CHAPTER 1

SOURCES OF LAW
Introduction
● The nature and meaning of law have been
described by various jurists. However, there is
no unanimity of opinion regarding the true
nature and meaning of law
● Law is not static. It keeps on changing
according to the development of human beings
and their thought processes
Definitions of Law
Natural School
● Justinian’s Digest defines Law as “the
standard of what is just and unjust
● Under this school of thought people
considered ‘Dharma’ as lawful act and
‘Adharma’ as unlawful act
Positivistic School or Positivistic Definition
● Positivistic definition mainly concentrates on 3
things i.e.
● Politically superior person (can be king, ruler,
minister any person who is ruling us) makes
rules
 ● Subject (i.e. we people are subordinate) should
follow the rules made by political superior
person
● If not followed it will be backed by
sanction(punishment)
Historical School or Historical Definition
● Historical definition says law means
something which is old (history) and followed
since ages like customs and rituals we follow
at home.
● Later comes the written law or our legislature
Sociological School or Sociological Definition
● Sociological definition says in order to call
some rules as law it should first concentrate on
providing atleast basic necessities to the
people who are living in that particular society,
with the resources available.
● Ultimately, it should be for the welfare of the
public. If it does not concentrate on providing
basic necessities to the poorer section, then
such law is not a law at all
Realist School or Realist Definition
● According to Holmes, “Law is a statement of
the circumstances in which public force will
be brought to bear upon through courts.”
 Main characteristics of law and a definition to
become universal, one must incorporate
following elements -
● Law pre-supposes a State
● The State makes or authorizes to make, or
recognizes or sanctions rules which are called
law
● For the rules to be effective, there are
sanctions behind them
● These rules (called laws) are made to serve
some purpose
Types of Laws
Mandatory laws A mandatory law calls for
affirmative act i.e., compulsorily
everyone must follow. Eg: -
Payment of taxes

Prohibitive Laws It requires negative conduct, as in

the case of law prohibiting the
carrying of concealed weapon

Permissive Laws It is one which neither requires nor

forbids action
SOURCES OF INDIAN LAW
It is mainly divided into 2 –
1.Principle Sources of Law
2.Secondary Sources of Law

Principle Sources of Law

Customs or Customary Law
● Custom is the most ancient of all the sources
of law and has held the most important place
in the past
● When the same thing was done again and
again in a particular way, it assumed the form
of custom.
● Customs have played an important role in
moulding the ancient Hindu Law
Classification of Customs

Requisites of a valid custom

● Immemorial or Antiquity; Certainty;
Reasonableness; Compulsory Observance;
Conformity with Law and Public Morality;
Unanimity of Opinion; Peaceable Enjoyment;
Consistency
Judicial Precedents
● “Precedent” means some set pattern guiding
the future conduct. In the judicial field, it
means the guidance or authority of past
decisions of the courts for future cases. Only
such decisions which lay down some new rule
or principle are called judicial precedents
 Kinds of Judicial Precedents

Important Doctrines related to Judicial

Decisions

Stare Decisis The doctrine of stare decisis means

“adhere to the decision and do not
unsettle things which are established”.
The principle means that like cases
should be decided alike. This rule is
based on public policy and expediency
Ratio Decidendi It is a Latin phrase which means “the
reason for the decision”. This doctrine
says understand the logic behind the
decision
Obiter Dicta Obiter Dicta means ‘said by the way’.
The expression is used especially, to
denote those judicial utterances in the
course of delivering a judgement
The judges are not bound to follow
them although they can take advantage
of them

Statutes and Legislations

● Legislation can be either Supreme or
Subordinate
● Supreme Legislation is that which proceeds
from the sovereign power in the State or which
derives its power directly from the
Constitution. It cannot be repealed, annulled or
controlled by any other legislative authority
● Subordinate Legislation is that which proceeds
from any authority other than the sovereign
power. It is dependent for its continued
existence and validity on some superior
authority
● Example of Supreme and Subordinate
Legislations –
 ● Companies Act, 2013 is a Supreme
Legislation. Whereas, circulars issued by
Ministry of Corporate Affairs (MCA) are
Subordinate Legislations

Personal Law
Personal law of Hindus or Hindu Law
● In the case of Hindus, their personal law is to
be found in:
● The Shruti which includes four Vedas.
● The ‘Smritis’ which are recollections handed
down by the Rishi’s or ancient teachings and
precepts of God, the commentaries written by
various ancient authors on these Smritis.

