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CS Executive Guideline Answers for JURISPRUDENCE, INTERPRETATION & GENERAL LAWS

CS Executive Guideline Answers for JURISPRUDENCE, INTERPRETATION & GENERAL LAWS

CS Executive Guideline Answers: This excellent blog gives you complete knowledge, improve your skills in preparing and answering for JURISPRUDENCE, INTERPRETATION & GENERAL LAWS in CS Executive.

This blog contains model answers for JURISPRUDENCE, INTERPRETATION & GENERAL LAWS given by expert faculty of CS Executive.

We hope that these CS Executive guideline answers will assist the students in preparing for the Institute’s examinations.

CS Executive guideline answers

CS Executive guideline answers-JIGL

CS Executive Guideline Answers for JURISPRUDENCE, INTERPRETATION & GENERAL LAWS

Question 1

1(a) Discuss the ‘‘Doctrine of Stare Decisis’’, under the sources of law

Answer 1(a): The doctrine of stare decisis means adherence to the past decision and do not unsettle things which are established. It is a useful doctrine intended to bring about certainty and uniformity in the law. Under the stare decisis doctrine, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. In simple words, the principle means that like cases should be decided alike. This doctrine is based on public policy. Although doctrine should be strictly adhered to by the Courts, it is not universally applicable. The doctrine should not be regarded as a rigid and inevitable doctrine which must be applied at the cost of justice.

 

1(b) Rajasthan Legislature passed a law restricting the use of sound 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.

Answer 1(b): The Rule of Pith and Substance means that where a law in reality and substance falls within an item on which the legislature which enacted that law is competent to legislate, then such law shall not become invalid merely because it incidentally touches a matter outside the competence of legislature.

Acting on Entry 6 of List II of the Constitution of India which reads — Public Health and Sanitation, Rajasthan Legislature passed a law restricting the use of sound amplifiers. The law was challenged on the Schedule VII, entry 31 of List I of the Constitution of India deals with “Post and telegraphs, telephones, wireless broadcasting and other like forms of communication, and, therefore, the State Legislature was not competent to pass it. The Supreme Court rejected this argument on the ground that the object of the law was to prohibit unnecessary noise affecting the health of public and not to make a law on broadcasting, etc. Therefore, the pith and substance of the law was – public health and not – broadcasting (G. Chawla v. State of Rajasthan, AIR 1959 SC 544).

 

1(c) Describe ‘‘Arbitration Agreement’’ specified under Section 7 of the Arbitration and Conciliation Act,1996

Answer 1(c): According to Section 2(1) (b) of the Arbitration and Conciliation Act, 1996, arbitration agreement means an agreement referred to in Section 7 of the Act. Under Section 7, the Arbitration agreement has been defined to mean an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

  • An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate
  • An arbitration agreement shall be in
  • An arbitration agreement is in writing if it is contained in-
    • a document signed by the parties;
    • an exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement; or
    • an exchange of statements of claim and defense in which the existence of the agreement is alleged by one party and not denied by the other.
  • The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.

 

1(d) Describe the ‘‘Rule of Reasonable Construction’’ under the Interpretation of Statutes. (5 marks each)

Answer 1(d): According to Rule of Reasonable Construction the words of a statute must be construed ut res magis valeat quam pereat, so as to give a sensible meaning to them. A provision of law cannot be so interpreted as to divorce it entirely from common sense; every word or expression used in an Act should receive a natural and fair meaning.

It is the duty of a Court in constructing a statute to give effect to the intention of the legislature. If, therefore, giving of literal meaning to a word used by the draftsman particularly in penal statute would defeat the object of the legislature, which is to suppress a mischief, the Court can depart from the dictionary meaning which will advance the remedy and suppress the mischief.

It is only when the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence (Tirath Singh v. Bachittar Singh, A.I.R. 1955 S.C. 830).

Courts can depart from dictionary meaning of a word and give it a meaning which will advance the remedy and suppress the mischief provided the Court  does not  have  to conjecture or surmise. A construction will be adopted in accordance with the policy and object of the statute (Kanwar Singh v. Delhi Administration, AIR 1965 S.C. 871).

 

Question 2

2(a) Explain the role of ‘Preamble’ as internal aid in interpretation of Though the preamble cannot be used to defect the enacting clause of a statute, it has been treated to be a key for the interpretation of the statute. Examine.

