authority follows for discharging the functions
- Salaries to the employees of public authority
- Documents that are held under the control of public authority
- Name and designation of public information officer
- Committees on task forces created by public authority.
- Decision making process of the public authority.
- The manner in which the public participates in framing of policies of public authority
Ques: What are the duties of public information officer ?

Answer:
- The applications should be made to the public information officer in writing if any party is not able
to write the application then public information officer shall assist such party in writing the application.
- If the information is not with public information officer but with some other authority then PIO
shall transfer the application to such authority within 5 days and inform the applicant accordingly.
- The PIO shall provide the requested information within 30 days or the PIO may reject the
application by providing reasons in writing.
- The PIO may also take the help of the other PIO to provide the required information.
- If PIO rejects the application then :
He has to give reasons Within how much time an appeal can be preferred against the decision of PIO.
The details of appellate authority where appeal can be preferred.
- The PIO must provide the information which is full and relevant.
- If the PIO provides partial information following conditions must be fulfilled :-
The case must relate to a situation only when relevant part of information can be disclosed. Fees to be
charged must be specified. PIO shall disclose the reasons for providing partial information. With who
the designation of PIO can be challenged should also be informed by PIO to the applicant. Name and
designation of the officer providing the information has to be provided to the applicant.
- If any information is supplied by a third party or is treated as confidential by the third party. In this
case the PIO should send a notice to third party within a period of 5 days from the date of receiving the
application and such third party should make its representation within next 10 days.
Ques: If the PIO provides partial information what conditions are to be fulfilled?
Answer:
- If the PIO provides partial information following conditions must be fulfilled :-
1. The case must relate to a situation only when relevant part of information can be disclosed.
2. Fees to be charged must be specified.
3. PIO shall disclose the reasons for providing partial information.
4. With whom the designation of PIO can be challenged should also be informed by PIO to the
applicant.
5. Name and designation of the officer providing the information has to be provided to the applicant.
Ques: What kind of information are exempted from disclosures?
Answer:
The following kinds of information are exempted from disclosure under this act and hence they will not be
disclosed :-
- Sovereignty & Integrity of India.
- Relations with Foreign State
- Information that insights a person to commit offence
- Trade secrets, confidential information of any business copyrights.

- Strategic, scientific or economic interest of the country.
- The information which affects life or personal safety of a person .
- If the information causes a breach to the privilege of parliament or state legislature.
- Information that is forbidden by the court.
- Information received in confidence from a foreign state
- Information that may affect process of investigation
- Cabinet papers, records kept by the ministers.
However when the ministers have taken a decision, the decision has to be shared with the public along with
reasons for such decision.
- Information that affects privacy of a person cannot be shared unless a larger public interest justifies
it.
- Section 9 :The information which will infringe copyright of some other person, such information will
not be shared.
Ques: Bimal made an application in writing with prescribed fee to the Public Information
Officer neither provided the required information nor rejected the application of Bimal for
providing the required information although a period of 45 days elapsed from the date of
submitting the aforesaid application to the PIO. Bimal wants to file a suit in the civil court
for not providing the required information to him. Advise Bimal.
Answer:
As per the provisions of Right to Information Act, if any party is not satisfied with the information given by
PIO or if no communication is made by the PIO within a period of 30 days of receiving the request in this
case the aggrieved party shall file an appeal to the officer in senior rank to the PIO within a period of 30
days from the date of expiry of such 30 days or from the date of receiving the decision of PIO.
In the given question Bimal can not file an appeal before the civil court.
Ques: Amar is a citizen of India and lives in Delhi with his family. He makes an application to
the Public Information Officer (PIO) under the Right to Information Act, 2005 and
completes all the formalities. The information sought relates to Cabinet papers including
records of deliberations of the Council of Ministers. The PIO rejects the application. Has
Amar any right to go to the court or to the Central Information Commission against the
decision of the PIO ? Give your answer quoting the relevant provisions of law.
Answer:
As per the provisions of Right to Information Act, certain information are exempt from disclosures which
includes Cabinet papers, records kept by the ministers. So a person can not make any request for these
information and the PIO has a right to reject application concerning this information.
So in the given case study Amar can not file any case against the decision of PIO.
Que: Mr Z demanded an information from the PIO, but he was only provided with the part of
the information and not the complete information, can partial information be provided
under RTI Act, 2005, can Mr. Z make an appeal against the decision given by the PIO and if
yes, with whom the appeal can be filed?
Ans: Under the Right to Information Act, 2005, the PIO can provide partial information if the
below mentioned conditions are satisfied then the PIO may provide partial information:
a) When the case relates to a situation, when only relevant part of the information can be disclosed.

b) The PIO shall disclose the reasons for providing partial information.
c) Name and designation of PIO, providing the partial information shall be disclosed to the applicant.
d) The details of appellate Authority with whom the decision of PIO may be challenged shall also be
disclosed to the applicant.
e) Fees to be charged for providing partial information shall be disclosed.
So in the given case parital information can be provided by the PIO. If Mr Z intends to prefer
an appeal, he can file an appeal to the senior rank officer of the PIO in the public Authority
within a period of 30 days from the date of receiveing the order of PIO.
Que: In R. P. Ltd. Vs. Indian Express Newspapers, the Supreme Court read into Article 21 –
the right to know. Discuss how right to know is related to Right to Information under The
Right of Information Act, 2005.
Ans: In the case of RP Ltd. V/s. Indian Express Newspaper, the court decided that Right to
Information, is the part of Right of life and personnel liberty as contained in article 21 of Constitution of
India, as liberty involves the liberty to obtain and receive information.
Article 21 of the Constitution of India confers on all persons a right to know which include a right to receive
information. The Supreme Court held that right to know is a necessary ingredient of participatory
democracy.
As per the Supreme Court now days due to advancement of technology the global borders do not exist, and
all the persons are enjoying much more freedom so in present times the meaning of the word liberty has
greatly widened. The individual now days have full freedom to express their opinion on any issue and the
best opinion can be expressed when the individuals have full information and that‘s the reason that right to
receive information has been included in the article 21 relation to life and personal liberty.
TEST
1. Write any 5 information that are exempt from being disclosed.
Ans: Right to Information Act, 2005, exempts certain information from being disclosed on
the various grounds which are in the interest of the Country.
Sovereignty & Relations with Information that [in Trade secrets,

Integrity of India. Foreign State cities] that insights a confidential
person to commit information of any
offence. business copyrights.
Strategic, Scientific or economic interest of the The information which affects life or personal
country. safety of a person.
If the information causes a breach to the Information that is forbidden by the Court.
privilege of parliament or state legislature.
Information received in Information that may
confidence from a foreign affect process of
state. investigation.
The above information are exempt from being disclosed and it also includes other
information also.
Que:What is the Procedure for filing application under RTI Act, 2005.

Ans: Under the Provisions of RTI Act, there is a very simple procedure for obtaining
information under the Right to information Act. The procedure comprises of following
steps:
 The applications should be made to the public information officer in writing if any party is not able
to write the application then public information officer shall assist such party in writing the
application.
 If the information is not with public information officer but with some other authority then PIO
shall transfer the application to such authority within 5 days and inform the applicant accordingly.
 The PIO shall provide the requested information within 30 days or the PIO may reject the
application by providing reasons in writing.
 So if the application is forwarded to some other APIO than the information will be given within 35
days (5 days + 30 days).
 The PIO may also take the help of the other PIO to provide the required information.
 If PIO rejects the application then :
 He has to give reasons  Within how much time  The details of appellate
an appeal can be authority where appeal
preferred against the can be preferred.
decision of PIO.
 The PIO must provide the information which is full and relevant.
Que 3: Mr. Narendra Modi has been recently appointed as the Prime Minister of the Country
and he wants to know the procedure to appoint Chief Infromation Commissioner and the
Central Information Commissioner under the Provision of RTI Act and he also wants to
know the term of office of such commssioners?
Ans: The Central Information Commission is formed by Central Government by issuing a notification in
the official gazette.

commissioners.

nominated by Prime
Minister.
Qualifications of Chief Information Commissioner.
Management
Appointed for notified term by the Central Government.
Que: Right to receive information is a fundamental right, comment.
Ans: The Supreme Court in the majority of cases has held that the Government as Servant of
citizens shall keep few secrets and share maximum information with the Citizens so that the
Citizen can also supervise the functioning of the Government.