Mohammedan Law
● The personal law of Mohammedans is to be
found in–
● The holy Koran; Ijmas; Kiyas; Digests and
Commentaries
Secondary Source of Indian Law
Justice, Equity and Good Conscience
● The concept of “justice, equity and good
conscience” was introduced by Impey’s
Regulations of 1781
 ● In simple terms, this source says that a judge
while giving the judgment must behave in a
fair and impartial manner
Sources of English Law
Common Law
● Common Law is an unwritten law of England
which is common to the whole of the realm.
Law Merchant (Mercantile Law)
● The Law Merchant is the most important
source of the Mercantile Law.
● Law Merchant means those customs and
usages which are binding on traders in their
dealings with each other.
Principle of Equity
● Equity is a body of rules, the primary source
of which was neither custom nor written law,
but the imperative dictates of conscience and
which had been set forth and developed in the
Courts of Chancery
Statute Law
● “Statute law is that portion of law which is
derived from the legislation or enactment of
Parliament
Different Branches of Law
Constitution Law; Administrative Law; Criminal
Law; Civil Law; and Mercantile Law
Sources of Indian Mercantile Law
English Mercantile Law; Acts enacted by Indian
Legislature; Judicial Decisions; and Customs and
Trade Usage
Jurisprudence
● The word Jurisprudence is derived from the
word ‘juris’ meaning law and ‘prudence’
meaning knowledge.
● Jurisprudence is the study of the science of
law. The study of law in jurisprudence is not
about any particular statute or a rule but of law
in general, its concepts, its principles and the
pilosophies underpinning it
● Different jurists/ legal philosophers have used
the term in different ways
Different Schools of Jurisprudence
Analytical Jurisprudence
● It concentrates on abstract theory of law
Sociological Jurisprudence
● It highlights the limitations of pure science of
law and says that since the very purpose for
 the existence of law is to furnish an answer to
social problems
Teleological Jurisprudence
● It emphasizes that a mere collection of facts
concerning social life is of no avail
LEGAL THEORY
● Legal theory is conclusion drawn by different
jurists over a period of time Legal theory is a
field of intellectual enterprise within
jurisprudence that involves the development
and analysis of the foundations of law

JOHN AUSTIN
● Austin is known for the Command Theory of
law
● Austin differentiated law into 2 things ‘Law
Properly So Called’ and ‘Law Improperly So
Called’
● Three conditions to be satisfied in order to
consider a law as ‘Law properly so called’
o It is a command; It is given by sovereign
authority; and Sanction (Punishment)
Criticisms
● Social legislations that do not command the
people but confer rights and benefits upon
them
 ● 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
● Austin does not provide for judges made laws

ROSCOE POUND
● He introduced a concept called ‘Social
Engineering’
● The goal of this theory was to build such a
structure of society where the satisfaction of
maximum of wants was achieved with the
minimum of friction and waste. Such a society
according to Roscoe Pound would be an
‘efficient’ society
According to him, before bringing in any law
into force, the following three things must be
followed
● A recognition of certain interests (like desires
of people living in a society or a particular
country)- individual, public and social
● A definition of the limits within which such
interest will be legally recognized and given
effect to.
● Securing of those interests within the limits as
defined (Satisfying the desires of people with
the available resources)
According to Roscoe Pound, for determining
the scope and the subject matter of the legal
system, following five things are required to be
done:
● Preparation of an inventory of interests and
their classification.
● Selection of the interests which should be
legally recognized.
● Demarcation of the limits of securing the
interest so selected.
● Consideration of the means whereby laws
might secure the interests when these have
been acknowledged and delimited, and
● Evolution of the principles of valuation of
interests

Criticisms
● The theory does not provide any criteria for
the evaluation of interest
● His theory gives more importance to judiciary
in comparison to the legislature
● distinction between Public and Social interests
is doubtful and even the distinction between
Individual and Social Interest is of minor
significance
● The recognition of a new interest is a matter of
policy. The mere presence of a list of interests
 is, therefore, of limited assistance is giving rise
for a dispute

JOHN WILLIAM SALMOND

● Salmond claimed that the purpose of law was
the deliverance of justice to the people. He
said primary objective of any law should be
deliverance of justice to the people
● Salmond argued that the administration of
justice was the primary task of a state and the
laws were made to achieve that objective.
● Salmond further said that the administration of
justice is perfectly possible without laws
though such a system is not desirable
Criticisms
● Justice is the end and law are only a medium
to realize it does not always hold true because
there are a number of laws that can be called
‘unjust’.
● The pursuit of justice is not the only purpose
of law
● He did not consider international laws

HANS KELSON (PURE THEORY OF LAW)