Answer 2(a): The true place of a preamble in a statute was at one time, the subject of conflicting decisions. In Mills v. Wilkins, (1794) 6 Mad. 62, Lord Hold said: “the preamble of a statute is not part thereof, but contains generally the motives or inducement thereof”. On the other hand, it was said that “the preamble is to be considered, for it is the key to open the meaning of the makers of the Act, and the mischief it was intended to remedy”.

The modern rule lies between these two extremes and is that where the enacting part is explicit and unambiguous the preamble cannot be resorted to, control, qualify or restrict it, but where the enacting part is ambiguous, the preamble can be referred to explain and elucidate it [Raj Mal v. Harnam Singh, (1928) 9 Lah. 260].

In Powell v. Kempton Park Race Course Co., (1899) AC 143, 157, Lord Halsbury said: “Two propositions are quite clear — One that a preamble may afford useful light as to what a statute intends to reach and another that, if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment”. Allahabad High Court has held in Kashi Prasad v. State, AIR 1967 All. 173, that even though the preamble cannot be used to defeat the enacting clauses of a statute, it has been treated to be a key for the interpretation of the statute.

Supreme Court in Kamalpura Kochunni v. State of Madras, AIR 1960 SC 1080, pointed out that the preamble may be legitimately consulted in case any ambiguity arises in the construction of an Act and it may be useful to fix the meaning of words used so as to keep the effect of the statute within its real scope.

 

2(b) Enumerate any four categories of cases in which a police officer may arrest a person without an order from magistrate and without a warrant under section 41 of Cr.P.C.,

Answer 2(b): Section 41 of Criminal Procedure Code, 1973 provides that any police officer may without an order from a Magistrate and without a warrant, arrest any person:

  • Who commits, in the presence of a police office, a cognizable offence
  • against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :-
    • the police has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
    • the police officer is satisfied that such arrest is necessary –
      • to prevent such person from committing any further offence; or
      • for proper investigation of the offence; or
      • to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
      • to prevent such person from making 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 the police officer.
      • as unless such person is arrested, his presence in the Court whenever required cannot be ensured and the police officer shall record while making such arrest, his reason in writing;
  •  against whom credible information has been received that he has committed a cognisable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;
  • who has been proclaimed as an offender either under this Code or by order of the State Government.
  • In whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
  • who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
  • who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
  • who has been concerned in, or against whom reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
  • who, being a released convict, commits a breach of any rule, made under (section 356(5); or
  • for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

 

2(c) 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 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.

Answer 2(c): The Supreme Court in the case of Ramchandran v. State, AIR 2010 SC 1922, has held that to constitute an offence of forgery document must be made with dishonest or fraudulent intention. A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. The Supreme Court in the case of Parminder Kaur v. State of UP, has held that mere alteration  of  document  does  not  make  it  a  forged document. Alteration must be made for some gain or for some objective.

Similarly, in the case of Balbir Kaur v. State of Punjab, 2011 CrLJ 1546 (P&H), the allegation against the accused was that she furnished a certificate to get employment as ETT teacher which was found to be bogus and forged in as much as school was not recognized for period given in certificate. However the certificate did not anywhere say that school was recognized. It was held that merely indicating teaching experience of the accused, per-se, cannot be said to indicate wrong facts. So the direction which was issued for prosecution is liable to be quashed.

In view of the above, the accused is not guilty of any offence.

 

2(d) Explain the rights of a party to appear before the National Company Law (4 marks each)

Answer 2(d): Rights of a party to appear before the National Company Law Tribunal are as under:

  • Every party may appear before a Tribunal in person or through an authorized representative, duly authorized in writing in this
  • The authorized representative shall make an appearance through the filing of Vakalatnama or Memorandum of Appearance in specified Form representing the respective parties to the proceedings.
  • The Central Government, the Regional Director or the Registrar of Companies or Official Liquidator may authorize an officer or an Advocate to represent in the proceedings before the
  • The officer authorized by the Central Government or the Regional Director or the Registrar of Companies or the Official Liquidator shall be an officer not below the rank of Junior Time Scale or company

OR (Alternate question to Q. No. 2)

Question 2A

2A(i) Briefly explain the ‘Purposive Rule of Interpretation’ under the General Clauses Act, (4 marks)

Answer 2A(i): In Halsbury‘s Laws of England, it is stated : “Parliament intends that an enactment shall remedy a particular mischief and it is therefore presumed that Parliament intends that the court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment corresponds to its legal meaning, should find a construction which applies the remedy provided by it in such a way as to suppress that mischief.”