In the case of RP Ltd. V/s. Indian Express Newspaper, the court decided that RIT is the part of Right
of life and personnel liberty as contained in article 21 of Constitution of India, as liberty involves the liberty
to obtain and receive information.
Right to information is also the part of article – 19 (1) (a) of constitution of India which deals with freedom
of speech or expression. It means a person can express himself in a better manner if he has all the
information.
So hence we can conclude that the right to information is a fundamental right under article
21 as well as 19 (1)(a) of the Constitution of India.
TE CODE OF CIVIL PROCEDURE, 1908

Ques: Write a short note on kinds of jurisdiction ?
Answer:
Appellate jurisdiction means a decision passed by the superior Court on appeal made by the party when
he is not satisfied with the original jurisdiction given by the Court. In other words appellate jurisdiction
means a jurisdiction exercised by the court on the appeal filed by party.

All courts except for small Civil Court (district or High Court or supreme court) are allowed to exercise
original as well as appellate jurisdiction.
Plaint + Decree = Original jurisdiction.
Appeal + Decree = Appellate jurisdiction.
In the case of Rex v. Boltan, it was decided that the jusrisdiction of the Ciurt in respect of any matter does
not depend upon the truth or falsehood of facts but upon the nature of case and the jurisdiction is decided
in the beginning and not at the conclusion of enquiry or proceedings.
Ques: What is Doctrine of res sub judice ?
The word ‗Res‘Means a ‗matter‘ & the word ‗Sub-Judice‘ means under consideration or pending in the Court
of law. ‗Res Sub judice‘ means any matter which is pending before a court or has not been decided by the
Court. This concept is covered in section 10 of CPC.
law, the same suit between same parties under a same title for a same subject matter cannot be filed
in any other court of law.
competent Court in India, then the Second Court shall not proceed with the trial. The second court
will stay the suit.

5) However, if the suit is pending in foreign court which is established by the Indian Government than
the doctrine of res sub judice will be applicable.
contract due to which the tenant filed a case of specific performance in the Court. In the meanwhile
the landlord filed a case against the tenant for eviction of the tenant from the leased property under
rent control act, the tenant objected the suit filed by landlord on the ground of res sub judice, the
Court decided that both the suits have different subject matters and subsequent suit can not operate
as res sub judice (N.P Tripathi Vs. Daymanti Devi)
CASE LAW :
There were two companies: Wings pharmaceuticals and Swan Pharmaceuticals. Swan pharmaceutical filed
a plaint against Wings pharmaceutical in Mumbai Court for infringement of trade mark of medicine.
trademark against Swan pharmaceutical. It is the duty of Ahmedabad Court to dismiss the plaint as the
principal of res sub judice will apply in the case
Ques: What is the DOCTRINE OF RES – JUDICATA?

6) The word Res – means a ―matter‖ & judicata means ‗already decided by the Court.‘ According to this
Doctrine, if a matter is finally decided & disposed of by the competent Court of law in India, then for
same subject matter, same parties under a same title cannot approach to a different Court.
The doctrine underlines the general principle that no one shall be twice vexed for the same cause (S.B.
Temple v. V.V.B. Charyulu, The doctrine of res judicata prevails over the doctrine of lis pendens where
there is a conflict between the two.
7) If parties approach to a different court for a same subject matter which has already been decided by the
some other Court, the second court shall dismiss the matters by applying the Rules of Res – Judicata.
The issue or the suit itself is heard and finally decided, then it operates as res judicata and is not the
reasons leading to the decision (Mysore State E. Board v. Bangalore W.C. & S. Mills).
8) This rule will be applicable when the same matter has been already heard & decided by a competent
court.
9) A consent or compromise degree is not a decision by Court. It is an acceptance of something to which

the parties had agreed. The Court does not decide anything. The compromise decree merely has the seal
of the Court on the agreement of the parties. As such, the principle of res judicata does not generally
apply to a consent or compromise decree.
But when the court on the facts proved comes to a conclusion that the parties intended that the consent
decree should have the effect of deciding the question finally, the principle of res judicata may apply to
it.
10) When the Court reviews its decision or when any appeal is filed in the superior court, the principal of res
judicata does not apply.
When a suit has been decided on merits, and the appeal is dismissed on a preliminary point, it amounts to
the appeal being heard and finally decided and the decision of appellant Court operates as res judicata
(Mukunda Jana v. Kanta Mandal)
In short, this principle applies where an issue which has been raised in a subsequent suit was directly and
substantially in issue in a former suit between the same parties and was heard and decided finally. Findings
incidentally recorded do not operate as res judicata (Madhvi Amma Bhawani Amma v. Kunjikutty
P.M. Pillai,)
The Cases in which Res Judicata Applies The Case in which Res judicata Does not
(The Court will not accept subsequent Suit) apply

(The Court will accept subsequent Suit)
If the Court has heard and decided the amendment Application for amendment of Decree
decree than it will operate as Res judicata
Suit passed by the Court that does not have Application for review of the decree.
jurisdiction but competent to try the suit.
If there is some error in the judgement or decree The Consent decree passed by the Court which just
passed by the Court. has seal of the Court on settlement made by the
party.
If the Court expresses its opinion on the consent If the application of review has been rejected by the
decree passed by the Court. Court.
When the suit is decided on merits and appeal has Dismissal of suit on default and no decision has
been rejected on preliminary point. been given on merits ( decision on merits means the
decision after hearing the parties and considering
the facts of the case)
Que: What is constructive Res Judicata?

The doctrine of constructive res judicata is based on the following grounds of public policy:
 There should be an end to litigation;
 The parties to a suit should not be harassed to agitate the same issues or matters already decided
between them;
 The time of Court should not be wasted over the matters that ought to have been and should have
been decided in the former suit between the parties;
 It is a rule of convenience and not a rule of absolute justice.
In case of representative suit or class actions, the decision passed by the Court binds all the parties to the
Suit, so if any party to representative suit brings a subsequent suit in respect of same matter, the principal,
of Res Judicata or Constructive Res Judicata will apply.
Ques: Write a note on Set Off ?

Answer:
defendant for a certain sum of money.
20) In the same suit, the defendant also has a right to file a written statement in the court for claiming a
22) Set off is the right of defendant.
defendant.
enable the Court to pronounce a final judgement in respect both of the original claim and of the set-
off, but this shall not affect the right of lien, upon the amount decreed, of any pleader in respect of
the costs payable to him under the decree.
Judgement Decree
These are the grounds of decree or order In decree it is not necessary to give grounds
Not a formal expression of the Court The decree has to be a formal expression of the
Court.
It must precisely state the relief granted It deals with the rights of the parties.