● He was an Austrian philosopher and jurist who
is known for his ‘Pure Theory of Law’
 ● He called it ‘pure’ because a law should not
depend upon any other factors
● Kelsen called punishment or sanction as a
‘norm’
● Kelsen’s pure theory of law is based on
pyramidical structure of hierarchy of norms
which derive their validity from the basic
norm.
● Grundnorm or basic norm determines the
content and gives validity to other norms
derived from it.
● Under Kelsen’s pure theory, the Grundnorm
does not derive its validity from any other
norm and its validity must be presupposed. Eg:
Indian Constitution.
Criticisms
● It is difficult to trace ‘Grundnorm’ in every
legal system
● The Pure Theory also did not give the
timeframe for which the effectiveness should
hold for the requirement of validity to be
satisfied.
● International law does not sit well with
Kelsen’s Pure theory
JEREMY BENTHAM
● He claimed that nature has placed man under
the command of two sovereigns- pain and
pleasure
● The function of laws should be to bring about
the maximum happiness of each individual for
the happiness of each will result in the
happiness of all
Bentham said that every law may be considered
in eight different respects. They are as follows –
Source; Subjects; Objects; Extent; Aspects; Force;
Remedial appendage; and Expression
He said that a complete law would have the
features of integrity as well as unity
Criticisms
● Due to Bentham’s strait-jacketing of laws into
an imperative theory- all laws have to be either
command or permission
● Bentham did not give a fair treatment to
custom as a source of law
● Bentham’s theory did not allow for judge
made laws
● To judge an action according to the pleasure-
pain criterion is to judge it subjectively
● 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
 CHAPTER 2
INDIAN CONSTITUTION

Introduction
● The Constitution of India came into force on
January 26, 1950.4
● It is a comprehensive document containing
395 Articles (divided into 22 Parts) and 12
Schedules.
● The preamble declares India to be a Sovereign,
Socialist, Secular, and Democratic Republic
and secures to all its citizens Justice, Liberty,
Equality and Fraternity.
● Preamble is the heart and soul of our
constitution
Structure
● Constitution of India is basically federal but
with certain unitary features.
[KesavanandaBharati v. State of Kerala, AIR
1973 SC 1461] were of the view that the
federal
● The essential features of a Federal Polity or
System are –dual Government, distribution of
powers, supremacy of the Constitution,
independence of Judiciary, written
 Constitution, and a rigid procedure for the
amendment of the Constitution.

FUNDAMENTAL RIGHTS [Fundamental

Rights are envisaged in Part III of the
Constitution]
Definition of State
Under Article 12, unless the context otherwise
requires, “the State” includes –
● the Government and Parliament of India;
● the Government and Legislature of each of the
States; and
● all local or other authorities:
● within the territory of India; or
● under the control of the Government of India.

Justifiability of FRs – Article 13

● Existing Laws – Pre – constitutional laws are
disregarded or considered void to the extent to
which they are inconsistent with the FRs
● Future Laws – After the Constitution comes
into force the State shall not make any law
which are inconsistent with FRs
3 Important Doctrines

FUNDAMENTAL RIGHTS

RIGHT TO EQUALITY (Article 14 -18)

Article 14 - Equality Before the Law and Equal
Protection of Laws (All are treated equally, under
certain circumstances to give protection to the
under privileged, different people are treated
differently – like reservation for women and
children etc)
Test of valid classification
Intelligible Differentia & differentiation must
have rational nexus with the object to be
achieved
Article 15 - Prohibition of discrimination on
grounds of religion etc.
(No discrimination based on - RELIGION, RACE,
CASTE, SEX, PLACE OF BIRTH OR ANY OF
THEM)
Article 16 -Equality of opportunity in matters
of public employment
Article 17 –Abolition of Untouchability (It is
punishable offence whether practiced directly or
indirectly)
Article 18 –Abolition of Titles (British Govt used
to award titles like Sir, Raj Bahadur, Rai Saheb,
Knight, etc. These are abolished. However military
or academic achievement titles can be given to
recognise the merit and achievement)

RIGHT TO FREEDOM (Article 19 to 22)

Right to freedom of speech and expression
(Right to remain silent is also a right)
Freedom of assembly – (The next right is the
right of citizens to assemble peacefully and
without arms)
Freedom of association (The freedom of
association includes freedom to hold meeting and
to takeout processions without arms.)
Freedom of movement (Right to move freely
throughout the territory of India is another right
guaranteed under Article 19(1)(d)).
Freedom of residence (This Article guarantees to
a citizen the right to reside and settle in any part of
the territory of India.)
Freedom to trade and occupations (Article
19(1)(g) provides that all citizens shall have the
right to practice any profession, or to carry on any
occupation, trade or business.)
Exception: - To practice a profession like CA, CS
requisite qualification is mandatory

Protection in respect of conviction for offences

(Article 20 –22)
Article 20 guarantees to all persons –whether
citizens or non-citizens-three rights –

Article 21 - Protection of life and personal

liberty
Article 21 confers on every person the
fundamental right to life and personal liberty.
(good environment, education, water etc is right to
life. Personal liberty – applying for bail, not to be
handcuffed etc)
Article 21A – Right to Education
According to this, the State shall provide free and
compulsory education to all children of the age of
six to fourteen years in such manner as the State
may, by law, determine.