The doctrine originates in Heydon‘s case where the Barons of the Exchequer resolved that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:

  • what was the common law before the making of the Act;
  • what was the mischief and defect for which the common law did not provide;
  • what remedy Parliament has resolved and appointed to cure the disease of the commonwealth; and
  • the true reason of the remedy and the office of all the judges is always to make such construction as shall –
    • suppress the mischief and advance the remedy; and – suppress subtle inventions and evasions for the continuance of the mischief pro private- commode (for private benefit); and
    • add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico (for the public good).

 

2A(ii) Enumerate in short the exceptional circumstances of the application of natural justice under Administrative (4 marks)

Answer 2A(ii): Though the normal rule is that a person who is affected by administrative action is entitled to claim natural justice, that requirement may be excluded under certain exceptional circumstances as mentioned below:

  1. Statutory Exclusion : The principle of natural justice may be excluded by the statutory Where the statute expressly provides for the observance of the principles of natural justice, the provision is treated as mandatory and the authority is bound by it. Where the statute is silent as to the observance of the principle of natural justice, such silence is taken to imply the observance thereto.
  2. Emergency : In exceptional cases of urgency or emergency where prompt and preventive action is required the principles of natural justice need not be observed. However, the determination of the situation requiring the exclusion of the rules of natural justice by the administrative authorities is not final and the court may review such determination.
  1. Interim disciplinary action : The rules of natural justice are not attracted in the case of interim disciplinary
  2. Academic evaluation : Where a student is removed from an educational institution on the grounds of unsatisfactory academic performance, the requirement of pre-decisional hearing is
  3. Impracticability : Where the authority deals with a large number of person it is not practicable to give all of them opportunity of being heard and therefore in such condition the court does not insist on the observance of the rules of natural justice.

 

2A(iii) Discuss the provisions relating to persons under legal disability under the Limitation Act, (4 marks)

Answer 2A(iii): Section 6 of the Limitation Act, 1963 provides that where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified there for in the Schedule of the Act.

Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified.

Where the disability continues up to the death of that person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified.

Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.

Section 6 of the Act is an enabling section to enable persons under disability to exercise their legal rights within a certain time. Section 7 which deals with disability of one of several persons supplements Section 6, Section 8 deals with special exception controls sections 6 and 7 , which serves as an exception to Sections 6 and 7. The combined effect of Sections 6 and 8 is that where the prescribed period of limitation expires before the cessation of disability, for instance, before the attainment of majority, the minor will no doubt be entitled to a fresh period of limitation from the attainment of his majority subject to the condition that in no case the period extended by Section 6 shall by virtue of Section 8 exceeds three years from cessation of disability, i.e. attainment of majority.

 

2A(iv) Describe kinds of offences under which capital punishment may be awarded by Court under Indian Penal (4 marks)

Answer 2A(iv): 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:

  • Murder
  • Dacoity with
  • Waging War against the Government of
  • Abetting mutiny actually
  • Giving or fabricating false evidence upon which an innocent person suffers death
  • Abetment of a suicide by a minor or insane person;
  • Attempted murder by a life

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.

 

Question 3

3(a) What do you understand by ‘set off’ and ‘counter-claim’ under the Civil Procedure Code, 1908 ? What is the effect of set-off ?

Answer 3(a):

Set-off

Order VIII, Rule 6 of Civil Procedure Code, 1908 deals with set-off which is a reciprocal acquittal of debts between the plaintiff and defendant. It has the effect of extinguishing the plaintiff’s claim to the extent of the amount claimed by the defendant as a counter claim.

Under Order VIII , Rule 6 of Civil Procedure Code, 1908 where in a suit for the recovery of money the defendant claims to set off against the plaintiff?s demand any ascertained sum of money legally recoverable by him from the plaintiff not exceeding the pecuniary jurisdiction of the Court and where both parties fill the same character as in the plaintiff is suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.

Counter-claim

A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up by way of counterclaim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filling of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of claim for damages or not. Such counter-claim must be within the pecuniary jurisdiction of the Court. (Order VIII, Rule 6A).

Effect of Set-off

The written statement 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 lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

 

3(b) Describe in brief the cases in which a Search Warrant can be issued under Section 93 in the Criminal Procedure Code?