It is passed prior to the passing of decree Decree is passed after judgement is pronounced or
passed.
Judgement may be passed in civil as well as Decree is generally passed in civil cases.
criminal cases
Decree Order
Can be passed only when plaint is filed. Can be passes on plaints, applications and
petitions.
Conclusive in nature May or may not be conclusive
May be preliminary or final or partly There can not be any preliminary order
preliminary or partly final
In one case only one decree except when In one case many orders can be passed.
preliminary and final decrees are passed.
Decree is appealable unless specifically Only appealable orders can be appealed.
restricted.
Second appeal can also be filed No second appeal can be filed even on
appealable orders.
Set off
defendant for a certain sum of money. It is basically a cross claim by the defendant in respect of
fixed amount (ascertained sum) of money and for this amount even a separate case could have
been filed. The court can accept the claim of set off to avoid multiplicity of suits.
27) Set off is a defense for defendant if he has to claim ascertained sum of money from plaintiff.
28) One of the conditions for claiming set off is that both the claims must be relating to money
(plaintiffs and defendant) time barred debt can not be claimed in set off.
29) In the same suit, the defendant also has a right to file a written statement in the court for claiming
a set off in respect of the money which he has to recover from the plaintiff.
31) Set off is the right of defendant. Basically liquidated damages are claimed by the defendant
through set off, from the plaintiff.
defendant.
33) Even if plaintiff has withdrawn his case, the claim of set off is not affected. In set off the claim may
arise from different transactions but the claims must relate to same right i.e. the right to claim
money.
34) For example: A student (plaintiff) claimed refund of fees though a suit but the teacher (defendant)
claimed that the student had borrowed Rs. 5000 from him.
enable the Court to pronounce a final judgement in respect both of the original claim and of the
set-off, but this shall not affect the right of lien, upon the amount decreed, of any pleader in respect
of the costs payable to him under the decree.
Counter Claim :
12) When the claim of defendant exceeds the claim of plaintiff this situation will give a rise to “counter
claim”. It is a weapon at the hands of defendant (set off was defense). In case of counter claim even

unascertained sum of money can be claimed. The right of counter claim may even arise from
different transactions.
14) The defendant can file counter claim at the time of submitting his defense or it can even be filed
after filing of defense (order 8 Rule 9) or even if new claims arise after filing of defense then too it
can be filed.
15) The counter claim is treated as sperate plaint of defendant in the same case. Counter claim is not
limited to money suits only it means in other cases also counter claim can be filed by defendant.
Example: if Ramesh has filed a case against shyam for possession of property, so the Court issued a
Summon to Shyam, now when Shyam filed his written statement shyam stated that the property does not
belong to Ramesh Shyam is the Owner of said property.
Equitable Setoff :
16) If the claims between the parties arise out of the same transaction and the claim of defendant is for
an unascertained sum of money, in this case the defendant will be allowed to claim for an
equitable set off in the same suit.
matter.
18) When parties make cross demands of money on account of a single transaction the court may
grant equitable set off.
19) The concept of equitable set of is not recognized in India. However, the Court allows, when parties
claim equitable set off.
equitable set off.
21) For example, A Servant was not paid salary for last 6 months and he filed a case against the
owner but the owner said that servant has broken his valuable articles.
22) Example: A student claimed refund for his fees as he was not satisfied by the classes the coaching
class claimed equitable set off for damages to the property done by the student.
23) In a suit by a washerman for his wages, the defendant employer should be able to set off the price
of the clothes lost by the plaintiff. In such a case, driving the plaintiff to file another suit would be
unfair. A set off in such situations is called an Equitable Set off.
Set off Counter Claim Equitable Set off

Right of Defendant Right of Defendant Right of Defendant
Ascertained sum of money Ascertained or Unacertained Unacertained sum of money.
sum of money
Court is bound to accept Court is bound to accept Court is not bound to accept,
depends upon discretion of
court.
Claims can be on account of Claims can be on account of Claims has to be on account of

same or different transactions same or different transactions same transaction.
Both the claims must relate to Claims can relate to money or Case must relate to money.
same rights i.e. recovery of other claims also
money.
Time barred debt can not be Time barred debt can not be Time barred debt can be
claimed as set off. claimed even in counter claim claimed in equitable set off.
Court fees is required Court fees is required Court fees is not required for
claiming equitable set off.
Treated as separate plaint Treated as separate claim May be treated as separate
claim if court accepts it.
Must be filed at the first Has to be filed at the time of Must be filed at the first
hearing of suit and not filing defense or even hearing of suit and not
afterwards, however court can afterwards. afterwards, however court can
accept even after first heating accept even after first heating
of suit. of suit
It’s a defense Its an attack by defendant Can be considered as defense.
Ques: Write a note on :SUMMARY PROCEDURE / SUMMARY SUIT?
3) Summary procedure can be followed in the cases related to promissory note, bill of
exchange, payment of money etc.
g) High Court,
h) City Civil Court or small civil court.
i) Any other court which is authorized by high court.
5) To commence the summary proceedings, the plaintiff has to proof the following points
to the court.
g) The suit is filed under order of 37 of civil procedure code.
h) The suits relates to matter covered under order XXXVII of Civil Procedure Code (i.e. Promissory
Reference Review Revision

It can be made only to the High It is done by the Court which has It is done by the High Court.
Court passed the decree
The case is referred to the High The application for review is The case comes to High Court by
Court by the subordinate court. made by the aggrieved party. application of aggrieved party or
High Court on its own orders for
reopening of case.
Reference is made on questions of Here a party is not satisfied by In revision the question relates to
law, as to if the inferior court has the decree or order jurisdiction of the inferior court.
doubts with regard to any law,
provision of law, ordinance,
regulation etc, the court can refer
the case to the High Court.
It is made when the suit is It is made when decree or order It is done when a jurisdiction has
pending. has been passed been exercised. No appeal can be
preferred when any decision has
been given by the High Court by
revising any case.
i) The Relief claimed by the plaintiff is covered under XXXVII of Civil Procedure Code.
6) An application for commencement of summary Proceedings will be made to court in
prescribed form.
7) The Court will send a summons to the defendant & the defendant will have to reply
within 10 days from the date of service of summons.
8) In summary proceedings, the defendant is not allowed to defend himself without
permission of court.
9) But Normally the Court grants permission to the defendant unconditionally for
producing his defense.

e) Where the claim of plaintiff is accepted by the defendant & deposited into the court.
f) Where the court believes that the defense produced by the defendant is not much important.
10) If the defendant does not reply the summon within 10 days or does not present himself
within 10 days from the date of service of summon, the court may pass an ex-parte
decree.
Ques: Amit is the resident of Jaipur and Babita is of Delhi. The marriage between two was
solemnised at Ajmer. Both Amit, husband and Babita, wife lived together at Udaipur. Amit
treated his wife Babita with cruelty. Babita, the wife comes to you as an advocate to file a suit
against Amit for divorce on the ground of ‗cruelty‘. Advise Babita, in which court Babita has
the right to file the suit. Decide citing the relevant provisions of law.
Answer:
Facts:
Amit is the resident of Jaipur. Babita is resident of Delhi and their marriage took place at Ajmer. They lived
in udaipur after the marriage. Babita Accuses Amit of Cruelity.
Issue?
The case should be started in which court.
Provision:
As per section 20 of the Code of Civil Procedure the other suits shall be filed in the court under whose
jurisdiction the cause of action has arisen or where defendant or each of the defendents actually resides or
works for gain.
Conclusion:
So the case can be filed at Jaipur where the defendant i.e Amit resides or Udaipur where cause of action
arose i.e cruelity against Babita took place.
Ques: A real estate company has its head office at Delhi and branch offices at Ahmedabad,
Patna and Indore. A dispute cropped up between Sorabh and the company in respect of a
transaction through Ahmedabad office. Sorabh files a suit in respect of this dispute against
the company in a court at Patna. How will the court decide ?
Answer:
As per section 20 of the Code of Civil Procedure the other suits shall be filed in the court under whose
jurisdiction the cause of action has arisen or where defendant or each of the defendents actually resides or
works for gain.
In the given case study the dispute has arisen at Ahemdabad, so Ahemdabad is the place of cause of action,
and the defendant i.e the the company has its head office at Delhi and the branch office at Ahemdabad
Patna and Indore. Sorabh started a case against the company at the Court of Patna while the dispute arose
at the Ahemdabad branch.
So the case which is filed in Patna is justified, as, the defendant is company and company has a branch at
Patna, however the permission of the Court has to be obtained.
Ques: A suit was instituted by the plaintiff company alleging infringement by the defendant
company for using trade name of medicine and selling the same in wrapper and carton of
identical designs with same colour combination, etc., as that of plaintiff company. A
subsequent suit was instituted in a different court by the defendant company against the
plaintiff company with similar allegations. In such a situation, advise the plaintiff company
the procedure adopted by the courts.
Answer:
Facts:
1. A company filed case against other company for infringement of trademarks and designs.
2. The defendant company also filed case against the plaintiff company in a different court for infringement
of copyrights and designs.
Provisions
The case study deals with the doctrine of sub judice as given in section 10 of Code of Civil Procedure, 1908,
according to the doctrine of Res Sub Judice, if any suit / case is pending in a competent Court of law, the
same suit between same parties under a same title for a same subject matter cannot be filed in any other
court of law.