Article 22 – Protection against arrest and

detention
This section provides protection against arrest and
if any legislature does not provide for any of these
safeguards it shall be declared unconstitutional.
However, Article 22 does not apply uniformly to
all persons and makes a distinction between:
• alien enemies,
• person arrested or detained under preventive
detention law, and
• other persons.
A person who is arrested and detained must be
produced before the nearest magistrate within a
period of twenty-four hours of such arrest,
excluding the time of journey. And such a person
shall not be detained in custody beyond

Preventive Detention
Preventive detention means detention of a person
without trial.
No offence is proved nor any charge formulated
and yet a person is detained because he is likely to
commit an act prohibited by law

Safeguard
A person cannot be detained for more than 3
months without the permission of the Advisory
Board (constituted by persons who are or qualified
to be Judges of HC)

RIGHT AGAINST EXPLOITATION (Article

23 & 24)
Article 23 – Ban on human trafficking (selling
human beings like goods)
Article 24 – Prohibition of employment of
children below the age of 14

RIGHT TO FREEDOM OF RELIGION

(Article 25 – 28)
Article 25 gives to every person the:
•freedom of conscience, and
•the right freely to profess, practice and propagate
religion.
Article 26, it grants to every religious
denomination or any sect thereof the right –
•to establish and maintain institutions of religious
and charitable purposes;
•to manage its own affairs in matters of religion; to
own and acquire movable and immovable
property; and
•to administer such property in accordance with
law.
Article 27 says
No person can be compelled to pay any taxes, the
proceeds of which are specially appropriated in
payment of expenses for the promotion or
maintenance of any particular religion or religious
denomination
Article 28 prohibits religious instruction in
certain educational institutions and gives
freedom to a person to participate in such
religious instructions. The Article states that –
• No religious instruction can be provided in any
educational institution wholly maintained out
of State funds. However, this prohibition does
not extend to an educational institution which
is administered by the State but has been
established under any endowment or trust
which requires that religious instruction shall
be imparted in such institution.
• No person attending an educational institution
recognised by the State or receiving aid out of
State funds cannot be required:
 o to take part in any religious instruction
that may be imparted in such institution;
or
o to attend any religious worship that may
be conducted in such institution or any
premises attached thereto

CULTURAL AND EDUCATIONAL RIGHTS

[RIGHTS OF MINORITIES] (Article 29 –30)
Article 29 – Protection of minorities
Any section of the citizens residing in the territory
of Indian or any part has right to conserve their
language and script and no citizen can be denied
admission into any educational institution
maintained by the State or receiving aid out of
State funds on grounds only
Article 30 - Right of Minorities to establish and
administer educational institutions

RIGHT TO CONSTITUTIONAL REMEDIES

(Article 32 –35)

Article 32 - Remedies for enforcement of

Fundamental Rights
• Article 32 guarantees the enforcement of
Fundamental Rights.
 • It is a cardinal principle of jurisprudence that
where there is a right there is a remedy (ubi jus
ibi remedium) and if rights are given without
there being
• If any person’s Fundamental Right is affected,
he can directly take the matter to the Supreme
Court

Supreme Court is empowered to issue

directions or orders or writs (written
command) in the nature of
Habeas Corpus (to have a body)
• Under Articles 32 and 226 any person can
move for this writ to the Supreme Court and
High Court respectively.
• Habeas corpus is the writ which was
visualized as an effective means to provide a
quick remedy to a person who has lost his
personal liberty without any legal justification.

Mandamus (means command)

• Mandamus is an order from a superior court to
a lower court or tribunal or public authority to
perform an act, which falls within its duty.
Prohibition
• It is issued to prevent an inferior court or a
tribunal from exceeding its jurisdiction or
acting against the principles of natural justice
• It is issued during the pendency of proceedings
of a case
Certiorari (to be certified)
• The writ of certiorari can be issued by the
Supreme Court or any High Court for
quashing the order already passed by an
inferior court, tribunal or quasi-judicial
authority.
• It can be resorted to only after the order or
decision has been announced.

Writ of Quo Warranto (what is your authority)

• It is a writ issued with a view to restraining a
person from acting in a public office to which
he is not entitled.

Amendability of Indian Constitution

• Core constitutional values/ overarching
principles like secularism; egalitarian equality
etc. fall outside the amendatory power under
Article 368 of the Constitution and Parliament
cannot amend the constitution to abrogate
 these principles so as to rewrite the
constitution.
• The power to make changes to the basic
structure of the Constitution vests only in the
people sitting, as a nation, through its
representatives in a Constituent Assembly.