Answer 3(b): According to Section 93 of the Criminal Procedure Code, 1973, a search warrant can be issued only in the following cases:

  • Where the Court has reason to believe that a person summoned to produce any document or other thing, will not produce it
  • Where such document or other thing is not known to the Court to be in the possession of any person
  • Where a general inspection or search is However, a search warrant may be general or restricted in its scope as to any place or part thereof.

 

3(c) What is the extent of liability of instruments to stamp duty where several instruments are executed in a single transaction ? Explain with any one

Answer 3(c): Section 4 of 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 amount shall be chargeable with the duty prescribed for the conveyance, mortgage or settlement
  • Each of the other instrument shall be chargeable with a duty of one rupee (instead of the duty if any prescribed for the other instruments)

Illustrations

  • A executed a conveyance of immovable On the same deed his nephew (undivided in status) endorsed his consent to the sale, as such consent was considered to be necessary. It was held that the conveyance was the principal instrument. The consent was chargeable with only one rupee (ILR 13 Bom 281).
  • Subsequent to a sale of immovable property, two declarations were executed reciting that the sale was subject to an equitable mortgage created by the vendor. These declarations were held to be chargeable, together with the sale deed, as having completed the conveyance (Somaiya Organics Ltd. v. Chief Controlling Revenue Authority, AIR 1972 All 252).
  • 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 brotherA 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. They amounted to a settlement and Section 4 applied (Maharaj Someshar Dutt, ILR 37 All 264).
  • B conveyed the whole of his property to three persons who undertook to provide for him and to perform his By another document, the three donees agreed to provide for B. This was mentioned in the deed executed by A also. It was held that the two documents had to be construed as part of the same act; the first was liable to duty as a conveyance while the second was liable to a duty of Rupee 1 only (Dadoba v. Krishna, ILR 7 Bom. 34).
  • A company executed, first a deed of trust and mortgage stating that the company was to issue notes for raising loans secured by the sale deed. It was held as under:
    • The deed was principal or primary security (and not a collateral security). It was chargeable as mortgage under Article
    • The notes issued subsequently were debentures and not principal instruments (Madras Refinery v. Chief Controlling Revenue Authority, Madras, AIR 1977 SC 500).

 

3(d) Judicial review is the authority of Courts to declare void the acts of the legislature and executive, if they are found in violation of provisions of the Constitution. (4 marks each)

Answer 3(d): The biggest check over administrative action is the power of judicial review. Judicial review is the authority of Courts to declare void the acts of the legislature and executive, if they are found in violation of provisions of the Constitution. Judicial Review is the power of the highest Court of a jurisdiction to invalidate on Constitutional grounds, the acts of other Government agency within that jurisdiction.

The power of judicial review controls not only the legislative but also the executive or administrative act. The Court scrutinizes the executive act for determining the issue as to whether it is within the scope of authority or power conferred on the authority exercising the power. Where the act of executive or administration is found ultra-virus the Constitution or the relevant Act, it is declared as such and, therefore, void. The Courts attitude appears to be stiffer in respect of discretionary powers of the executive or administrative authorities. The Court is not against the vesting of discretionary power in the executive, but it expects that there would be proper guidelines for the exercise of power. The Court interferes when the uncontrolled and unguided discretion is vested in the executive or administrative authorities or the repository of the power abuses its discretion.

 

Question 4

4(a) Discuss briefly ‘‘Malicious Prosecution’’ and its essential elements under the law relating to Torts.

Answer 4(a): Malicious prosecution consists in instigating judicial proceedings (usually criminal) against another, maliciously and without reasonable and probable cause, which terminate in favour of that other and which results in damage to his reputation, personal freedom or property.

The following are the essential elements of this tort:

  • There must have been a prosecution of the plaintiff by the defendant
  • There must have been want of reasonable and probable cause for that prosecution
  • The defendant must have acted maliciously (i.e. with an improper motive and not to further the end of justice).
  • The plaintiff must have suffered damages as a result of the prosecution
  • The prosecution must have terminated in favour of the plaintiff.

 

4(b) Explain the special provisions as to Evidence relating to Electronic Record under the provisions of the Indian Evidence Act,

Answer 4(b): Section 65A of the Indian Evidence Act, 1872 provides that the contents of electronic records may be proved in accordance with the provisions of Section 65B.