If any other court of law is approached for the same matter which is ―Sub-judice‖ in any other competent
Court in India, then the Second Court shall not proceed with the trial. The second court will drop the suit.
There were two companies: Wings pharmaceuticals and Swan Pharmaceuticals. Swan pharmaceutical filed
a plaint against Wings pharmaceutical in Mumbai Court for infringement of trade mark of medicine.
trademark against Swan pharmaceutical. It is the duty of Ahmedabad Court to dismiss the plaint.
Conclusion:
The plaintiff company may ask the other court to dismiss the case on the basis of doctrine of Res Sub
Judice.
Ques: Ram and Shyam sell rice for Rs.25,000 to Sohan and Mohan. Sohan sells cloth worth
Rs.28,000 to Shyam. Sohan files a suit against Shyam for recovery of price of cloth. Shyam
claims set-off of the cost of rice in this suit. Will he succeed ?
Ans:
Facts:
In the given case study Ram and shyam have sold rice to sohan and mohan. Sohan has separately sold cloth
to shyam. When Sohan files a suit for recovery of the amount of cloth, Shyam claims a setoff.
Provisons:
The concept of setoff has been defined under order 8 and rule 6 of civil procedure code. When a suit related
to monetary claim has been started in the court & plaintiff makes claim from defendant for a certain sum of
money. In the same suit, the defendant also has a right to file a written statement in the court for claiming a
Conclusion:
Shyam can not claim set off as Rice was supplied by Ram and Shyam to Sohan and Mohan. So only Shyam
can not claim set off from sohan.
Que: Mohan filed a suit against Sohan and Rohan for partition of coparcenery property‗P-1‘.
The suit has been decided. Mohan files another suit against Sohan andRohan for the
partition of coparcenery property ‗P-2‘, which was in existence atthe time of filing of the first
suit. Decide.
Ans: Facts:
Mohan filed a case against Sohan and Rohan for partition of coparcenary property.
The Court has decided the Suit.
Mohan files another suit against Sohan and Rohan for partition of Coparcenary prooerty p-2.
Issue: Whether the Court will accept the second suit or dismiss the suit by applying the principal of Res
Judicata.
Provision: As per section 11 of the Civil Procedure Code, when a matter has already been decided by the
Competent Court, the same matter, between the same parties can not be decided by the subsequent Court.
Supreme Court in Gouri Naidu v. Thandrothu Bodemma,decided that, even if erroneous judgement is
passed, same parties for same subject matter can not file a subsequent suit in the same level of the Court. If
the decision of the Court stated that the gift between the coparceners of HUF is invalid under Hindu Law,
the Principal of Res Judicata will apply in the subsequent suit also, even if the suit was related to partition.
Conclusion: In the given case study the matter in subsequent suit also relates to the same matter, that is
partition of coparcenary property p-2, so the principal of Res Judicata will apply and the Court will not
accept the subsequent suit.
Que: Anil was a trustee of a trust. After Anil‘s death, Brij wrongfully takes the possessionof
the trust property. Chandan, the son of Anil files a suit for recovery of possessionof the
property against Brij as the legal heir of Anil in his individual capacity.But Chandan did not
succeed. Then Chandan files another suit for recovery oftrust property against Brij in the
capacity of trustee as he was appointed astrustee after the death of Anil. Whether the second
suit is barred by the doctrineof constructive res judicata ? Explain.
Ans: Facts:
After the death of Anil who was trustee of the trust Brij wrongfully takes the possession of the property.
Chandan who is son of Anil, files a suit for recovery of the possession in the capacity of legal heir. Chandan
did not win the case.
Chandan was appointed as a trustee and he files a fresh case against Brij in the capacity of the trustee.
Issue: Whether the second suit will be accepted or rejected on the ground of Res Judicata
Provision: As per section 11 of CPC, if the same parties under the same title in respect of the same subject
matter approach the Court in respect of the matter that has already been decided by a Court the second
court shall reject the subsequent suit by applying the principal of res judicata.
Conclusion: In the given case study as Chandan has obtained a different title in the subsequent suit,
principal of res judicat will not apply and his case will be accepted.
Que: Elaborate the provisions of Civil Procedure Code, 1908 regarding suits by or against minors and what
will be the impact after minor attains the age of majority?
Ans: SUIT BY OR AGAINST A MINOR
SUIT BY A MINOR
2) Minor is a person who has not completed age of 18 years or for whom or his/her property a guardian
has been appointed by a Court, or whose property is under a Court of Wards, the age of majority is
completed at the age of 21 years
e) Suit by a minor :
Suit by a minor can be started in his own name by a person who shall be next friend of minor.
f) Next friend of minor shall be a major person & of sound mind and his interest should not be against
the minor and the defendant can not become next friend of minor.
g) If a suit is started without next friend by a minor, the defendant may apply the court to dismiss the
suit and the costs of suit will be paid by the person who filed such suit.
h) If minor attains majority during the continuance of the suit :
Minor can withdraw or discontinue a suit Minor can continue suit
The next friend of the minor will also be Minor will give an application to the court for
discharged. discharging, the next friend.
The major (who wa minor before) a will have to And suit will be continued in the Name of Minor.
refund all expenses & loss sustained in
connection with the suit to the Defendant.
SUIT AGAINST A MINOR
5) If a suit is to be started against a minor, a permission from the court will have to be taken.
6) After analysing the case, the court can permit for a suit against a minor.
7) The court on its own or on an application made by a plaintiff, appoint a guardian for a minor.
8) The guardian appointed by a court cannot be removed by any party except in case of death,
insolvency or permanent incapacity and such guardian will also represent the minor in case appeals,
revisions, review and execution decrees.
However a court can remove him.
In the case of Ram Chandra VS Ram Singhit was held that a decree passed against a minor or a lunatic
without appointment of a guardian is a nullity and is void and not merely voidable
Que: Right to appeal is a natural right, comment.
Ans: Appeals are not specifically defined in CPC, 1908 however the application by a party in the superior
court to set aside the decree or revise the decree of subordinate court is referred as appeal. Right of appeal
is not a natural right but it is given by law. Parties by making a mutual agreement do not get the right to
appeal but this right is granted by law. It is a substantive right (right given by law) this right can also be
taken away by changes in law.
In the case of Gujarat Agro Industries Vs Municipal Corporation of Ahemdabad, it was decided
that, though the right of appeal is a statutory right and if the right of appeal is conditional then it can not be
said that it affects article 14 of Constitution of India.
SELF PRACTICE QUESTION