DIRECTIVE PRINCIPLES OF STATE

POLICY (DPSP)
Article 37 provides that the provisions
contained in this part
• Shall not be enforceable by any Court, but the
principles therein laid down are nevertheless
• Fundamental in the governance of the country
and it shall be the duty of the state to apply
these principles in making laws

How DPSPs are different from Fundamental

Rights?
• The Directives are not enforceable in the
courts and do not create any justiciable rights
in favour of individuals.
• The courts are not competent to compel the
Government to carry out any Directives
Conflict between DPSP and Fundamental
Rights
• The declarations made in Part IV of the
Constitution under the head ‘Directive
Principles of State Policy’ are in many cases
of a wider import than the declarations made
in Part III as ‘Fundamental Rights’.
• In the case State of Madras v. Champakam
Dorairajan, AIR 1951 S.C. 226, where the
validity of a Government order alleged to be
made to give effect to a Directive Principle
was challenged as being violative of a
Fundamental Right, the Supreme Court made
the observation that:
• “The Directive Principles of State Policy have
to conform to and run as subsidiary to the
chapter of Fundamental Rights.”
• The Supreme Court also pointed out that
looking at Directive Principles, we find as was
envisaged by the Constitution makers, that
they lay down the ideals to be observed by
every Government to bring about an economic
democracy in this country
• Hence it was decided that there must be
harmonious construction (give importance to
both)
Some of the important DPSPs are –
• Certain principles of policy to be followed by
the State. The State, particularly, must direct
its policy towards securing:
o that the citizens, men and women equally,
have the right to an adequate means of
livelihood;
o that the ownership and control of the
material resources of the
o community are so distributed as best to
subserve the common goods;
o that the operation of the economic systems
does not result in the concentration of
wealth and means of production to the
common detriment;
o equal pay for equal work for both men and
women;
o that the health and strength of workers and
children is not abused and citizens are not
forced by the economic necessity to enter
a vocation unsuited to their age or
strength;
• The State must take steps to organise the
Village Panchayats and enable them to
function as units of self-government
FUNDAMENTAL DUTIES (Article 51A)
• To abide by the constitution and respect its
ideals and institutions, the National Flag and
the National Anthem;
• To cherish and follow the noble ideals which
inspired our national struggle for freedom;
• To uphold and protect the sovereignty, unity
and integrity of India;
• To defend the country and render national
service when called upon to do so;
• To value and preserve the rich heritage of our
composite culture;

Ordinance making Powers

Of the President (Article 53 & 123)
• Article 123 of the Constitution provides that
the President shall have the power to legislate
by Ordinances at any time when it is not
possible to have a parliamentary enactment on
the subject, immediately. This is a special
feature of the Constitution of India.
• According to Article 13(3)(a) “Law” includes
an “Ordinance”. But an Ordinance shall be of
temporary duration.
• This power is to be exercised by the President
on the advice of his Council of Ministers.
Of the Governor (Article 213)
• The Governor possesses executive, legislation
and judicial powers as the Presidents except
that he has no diplomate or military powers
like the President
• This power is exercised under the head of
legislative powers.
• The Governor’s power to make Ordinances as
given under Article 213 is similar to the
Ordinance making power of the President and
have the force of an Act of the State
Legislature.

Legislative Power of Union and States

Two sets of Government
• The two levels of Government divide and
share the totality of governmental functions
and powers between themselves.
Territorial Distribution
• The Union Legislature, i.e., Parliament has the
power to make laws for the whole of the
territory of India or any part thereof, and the
State Legislatures have the power to make
laws for the whole or any part of the territory
of the respective States
Parliament
• From the territorial point of view, Parliament,
being supreme legislative body, may make
laws for the whole of India; or any part
thereof; and it can also make laws which may
have their application even beyond the
territory of India
State Legislature
• A State Legislature may make laws only for
the state concerned. It can also make laws
which may extend beyond the territory of that
State. But such law can be valid only on the
basis of “territorial nexus”.
• That is, if there is sufficient nexus or
connection between the State and the subject
matter of the law which falls beyond the
territory of the State, the law will be valid.
Legislative Powers of the Union and the States
with respect to Legislative Subjects
• List I, the Union Parliament has the exclusive
power to make laws. The State Legislature
• List II, the legislature of a State has exclusive
power to make laws. Therefore,
• With respect to the subjects enumerated in the
Concurrent List, i.e., List III, Parliament and
the State Legislatures both have powers to
make laws.
 • With respect to all those matters which are not
included in any of the three lists, Parliament
has the exclusive power to make laws. It is
called the residuary legislative power of
Parliament
Power of Parliament to make laws on State List
State legislatures have the exclusive powers to
make laws with respect to subjects in State List
i.e., List II. However, there are certain
exceptions as follows –
• In the National Interest (Article 249) -
o But such resolution shall remain in force
for a period not exceeding one year.
However, a fresh resolution can be passed
• During Emergency (Article 250)
• Breakdown of Constitutional Machinery in
a State (Article 356 and 357)
• On the request of two or more States
(Article 252)
• Legislation for enforcing international
agreements (Article 253)