As per Section 65B(1) of the Indian Evidence Act, 1872, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred  to  as  the computer output) shall be deemed to be also a document, if the conditions mentioned in this Section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. The conditions in respect of a computer output related above, have been stipulated under Section 65B (2) of the Evidence Act.

 

4(c)State at least four instruments which are exempted from the provisions of Section 17(1) of the Registration Act,

Answer 4(c): The registration of the non-testamentary documents mentioned under Section 17(1)(b) and (c) of the Registration Act, 1908 is subject to the exceptions provided in of Section 17(2). These are as follows:

  1. any composition deed, e., every deed the essence of which is composition; or
  2. any instrument relating to shares in Joint Stock Company; or
  3. any debentures issued by any such Company; or
  4. any endorsement upon or transfer of any debenture; or
  5. any document other than the documents specified under Section 17(IA) of the Act creating merely a right to obtain another document which will, when executed create, declare, assign, limit or extinguish any such right, title or interest; or
  6. any decree or order of a court; or
  7. any grant of immovable property by the Government; or
  8. any instrument of partition made by Revenue-officer; or
  9. any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
  10. any order granting loan made under the Agriculturists Loans Act, 1884 or instrument for securing the repayment of a loan made under that Act; or
  11. any order made under the Charitable Endowments Act, 1890 vesting any property in a treasurer of a charitable endowment or divesting any such Treasurer of any property; or
  12. any endorsement on a mortgage deed acknowledging the payment of the whole or any part of the mortgage money, and any other receipt for payment of money, due under a mortgage when the receipt does not purport to extinguish the mortgage; or
  13. any certificate of sale granted to the purchaser of any property sold by public auction by Civil or Revenue

 

4(d)Explain any four categories of ‘information’ which have been exempted from disclosure under the Right to Information Act, (4 marks each)

Answer 4(d): Categories of information which have been exempted from disclosure under the Right to Information Act, 2005. These are:

  1. Where disclosure prejudicially affects the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
  2. Information which has been expressly forbidden by any court or tribunal or the disclosure of which may constitute contempt of court;
  3. Where disclosure would cause a breach of privilege of Parliament or the State Legislature;
  4. Information including commercial confidence, trade secrets or intellectual property, where disclosure would harm competitive position of a third party, or available to a person in his fiduciary relationship, unless larger public interest so warrants;
  5. Information received in confidence from a foreign government;
  6. Information the disclosure of which endangers life or physical safety of any person or identifies confidential source of information or assistance;
  7. Information that would impede the process of investigation or apprehension  or prosecution of offenders;
  8. Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other

 

Question 5

5(a) 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

Answer 5(a): Information in cognizable cases and investigation of such cases.

According to Section 154 of the Criminal Procedure Code 1973, every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant. Every such information shall be signed by the person giving it and the substance thereof shall be entered in a book kept by such officer in such form as may be prescribed by the State Government in this behalf.

The above information given to a police officer and reduced to writing is known as First Information Report (FIR). The investigation of the case proceeds on this information only. Thus, the principal object of this Section is to set the criminal law in motion and to obtain information about the alleged criminal activities so as to punish the guilty.

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.

Any person aggrieved by a refusal on the part of an officer incharge of a police station to record the information may send the substance of such information in writing and by post to the Superintendent of Police concerned who if satisfied that such information discloses the commission of a cognizable offence shall either investigate the case himself or direct an investigationto be made by any police officer subordinate to him.

Information as to non-cognizable cases and investigation of such cases

As per Section 155 of the Criminal Procedure Code 1973, when information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and refer the informant to the Magistrate. The police officer is not authorised to investigate a non-cognizable case without the order  of Magistrate having power to try such cases, and on receiving the order, the police officer may exercise the same powers in respect of investigation as he may exercise in a cognizable case.

Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

In case of a cognizable offence the police officer may conduct investigations without the order of a Magistrate. Investigation includes all proceedings under the Code for the collection of evidence by the police officer or by any person who is authorised by the Magistrate in this behalf.

 

5(b) The Indian Penal Code, 1860 provides for general exceptions for a person accused of committing any offence under the code to plead in his Explain any eight exceptions. (8 marks each)

 

Answer 5(b): 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

 

Question 6

6(a) Describe the documents or transactions to which the Information Technology Act, 2000 shall not apply?