Que: A transport company has its head office at Kolkata and branch offices at Allahabad,
Lucknow and Puri. A dispute cropped up between Hassan and the transport companyin

respect of a transaction through Allahabad office. Hassan files a suit in respect ofthis
dispute against the company in a court at Puri. Is the court at Puri competent todecide this
case ? Give reasons.
Que: Write a short note on reference, review and revision?
Ans: REFERENCE, REVIEW &REVISION

1) Reference :
When a suit has been filed in any court of law & such court wants to obtain an opinion from the High
Court about the subject matter of the suit before exercising any jurisdiction & the high court may pass
the orders as it thinks appropriate in relation to the subject matter of the suit.
2) Review :
Right to review is available with the party who is dissatisfied by an order or decree passed by the court.
An Application of Review can be made in the same court which has passed a decree or order.
Application of Review can be made on following grounds :
g) Discovery of any new evidence, document, record, information related to the case.
h) Any mistake in the decree or judgment passed by the court.
i) Or on any other sufficient ground.
3) Revision :
g) Sec. 115 deals with Revision.
h) The High Court can call for records related to any case, which has been decided by any subordinate
Court & against which no appeal has been made. It is the discretionary power of the High Courts
i) The High Court will call for Records when the High Court believes that:
QUE:‗Explain provisions of summary procedure‘ including leave to defend under Civil

Procedure Code.

payment of money etc.
j) High Court,
k) City Civil Court or small civil court.
l) Any other court which is authorized by high court.
5) To commence the summary proceedings, the plaintiff has to proof the following points to the court.
j) The suit is filed under order of 37 of civil procedure code.
k) The suits relates to matter covered under order XXXVII of Civil Procedure Code (i.e. Promissory
l) The Relief claimed by the plaintiff is covered under XXXVII of Civil Procedure Code.
form.
7) The Court will send a summons to the defendant & the defendant will have to reply within 10 days
from the date of service of summons.
court (leave to defend).
defense.
g) Where the claim of plaintiff is accepted by the defendant & deposited into the court.

h) Where the court believes that the defense produced by the defendant is not much important.
On the hearing summary suit, the plaintiff shall be entitled to judgement if the defendant has not applied
for leave (permission) to defend or if such application was made and is refused or if the defendant is
permitted to defend but he fails to give the required security within the prescribed time or to carry out such
other precautions as may have been directed by the Court.
After decree in summary suit, the Court may, under special circumstances set-aside the decree, and if
necessary, stay or set aside execution, and may give leave (permission) to the defendant to appear and to
defend the suit. (Order 37 Rule 4)
Que: Whether in case of consent and compromise decree in between parties, principle of Res
Judicata shall apply ? Discuss.
Ans: A consent or compromise degree is not a decision by Court. It is an acceptance of something to which
the parties had agreed. The Court does not decide anything. The compromise decree merely has the seal of
the Court on the agreement of the parties. As such, the principle of res judicata does not generally apply to a
consent or compromise decree.
But when the court on the facts proved comes to a conclusion that the parties intended that the consent
decree should have the effect of deciding the question finally, the principle of res judicata may apply to it.
Section 11 of the Code of Civil Procedure, 1908 deals with the doctrine of Res Judicata. The doctrine
underlines the general principle that no one shall be twice vexed for the same cause, however, it does not
apply in case of Consent and Compromise between parties, but depends on the Court, subject to the facts of
the case.
Law of Torts

Ques: What do you mean by Malicious Prosecution?
Answer

If all the conditions are satisfied then the defendant of malicious prosecution may take action against the
plaintiff of malicious prosecution.
Ques: Write a short note on remedies in tort ?

Answer:
Judicial Remedies: Remedies from the court
Extra – Judicial Remedies: Remedies outside the court
The court can grant following remedies :
SELF DEFENSE : the aggrieved party may make a self defense and stop the other party from causing
physical harm.
TRESPASS : If some person trespasses over the property of some other person then the aggrieved person
may prevent the trespass in a peaceful manner.
The court can grant following remedies:

Compensation Injunction against defendant
DAMAGE, DISTRESS, FEASANT :- In case the cattle / chattel of any person has caused damaged to
any other person or his property. In this case such aggrieved person may retain such cattle, till the time the
STOPPING A NUISANCE : In case any person is causing nuisance, then the aggrieved person may
prevent such nuisance in the most peaceful manner.
Ques: Alok was running a school at a certain place. Bimal started another school near the
school of Alok. As result of this, most of the students of the school left his school and joined
Bimal‘s school. Due to competition, Alok had to reduce the fees by RS 40 per student per
quarter there by suffering huge monetary loss. Alok instituted a suit against Bimal in the
court for claiming compensation. Is the suit instituted by Alok maintainable?
Answer:
Facts:
Alok was running a school
Bimal started a school in neighbouring area due to which alok had to reduce the fees of his school on
account of competition.
Alok suffered losses due to Bimals School
Alok filed a case against Bmal.
Issue:
Is the case filed by Alok is maintainable
Provisions:
If any party intends to take action in tort it has to prove that a wrongful act was done and such wrongful act
resulted in legal damage..
As per the rule of demnum sine injuria, even if a person has suffered and injuiry or loss he cannot take any
action in tort as the damage on account of such injuiry are not legal damages.
In the case of Slucester grammer school, a shop / school was opened in neighbouring area due to which the
plaintiff suffered a loss, the court dismissed the case on the ground that, damages on account of loss in
business due to competition does not amount to legal damages.
Conclusion:
The suit filed by Alok is not maintainable.
Que: The managing clerk of a firm of solicitors, while acting in the ordinary course of
business committed fraud against a lady client by fraudulently inducing her to sign
documents transferring her property to him. The clerk did so without the knowledge of his
principal. Who is liable to the lady in this case ? Support your answer with reasons, citing
case law, if any.
Ans: Facts:
The managing clerk of the firm committed a fraud against lady by inducing her to sign documents without
knowledge of his principal in fraudulent manner.
Issue: Who is liable to the lady?
Provision:
As per law of torts, in case of vicarious liability the principal is liable vicariously for the acts of the agent. In
the case of Lloyad V/s. Grace Smith & Co. In this case the clerk of the firm accepted the money, and
ran away, the court decided that, the owner of the firm is responsible to the customers.
Conclusion
So in the given case study, the owner will be liable for the fraud committed by the Agent against the lady.
Que: The driver of a petrol lorry, while transferring petrol from the lorry to an underground
tank at a garage, struck a matchstick in order to light a cigarette and then threw it, still alight
on the floor. An explosion and a fire ensued. Who is liable for the damage so caused ? Decide
giving case law on this point.
Ans: Facts: The driver of a petrol lorry, while transferring petrol from the lorry to an underground tank at
a garage, struck a matchstick in order to light a cigarette and then threw it, still alight on the floor.
An explosion and a fire ensued.
Issue: Who is liable for the damage?
Provision: In case of strict liability the or inevitable accident the owner is liable for the torts committed by
the agent or the employee. In the case of Century Insurance Co. V/s. Northern Ireland Transport Board : In
this case, the owner of the container ordered the driver (contractor) to take the container in the
underground area where inflammable substances were kept. In that area the driver threw lit cigarette due
to which an accident occurred. The court held the owner responsible for the accident.
Conclusion: So in the given case study, the owner will be liable for the accident committed by dirver.
Que: A mill owner appointed a contractor to construct a reservoir on his land to provide
water for his mill. There were old disused mining shafts under the site of the reservoir,
which the contractor failed to observe because they were drilled with soil. There fore the
contractor did not block them. When water was filled in the reservoir, it burst through the
shafts and flooded the plaintiff‘s coal mine on the adjoining land. Is the mill owner liable to
compensate for loss or damage caused to the plaintiff? Give reason?
Answer:
Facts:
A contractor was appointed to construct a reservoir in the factory premises.
The contractor started the work, there were some unused mining shafts which were covered by soil, the
contractor could not notice such shafts.
When the water was filled in the reservoir, the minings shaft burst and the water was flooded in the
plaintiff‘s coal mines.
Issue:
Is the mill owner liable to compensate the plaintiff?
Provisions;
In general if the owner had taken care in appointing the contractor, the owner is not liable to the torts
committed by the contractor.
However in case of strict liability the owner is personally liable for the hurts committed by the independent
contractor.
The facts the case study relates to the famous case of Rylands V Fletches and in such case the owner was
held liable for accident that occurred due to the fault of contractor.
The owner will be liable to compensate the plaintiff.