Principles of Interpretation of Legislative Lists

Plenary Powers
• The first and foremost rule is that if legislative
power is granted with respect to a subject and
there are no limitations imposed on the power,
 then it is to be given the widest scope that its
words are capable of.
Harmonious Construction
• Different entries in the different lists are to be
interpreted in such a way that a conflict
between them is avoided and each of them is
given effect.
Pith and Substance Rule
• 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.
Colourable Legislation
• The Constitution does not allow any
transgression of power by any legislature,
either directly or indirectly.
Freedom of Trade, Commerce and Intercourse
(Articles 301 –307)
• This heading has been given to Part XIII of the
Constitution. This part originally consisted of
seven articles –Articles 301 to 307 –of which
one (Art. 306) has been repealed
Article 301
• The freedom of trade and commerce
guaranteed under Article 301 applies
throughout the territory of India; it is not only
to inter
Article 302
• Parliament may, by law, impose such
restrictions on the freedom of trade, commerce
and intercourse as may be required in the
public interest.
Article 303
• Parliament to make preference or
discrimination if it is required to do so for the
purpose of dealing with a situation arising
from scarcity of goods in any part of the
territory of India
Article 304
• The Legislature of a State may by law impose
such reasonable restrictions on the freedom of
trade, commerce or intercourse within the
State as may be required in the public interest.
(President assent is necessary)
Article 305
• The law which was already in force at the
commencement of the Constitution shall not
be affected by the provisions of Article 301
 except in so far as the President may, by order,
otherwise direct
Article 307
• The laws which create State monopoly in any
trade, etc. are saved from attack under Article
301, i.e., they are valid irrespective of the fact
that they directly impede or restrict the
freedom of trade and commerce.

The Judiciary

The Supreme Court (SC)

• The Supreme Court, which is the highest
Court in the country (both for matters of
ordinary law and for interpreting the
 Constitution) is an institution created by the
Constitution.
Jurisdiction of SC can be grouped into 4 as
follows –
• Original jurisdiction
• Writ jurisdiction
• Appellate jurisdiction and
• Advisory jurisdiction

High Courts (HC)

• The High Courts that function under the
Constitution were not created for the first time
by the Constitution. Some High Courts existed
before the Constitution, although some new
High Courts have been created after 1950.
• High Courts have writ jurisdiction to enforce
fundamental rights and for certain other
purposes.
• High Courts can also hear references made by
the Income Tax Appellate Tribunal under the
Income Tax Act and other tribunals.

Subordinate Courts
• There are various subordinate civil and
criminal courts (original and appellate),
functioning under ordinary law. Although their
nomenclature and powers have undergone
 change from time to time, the basic pattern
remains the same.
• These have been created, not under the
Constitution, but under laws of the competent
legislature

Delegated Legislation
• •The increasing complexity of modern
administration and the need for flexibility
capable of rapid readjustment to meet
changing circumstances have made it
necessary for the legislatures to delegate its
powers.
• The three relevant justifications for
delegated legislation are:
o the limits of the time of the legislature;
o the limits of the amplitude of the
legislature, not merely its lack of
competence but also its sheer inability to
act in many situations, where direction is
wanted; and
o the need of some weapon for coping with
situations created by emergency.
Organs of the State

Legislative Functions
Bill
● 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.
The Bills are classified as

HOW A BILL BECOMES AN ACT

A Bill undergoes three readings in each House

of Parliament.

● After a Bill has been passed by one House, it

is sent to the other House where it goes
through the same procedure.
 ● After a Bill has been passed by both Houses, it
is presented to the President for his assent.
● A Bill becomes an Act of Parliament after
being passed by both the Houses of Parliament
and assented to by the President.

Parliamentary Committees
 CHAPTER 3
INTERPRETATION OF STATUTES

Introduction
● A statute has been defined as “the will of the
legislature” and it means the Act (like Income
Tax Act,1961, Companies Act, 2013 etc)
enacted by the legislature
Need for Interpretation of Statutes
● According to Salmond, interpretation or
construction is the process by which the
Court’s seek to ascertain the meaning of the
legislature through the medium of the
authoritative forms in which it is expressed
Primary Rules

EXTERNAL AND INTERNAL AIDS IN

INTERPRETATION
Internal Aids - can be found within the Statute
itself
External Aids - Apart from the intrinsic aids, such
as preamble and purview of the Act, the Court can
consider resources outside the Act, called the
extrinsic aids, in interpreting and finding out the
purposes of the Act.
INTERNAL AIDS
External Aids

FOR YOUR REFERENCE

Different names for different primary rules of
interpretation
● Literal Interpretation / Literal Construction
● Rule of Reasonable Construction / Golden
Rule of Interpretation
● Rule of Beneficial Construction / Purposive
Construction / Mischief Rule / Heydon’s Rule
 CHAPTER 4
GENERAL CLAUSES ACT, 1897
Introduction
● It provides uniformity of expression in Central
Acts by giving definitions to many terms
which are in common use
● The General Clauses Act, 1897 is known as
“Law for all laws”

Key Definitions
"Act"
Is 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;

"Affidavit"
Shall include affirmation and declaration in the
case of persons by law allowed to affirm or declare
instead of swearing;

"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;

"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 the time
being specified in Part B of that Schedule and
"Part C State" shall mean 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;

"Person" shall include any company or

association or body of individuals, whether
incorporated or not;