Answer 6(a): 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,
  2. A power-of-attorney as defined in section 1A of the Powers-of-Attorney Act,
  3. A trust as defined in section 3 of the Indian Trust Act,
  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
  5. Any contract for the sale or conveyance of immovable property or any interest in such

6(b) Under the circumstances and arbitral award may be set aside by the Court under the provisions of Arbitration and Conciliation Act, Explain any four?

Answer 6(b): According to Section 34(2) of the Arbitration and Conciliation Act, 1996, an arbitral award may be set aside by the Court only if the party making the application furnishes proof that-

  1. a party was under some incapacity, or
  2. the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
  3. the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
  4. the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
  5. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or

Further, the Court finds that the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or the Court finds that the arbitral award is in conflict with the public policy of India.

6(c) Name of the officers of the Company who can be held liable in case the Company has issued share warrant without proper stamp What shall be the penalty as prescribed under Sec. 62(2) of the Stamp Act.

Answer 6(c): 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.

6(d) 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 ? (4 marks each)

Answer 6(d): Where any Central legislation or any regulation enacted after the commencement of this Act repeals any General Clauses Act 1897 made or yet to be made, unless another purpose exists, the repeal shall not:

  • Revive anything not enforced or prevailed during the period at which repeal is effected or;
  • Affect the prior management of any legislation that is repealed or anything performed or undergone or;
  • Affect any claim, privilege, responsibility or debt obtained, ensued or sustained under any legislation so repealed or;
  • Affect any punishment, forfeiture or penalty sustained with regard to any offence committed as opposed to any legislation or
  • Affect any inquiry, litigation or remedy with regard to such claim, privilege, debt or responsibility and any such inquiry, litigation or remedy may be initiated, continued or initiated and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

OR (Alternate question to Q. No. 6)

Question 6A

6A(i) Anil and Amit are two partners of a 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. (4 marks)

Answer 6A(i): 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.

6A(ii) Under what circumstances the decision exercised by administrative authorities are treated as abuse of discretion ? Explain any (4 marks)

Answer 6A(ii): The decision exercised by administrative authorities are treated as abuse of discretion in the following circumstances:

  1. Mala fides : If the discretionary power is exercised by the  authority  with  bad faith or dishonest intention, the action is quashed by the court. Malafide exercise of discretionary power is always bad and taken as abuse of
  2. Irrelevant considerations : If a statute confers power for one purpose, its use for a different purpose is not regarded as a valid exercise of power and is likely to be quashed by the   If  the administrative  authority  takes  into account factors, circumstances or events wholly  irrelevant  or extraneous to the purpose mentioned in the statute, then the administrative action is vitiated.
  3. Leaving out relevant considerations : The administrative authority exercising the discretionary power is required to take into account all the relevant If it leaves out relevant consideration, its action will be invalid.
  4. Arbitrary orders : The order made should be based on facts and cogent reasoning and not on the whims and fancies of the adjudicatory
  5. Improper purpose : The discretionary power is required to be used for the purpose for which it has been given. If it is given for one purpose and used for another purpose it will amount to abuse of
  6. Colourable exercise of power : Where the discretionary power is exercised by the authority on which it has been conferred ostensibly for the purpose for which it has been given but in reality for some other purpose, it is taken as colourable exercise of the discretionary power and it is declared
  7. Non-compliance with procedural requirements and principles of  natural justice: If the procedural requirement laid down in the statute is mandatory and it is not complied, the exercise of power will be bad. Whether the procedural requirement is mandatory or directory is decided by the court. Principles of natural justice are also required to be
  8. Exceeding jurisdiction : The authority is required to exercise the power within the limits or the statute. Consequently, if the authority exceeds this limit, its action will be held to be ultra vires and, therefore, void.

6A(iii) Describe the constitution of Special Court established under Section 435 of the Companies Act, (4 marks)

Answer 6A(iii): 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 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
  • 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.

6A(iv) Write a short note on writ of ‘Quo Warranto’. (4 marks)

Answer 6A (iv): The writ of Quo Warranto enables enquiry into the legality of the claim which a person asserts, to an office or franchise and to oust him from such position if he is a usurper. The holder of the office has to show to the court under what authority he holds the office. It is issued when:

  • the office is public and of a substantive nature,
  • created by statute or by the Constitution itself, and
  • the respondent has asserted his claim to the office. It can be issued even though he has not assumed the charge of the

The fundamental basis of the proceeding of Quo Warranto is that the public has an interest to see that an unlawful claimant does not usurp a public office. It is a discretionary remedy which the court may grant or refuse.

 

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