Que: Mr Z went to polling booth with a valid voting id card for casting his vote in municipal
election, but the poling officer disallowed him to cast vote on the ground that his election id
card is not valid. Mr Z has filed a case against the polling officer, is the suit maintainable.
Ans: Facts: Mr Z went to polling booth with valid voting id card, but he was denied voting
right by the polling officer on the ground that he did not have valid voting id card.
Mr. Z has filed a case against the polling officer.
Issue: Is the suit maintainable?
Provision: the case study deals with, injuria sine damno, covered under the concept of torts, in
order to take an action in tort there has to be a wrongful act, which must have resulted in legal damage, in
case of injuria sine damnum, it is considered that, there is no injury to a party but still the party can take an
action in tort, as the damage is regarded as a legal damage.
Conclusion: So in the given case study, the suit filed by Mr. Z is maintainable.
Que: Mr X jokingly informed Mrs Z, that her husband has met with an accident and on
account of such accident his legs are broken, as a result of such joke Mrs Z suffered a violent
shock and was admitted in to hospital. After her recovery she intends to file a case against
Mr. X in torts. Can she file a case?
Ans: As per torts law a person may not be only affected due to any physical harm but may also be affected
by what he has seen or heard. Nervous shock is also a type of tort which happens due to what a person has
seen or heard.
In the Case of Downtown Vs Wilkinson, a person had jokingly informed a lady that her husband met with
an accident and his legs are broken, the lady got a violent shock and was admitted to the hospital, the Cort
awarded compensation to the lady.
In the given case study also Mr X will be liable to compensate Mrs. Z and Mrs Z is entitled to file a case in
tort against Mr. X on the ground of tort of nervous shock.
Que: Anil and Amit are two partners of a firm. Anil, while ordinarily dealing with another
firm, bribed that firm‘s clerk to divulge secret relating to the other firm where that clerk was
working. In this case, who shall be liable—whether both the Partners i.e. Anil and Amit or
only Anil ? Explain.
Ans: Tort committed by a partner in the ordinary course of the business of the firm, all the other partners
are liable therefore to the same extent as the guilty partner. The liability of the partners is joint and several.
In the case of Hamlyn vs.Houston & Co. (1903) 1 K.B. 81, one of the two partners bribed the plaintiff's clerk
and induced him to divulge secrets relating to his employer's business. It was held that both the partners
were liable for the tort committed by only one of them.
Que: The managing clerk of a firm of solicitors, while acting in the ordinary course of
business committed fraud, against a lady client by fraudulently inducing her to sign
documents transferring her property to him. He had done so without the knowledge of his
Principal. Explain whether the Principal will be liable ?
Ans: When a person interferes with the property or reputation of some other person. ―Qui facit per
aliumfacit per se‖
It means ―The person who acts through any other person is responsible for the acts of such person‖ When
an agent commits a tort in the
ordinary course of his duties as an agent, the principal is liable for the same. In Lloyd v. Grace, Smith & Co,
the managing clerk of a firm of solicitors, while acting in the ordinary course of business committed fraud,
against a lady client by fraudulently inducing her to sign documents transferring her property to him. He
had done so without the knowledge of his principal who was liable because the fraud was
committed in the course of employment.
The House of Lords in this case held that, by allowing the managing clerk to deal with clients, the firm had
given him ostensible authority to conduct certain types of business. Therefore the firm was liable for the
fraud. Normally, the tortfeasor is liable for his tort. But in some cases a person may be held liable for the

tort committed by another. A master is vicariously liable for the tort of his servant, principal for the tort of
his agent and partners for the tort of a partner. This is known as vicarious liability in tort.
INTERPRETATION OF STATUES
QUE:Explain the rule of ‗Ejusdem Generis‘ under the Interpretation of statute.
Ans: When law lists specific persons or things and refers to them in general, in such manner that the
specific word forms a class, then in this case the general word shall also include only those words which are
of the same class as established by specific words.
(jab kisi law main kuch specific words likhe hue hai aur fir ek general word se unhe describe kiya hai to
general word ke andar job hi words aayenge wo specific works ke class ke hi honge)
For example in any law it is stated that ―this provision applies to plant, machinery, and all heavy goods, now
in this case specific words are used such as plant, machinery and general word is also used as heavy goods
now in this case whenever we have to interpreat the word heavy goods we can not use the interpretation
that is not heavy good such as heavy goods can not include a mobile phone)
Specific words must belong to same kind of species.
In the case of JAGE RAM VS. STATE OF HARYANA: it was decided that the rule of Edjudem
Generis will apply if the following condition is satisfied:-


Ques. What are the presumption in the interpretation of statues when the intention of the
legislature is not clear?
Answer:-
INTERPRETATION:-
The true purpose of interpretation of any statue is to unlock the true legislative intent. There are many
principles that are given by various courts and legal experts for interpretation of statues. When the
intention of law makers is not clear than we use certain principles or rules of Interpretation with the help of
following presumptions:-
a) The law is never against state.
b) The law never punishes any person who does not have a guilt intention.
c) The word Mensrea is normally used for interpreting criminal laws.
d) Indian laws are not interpreted in the manner foreign laws are interpreted.
e) Principle of natural justice should be followed before passing any decision.
f) Law is never against public policy.
g) Law always suppress mischief.
h) Law always provides remedy to aggrieved party.
If all the presumption are applied carefully, we can come to the correct interpretation.
Ques:- Explain the mischief rule in interpretation of statues.

Answer:-
As per this rule, whenever interpretation of any provision is to be made , 4 things are to be considered:-
a) What was the common law before passing of the law by parliament.
b) What was thee mischief or defect for which the common law did not provide?
c) The remedy provided by the parliament.
d) The true reason of remedy provided by the parliament.