Applicability
● Applies only to Acts framed by Central
Legislature and rules & regulations made
thereunder.
 General Rules of Construction
● Rule of Construction is a rule used for
interpreting legal instruments, especially
contracts and statutes

*rules except strict construction of penal studies

have been discussed in chapter 2
Other important provisions of the Act are as
follows –
Date of If the date is specifically not
Commencement of mentioned (like w.e.f. in GST or
the Act Income Tax) it shall be
implemented on the day that it
receives the assent of the President
Effect of Repeal The repeal shall not:
Renew anything not enforced the
period at which repeal is effected
or; Affect the prior management of
 any legislation that is repealed or
anything performed or undergone
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
Revival of Repeal It shall be essential to revive any
legislation either entirely or partly
repealed expressly to provide the
purpose
Computation of Time Where a person is given time to
Period comply with any provision of
Central Act, he is entitled to do
that during the course of that day
i.e., last day not to be excluded. If
court is closed on the last day, and
due date to be taken as subsequent
day afterward the Court reopen
Gender and Number Singular includes plural and
masculine includes female gender
Powers and
Functionaries
Section 14: Powers Power can be exercised includes
conferred to be power to amend, modify or cancel
exercisable from time a notification
to time

Section 15: Power to Appointment made by virtue of

appoint include office
power to appoint ex When a person takes the office of
officio Prime Minister, he automatically
becomes Chairman of different
committees (ex officio means by
virtue of his office)
Section 16: Power to appoint include power to suspend

Section 17:
Substitution of
functionaries

Section 18: it shall be sufficient, for the

Successors 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
Section 19: Officials Chief or superior of an office shall
Chiefs and apply to the deputies or
Subordinates subordinates lawfully performing
the duties of that office in the
place of their superior, to prescribe
the duty of the superior

Section 20: Where Central Act authorise to

Consideration of issue any notification, order, rule,
Orders issued under form etc, then such expression
Enactment used in notification, rule, form
shall have same respective
meanings as in the Act unless
there is anything contrary
expressed
Section 21: Power to It deals with power to issue, to
issue include power include power to add to, amend,
to amend vary or rescind notifications,
orders, rules or bye-laws
Section 22: Making If any new Act or provision
of rules or bye-laws requires establishment of court or
and issuing of orders Tribunal or any office it can be
between passing and done between (Eg: GST office and
commencement of appointment of GST officers
enactment before commencement of the Act)
passing of the Act and
commencement of the Act
But it will take effect only after
the commencement of the Act

Section 23: If is expressed to be given subject

Provisions applicable to the condition of the rules or
to making of rules or bye-laws being made after
bye-laws after previous publication, then the
previous publication authority should publish the draft
and consider the opinion from the
public and after considering the
suggestion from public, the law
should come into force
Section 24: Continuation of orders, etc. issued under
enactments repealed and re-enacted
Section 25: Recovery Fines will be recovered as per the
of Fines provisions mentioned from
sections 63 to 70 of Code of
Criminal Procedure for the time
being in force

Section 26: Provision Single offence considered as

as to offences offence under 2 enactments, the
punishable under two offender shall be liable to be
or more enactments prosecuted and punished under
either or any of those enactments
(not liable for 2 punishments for
the same offence)
Section 27: Meaning Properly addressing, pre-paying
of service by post and posting by registered post, a
letter containing the document, to
have been effected at the time at
which the letter would be
delivered in the ordinary course of
post

Section 28: Citation Any enactment may be cited by

of enactments reference to the title or short title
(if any) conferred thereon
 CHAPTER 5
ADMINISTRATIVE LAW

Introduction
● Administrative law is that branch of law that
deals with powers, functions and
responsibilities of the second organ of the state
i.e., executive
● It is considered as a branch of public law
Need for Administrative Law
● The goal of administrative law is to ensure that
the individual is not at receiving end of state’s
administrative power and in cases where the
individual is aggrieved by any action of the
administration, he or she can get it redressed
Sources of Administrative Law
Administrative Discretion
● It means the freedom of an administrative
authority to choose from amongst various
alternatives but with reference to rules of
reason and justice and not according to
personal whims
● Freedom to choose from various alternatives
allows the administration to fashion its best
response to various situations
Judicial Control Over Administration
● In India the modes of judicial control of
administrative action can be conveniently
grouped into three heads, which are as follows