SMITH V/S HUGHES:- In this case, the court interpreted the meaning of word ―street‖ and decided that
the word street used in street offences act, 1959 includes a balcony too, as per the principles laid down in
Haydon‘s or mischief rule.
In the case of UMERAJ SINGH V/S RAJ SINGH:- the court decided that the interpretation must be
made in the manner which suppress the mischief and advances a remedy. However, this does not mean that
natural and ordinary meaning is to be ignored.
In the SODRA DEVI‘S case , the supreme court decided that the rule in Haydon‘s case applies when the
word in ―question‖ re ambiguous and capable of more than one meaning.
Ques:- Rule of Ejusden Generis is merely a rule of construction to aid the courts to find out
the true intention of the legislative‖. Explain.
Answer:-
Normally, every rule of interpretation is used to know and understand the correct intention of law makers.
However, the rule of Ejusdem Generis is more concerned with the interpretation of general word that
follows specific words, in any law.
According to the rule of EDJUSDEM GENERIS, The interpretation of general word‘s meaning and scope
cannot go beyond the class established by specific words.
In the case of JAGE RAM V/S STATE OF HARYANA, It was decided that the rule of Edjusdem Generis
applies when:-
a) Specific words are used in law.
b) General word follows the specific word.
c) General word suggests many meaning.
So, By the above discussion, we can conclude that the rule of Edjusdem Gennis is not only used to
understand the intention of law makers, but it is mere used to interpret the general words used in law.
Ques:- Briefly mention internal and external aids of interpretation of statues.

Answer:
Internal aids to interpretation:-
Internal aids means the remedy to interpret the law given by the law itself.
Following are the internal aids to interpretation:-
1. Title of the law:-
The long title of the law suggest the meaning and purpose of law.
2. Preamble:-
Preamble is the part of law and suggests the intention of law makers, if the provisions of law are
ambiguous, preamble can be used for interpretation.
3. Heading and title of a section or group of sections:-

Can be used for interpretation but cannot extend or limit the scope of the section.
4. Marginal notes:-
The notes that are attached to nay section supports the section and can be used for interpretation.
5. Interpretation clauses:-
It contains the definition of the words that are frequently used in law, can be used for interpretation.
6. Proviso:-
In the words of Hidaytullaj, proviso are used to qualify or to provide exception to a provision.
7. Illustration:-
These are the practical examples given to explain a particular provision.
8. Schedules:-
Schedules are the part of law and attached to the law and covers the details that are not given in law.
External aids to interpretation:-

These are the remedies to interpretation outside the law.
1. Parliamentary history:-
In India, courts use the discussions made in the parliament to know the true intention of law makers.
2. Reports of the committee:-

The report of the committee on basis of which law was passed or the reports of other committees related
law may be used for interpretation.
3. Reference to other statues:-

Pari Materia laws i.e. laws that have a same object, may be used for interpretation.
4. Dictionary:-
In order to know the general meaning of word the dictionary may be referred.
5. Use of foreign decisions:-

The decisions passed by foreign courts may be referred but the language used in Indian law shall be
given first priority.
Question and Answers!
Ques:-―Hydon‘s rule is not always operative in interpretation of statues‖. Explain.

Answer:-
Hydon‘s rule is applied when the below mentioned 4 conditions exists:-
1. What was the common law before passing of the law by parliament.
2. What was the mischief or defect for which common law did not provide.
3. The remedy provided by the parliament.
4. The true reason of the remedy provided by the parliament.
As per heylon‘s rule, the interpretation should be made ―which supresses the mischief and advances
remedy‖.
The Heydon‘s rule is not always operative due to the following reasons:-
1. This rule is used to interprete historical laws.
2. The above 4 conditions are not always satisfied.
3. This rule is to be used when one word used in law suggests more than one meaning.
Ques: Write a short note on: Mischief rule or heyden‘s rule

Answer:
As per this rule, whenever interpretation of any provision is to be made , 4 things are to be considered:-
a. What was the common law before passing of the law by parliament.
b. What was thee mischief or defect for which the common law did not provide?
c. The remedy provided by the parliament.
d. The true reason of remedy provided by the parliament.
made in the manner which supress the mischief and advances a remedy. However, this does not mean that
Ques: Write a short Note on Rule of reasonable construction i.e. ut res. Magis valeat quom
pareat ?
Answer:
It may rather become operative than null.
Normally the words are interpreted in ordinary popular dictionary or grammatical meaning. However
exclusive reliance on the natural, popular dictionary meaning may not give a true interpretation all the time
. So as per the rule of reasonable construction, we must also apply our common sense, also consider the
intention of law makers to make a correct interpretation.
In the case of TIRATH SINGH VS. BACHITTAR SINGH, It was decided that the natural or ordinary
meaning of a statute (law) provides an inconvenience or absurdity or hardship of justice, an interpretation
can be made which modifies the meaning of words or even a sentence.
In the case of GITHA HARIHARAN, the supreme court interpreted the word ‗after‘ in hindu minority
and guardianship act, when provisions of the act stated that ―the Right of mother is to be guardian is after
father ‗ . The court said if the mother is given a right after father, it will violate the constitution of India
(right of equality) so word after should be interpreted as equal.
(1) Normally the words are interpreted in the ordinary, popular, dictionary or grammatical meaning.
(2) Exclusive Reliance on the dictionary, popular, nature, grammatical meaning may not give true
interpretation at every time, so we must also apply our common sense & should also consider the
subject matter & also the intention of law makers, before any interpretation.
(3) Reasonable construction = Dictionary meaning + common sense.
Case law: Tirath Singh V/s. Bachitter Singh:
In this case it was decided that, during interpretation any word in law, a sensible meanings must be given to
the statutes. If a sensible meaning is not given to the statutes & complete reliance is given on the dictionary
meaning, the purpose of law may be destroyed.
Ques: Write a note on rule of harmonious construction : (compromising interpretation) ?

Answer: According to this rule, one provision of law should be interpreted in harmony with the other
provision of law, where there is dead of clash between the provisions of same law, the court should give
interpretation which should avoid clashes between section and gives the best possible meaning.
If the interpretation makes one of the provisions dead, it is not a harmonious construction.
In the case RAMKRISHNA: Sec 33(2) of people‘s representation act , stated that the government servant
may nominate candidate for election. However 123(8) of People‘s Representation Act , stated that the
government servant can‘t assist the candidate for election except by voting.
The court decided that the government servant can assist the candidate for election by voting and may also
nominate him.
In DADI JAGONATHAN‘S CASE:- It was decided that-: the court must start with the presumption that
the legislature did not make any mistake. The court must interpret or carry out the obvious intention of
law. The court should not make any addition or deletion in law.
Ques: Write a note on Rule of Ejusdem Generis?

Answer:
When law lists specific persons or things and refers to them in general, in such manner that the specific
word forms a class, the general word i.e. used to describe word shall include only those words which are of
the same class as a specific word.
In the case of JAGE RAM VS. STATE OF HARYANA: it was decided that the rule of Edjudem Generis
will apply if the following condition is satisfied:-
Ques: What is the meaning of Expressio unis exclusio alterius?

Answer:
Expressio unis exclusio alterius means express mention of one thing implies exclusion of other. As per
this rule, whenever we get a better interpretation of any word, we must ignore the previous meaning of the
word and adopt the new meaning.
Ex:- If we get a better meaning of the word by applying the rule of reasonable construction, then we must
consider the meaning suggested by reasonable construction and should leave the meaning suggested by
literal construction.
In the case of PARBHANI CO-OPERATIVE TRANSPORT SOCIETY VS. REGIONAL

TRANSPORT AUTHORITY:- It was decided that this rule doesn‘t apply when language of law is very
clear.
Ques: What is the meaning of Contemporanea Expositio Est Optima Et Fortissimo In Lege?
Answer:

As per this principal ―Conemporanus exposition is best and strongest in law‖. When the word used in law
have been changed in course of time, interpretation of the word shall be made as per it‘s meaning
represents the true intention of law makers.
STATE OF MADHYA PRADESH VS. G.S. DALL AND FLOWER MILLS:-
In this case the court decided that the state can‘t interpret any law in order to widen it‘s power.
R.S. NAYAK VS. A.R. AUNTULEY:-
In this case the court interpreted sec 121 of IPC 1860 and said that MLA‘s not public servant as, when IPC
was enacted MLA were not included in the definition of public servant.
However, if any wrong meaning is attach to any word , the court can give the correct interpretation if new
interpretation doesn‘t affect any title to the property or any transaction already entered.
Ques: What is the meaning of Noscitur A Sociis ?

Answer:
This rule means ― known by it‘s associates‖ . As per this rule meaning of any word in a law should known by
it‘s accompanying words or preceding or succeeding words.
When 2 or more words have a similar meaning, they can be coupled together in cognate sense.
In the case of FOSTER VS. DIPHWYS CASSON, a law stated that explosives products shall be carried
in case or canister . However, the defendant used a cloth bag. The court had to decide whether cloth bag
comes into definition of case or canister . By applying the principle of Noscitur a sociis, the court decided
that the word ―case or canister‖ to show the strength in the terms of carrying the explosive , the cloth bag
can‘t come under the definition of case or canister.
This rule cannot apply:-
a. When it causes confusion.
b. When different circumstances exist.
c. When the words are used in different content.
d. A sufficient reason can be given for different of proceeding and succeeding words.
Ques: What are Marginal notes?

Answer:
The headings or the notes that are put at one side of section are called as marginal notes. These heading
decides the effect of the sections. In past marginal notes , consider as source of interpretation, but now, by
majority of views , the marginal notes cannot be considered as source of interpretation.
In the case of SHRIKANT PADAMRAJE R. KADAMBANDE VS. CIT:- The court decided that
marginal cases cannot control the meaning of section , when they are clear. However, it must be noted
that they are the part of law, ant the key pointer to the intention of law maker.
In the case of BANGAL IMMUNITY CO. LTD:-
It was decided that marginal notes attached to article of constitution are part of constitution and can be
used for interpretation for article of constitution.
Ques: What are Illustrations or explanations ?

Answer:
Illustrations are the examples given in the law itself , in order to explain the provisions of any law.
Illustrations are the part of the law and they explain the intention of aw. It explains the meaning of a
Illustration cannot curtail or expand the scope of the section. If there is any conflict between the illustration
and section, the section shall prevail.
Ques: What do you mean by SCHEDULES ?

Answer:
Laws are basically divided In section and schedules. Schedules are attached to a law. They are part of law to
which they are attached. They contain the details , which cannot be included in sections, schedules may go
beyond sections.
If there is a conflict between schedule and the law, the law has upper head.
In the case of RAMCHAND VS. SALE TAX OFFICER :- It was decided that the language of schedule
in order to be clear must contain the heading of section, to which it relates.
Ques: While interpreting what presumptions are to be kept in mind?

Answer:
a) The law is never against state.
b) The law never punishes a person who does not have a guilt intension.
c) The word Mensrea is normally used for interpreting the criminal laws.
d) Indian laws are not interpreted in the manner foreign laws are interpreted.
e) Principle of natural justice shall be followed before passing any decision .
f) Law is never against public policy.
g) Law always supress mischief.
h) Law always provide remedy to aggrieved party.
Ques: What are the interpretations of statutes when the intention of the legislature is not
clear?
Answer:
The true purpose of interpretation any statue is to unlock the true legislative intent. There are many
principals that are given by various courts and legal experts for interpretation of statutes when the intention
of law maker is not clear then we use the principals or rules of interpretation with the help of following
presumptions:
1. The law is never against state
2. The law never punishes a person who does not have a guilt intention.
3. The word mens rea is normally used for interpreting the criminal laws.
4. Indian laws are not interpreted in the manner Foreign laws are interpreted.
5. Principal of natural justice, shall be followed before passing any decision.
6. Law is never against public policy.
7. Law always supresses mischief.
8. Law always provide remedy to aggrieved party.
Ques: Explain the mischief rules in interpretation of Statutes?

Answer:
As per this rule, whenever interpretation of any provision is to be made, 4 things are to be considered:-
a. What was the common law before passing of the law by parliament.
b. What was thee mischief or defect for which the common law did not provide?
c. The remedy provided by the parliament.
d. The true reason of remedy provided by the parliament.
made in the manner which supress the mischief and advances a remedy. However, this does not mean that
Ques: Heydon‘s rule is not always operative in interpretation of statutes.

Answer:
Heydon‘s rule is applied when the below mentioned 4 conditions exists:-
1. What was the common law for passing of the law by parliament.
2. What was the mischief and defect for which the common law did not provide.
3. The remedy provided by parliament.
4. The true reason of remedy provided by the parliament.
As per Heydon‘s rule the interpretation should made which supresses the mischief and advances remedy
The Heydon‘s rule is not always operative due to following reasons:-
1. The rule is used to interpret historical laws.
2. The above 4 conditions are not always satisfied.
3. This rule is to be used when one word used in law suggests more than one meaning.
Que: Discuss the importance of ‗Illustrations‘ for interpretation of statutes

Ans: Illustrations are the examples given in the law itself, in order to explain the provisions of any law.
Illustrations are the part of the law and they explain the intention of law. It explains the meaning of a
Illustration cannot curtail or expand the scope of the section. If there is any conflict between the illustration
and section, the section shall prevail.
Mahesh Chandra Sharma v. Raj Kumari Sharma
It was held that illustrations are parts of the Section and help to explain the principles of the section.
SELF PRACTICE QUESTIONS

1. Rule of harmonious Construction is to be always used for interpretation, Comment.
2. Mr. Z states that he will use Rule of literal construction for every interpretation as it is the best rule,
Comment.
3. The Indian Courts disregard foreign decisions, at the time of interpretation of statues, Comment.
4. Preambles are not a remedy to Interpretation.
5. Marginal notes are not considered as remedy for interpretation.
6. Strict Interpretation provides strict punishments. Comment.

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CS DUSHYANT JAIN CA CMA SOPAN R. GAIKAR

CS AKSHAY BAHIRWADE CS VINITA VAID CS RAHIM SHAIKH

"To Be The Best

He Founded I Can Academy, Pune along with CA CMA

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ABOUT CS DUSHYANT JAIN

 Founder of ICan Academy

 Graduate in commerce from Pune University.

 He pursued LLB from ILS Law College

 He is also a motivational speaker.

 He has worked in companies like RIL, NSDL, Prakash

 He has 10 years teaching experience and has taught over

 Amongst students he is popular as La actwguru.

CS CS and Only CS -1-

So we shall refer to some definitions and discuss them.

1) Natural School: Most of the definitions of law Were given by Romans

3) Historical Definition of Law :

4) Sociological definition of law :

KAHTA HAI PAUND,

5) Realist Definition of Law :

Law is the vehicle of social change and an instrument of social justice.

SOURCES OF INDIAN LAW

Laws are made effective:

Convention cannot alter the general law of the land.

Essentials of valid customs

CS CS and Only CS -5-

Features of high court

Difference Between Obiter Dicta and Ratio Decidendi

Legislation is either supreme or subordinate (delegated) (as per Salmod).

Kinds of Subordinate Legislations:

CS CS and Only CS -8-

ii. Principles of equity

iii. Law merchant

iv. Statute law

SOURCES OF MERCANTILE AND COMMERCIAL LAW

Law can be classified into :

There are two aspects of law :

Jermy Benthan used jurisprudence in 2 senses:

As per Prof. Julius Stone jurisprudence is ―Lawyers Extraversion‖

Prof. H L A Hart gave meanings relating to positivism, as follows :

THON AUSTIN also gave meaning of positivism.

He was a supporter of sociological jurisprudence.

CS CS and Only CS -11-

Thon William Salmond

Kelson described law as normative science as distinguished from natural sciences.

Criticism of Kelsen’s Pure Theory:

CS CS and Only CS -13-