Constitutional
● The Constitution of India is supreme and all
the organs of state derive their existence from
it. Indian Constitution expressly provides for
judicial review
Judicial Review
● 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
● 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.
Judicial Review is exercised at 2 stages
(1) At the stage of delegation of discretion
● The court exercise control over delegation of
discretionary powers to the administration by
adjudicating upon the constitutionality of the
law under which such powers are delegated
with reference to the fundamental rights
 (2) At the stage of exercise of discretion
● The courts in India have developed various
formulations to control the exercise of
administrative discretion, which can be
grouped under two broad heads, as under:
o Authority has not exercised its discretion
properly- ‘abuse of discretion’.
o Authority is deemed not to have exercised
its discretion at all- ‘non-application of
mind
Abuse of Discretion
Mala fides (dishonest intention)
Irrelevant Consideration
Leaving out relevant considerations
Arbitrary orders
Improper purpose
Exceeding jurisdiction
Non-compliance with procedural requirements and
principles of natural justice
Non – application of mind
Acting under dictation
Self-restriction
Acting mechanically without due care
Statutory
This type of review can be further dived into 2,
which are as follows
Statutory appeals
Reference to the High Court or statement of case

Ordinary or Equitable
(1) Injunction

Declaratory Action
● Declaration may be taken as a judicial order
issued by the court declaring rights of the
parties without giving any further relief
Action for Damages
● If any injury is caused to an individual by
wrongful or negligent acts of the Government
servant, the aggrieved person can file suit for
the recovery of damages from the Government
concerned
Principles of Natural Justice
● Natural justice is a concept of Common Law
and represents procedural principles developed
by judges
● Courts always insisted that fair or justice
should be followed and that is principles of
natural justice
Principles of Natural Justice is based on 2
Rules. They are –
Rule against bias also known as “nemo judex in
causa sua”
● According to this rule no person should be
made a judge in his own cause
● Bias can be of 3 types –
o Pecuniary bias
o Personal bias
o Subject matter bias
Rule of Fair Hearing also known as “audi
alteram partem”
● no one should be condemned unheard
● It means both sides should be heard before
passing an order
Main ingredients of this rule are –
● Right to notice
● Right to present case and evidence:
 ● Right to rebut adverse evidence
o Cross Examination
o Legal Representation
● Disclosure of evidence
● Speaking Orders
Exceptions to the Principle of Natural Justice
There are certain exceptions to the principle of
natural justice. They are as follows –
● Statutory Exclusion
● Emergency
● Interim Disciplinary Action
● Academic Evaluation
● Impracticability
Effect of Failure of Natural Justice
● In most cases a person affected by such an
order cannot be sure whether the order is
really valid or not until the court decided the
matter. Therefore, the affected person cannot
just ignore the order treating it as a nullity.
● He has to go to a Court for an authoritative
determination as to the nature of the order is
void.
● Usually, a violable order cannot be challenged
in collateral proceedings
 ● In India, by and large, the judicial thinking has
been that a quasi-judicial order made without
following natural justice is void and nullity
Liability

The liability of the government can either be

contractual or tortious
Contractual
● Contract must be made in the name of the
President or the Governor
● Executed on behalf of the President or the
Governor
● Person duly authorized by the President or the
Governor must execute the contract
In India, the remedy for the breach of a contract
with Government is simply suit for damages
Tortious Liability
● A tort is a civil wrong arising out of breach of
a civil duty or breach of non-contractual
obligation and the only remedy for which is
damages.
● Vicarious Liability – When the responsibility
of the act of one person falls on another
person, it is called vicarious liability.
● When a case of Government liability in tort
comes before the court, the question is
 whether that particular activity is considered
as a sovereign function or a non-sovereign
function
● If it is a sovereign function (like making of
law, administering law, carrying on war which
no one else can do apart from Govt),
Government can claim immunity from the
tortious liability
● If it’s a non-sovereign function (like running
of schools and hospitals) damages can be
claimed for the tortious behaviour
Damages
● It may happen that a public servant may be
negligent in exercise of his duty. It may,
however, be difficult to recover compensation
from him.
● From the point of view of the aggrieved
person, compensation is more important than
punishment. Therefore, like all other
employers the State must be made vicariously
liable for the wrongful acts of its servants

Liability of the Public Servant

● Liability of the State must be distinguished
from the liability of individual officers of the
State.
 ● An officer acting in discharge of his duty
without bias or Malafide could not be held
personally liable for the loss caused to another
person
● But, 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.
Liability of Public Corporation/Statutory
Corporation
● The term ‘Statutory Corporation refers to such
organisations which are incorporated under the
special Acts of the Parliament/State
Legislative Assemblies
Examples of Statutory Corporation
LIC; Food Corporation of India (FCI); Oil and
Natural Gas Corporation (ONGC); Air India; State
Bank of India; Reserve Bank of India; Employees
State Insurance Corporation; Central Warehousing
Corporation
Features of Statutory Corporation
● Incorporated under special Act of Parliament
● an autonomous body and is free from Govt
control
● a separate legal existence
● It is managed by Board of Directors
● It is supposed to be self-sufficient in financial
matters
● The employees of these enterprises are
recruited as per their own requirement
 CHAPTER 6
LAW RELATING TO TORTS

Introduction
● ‘Tort’ means wrong. But every wrong or
wrongful act is not a tort.
● Hence, we can say that “Tort is a civil wrong
& every civil wrong is not a tort”
Conditions to be satisfied to consider a civil
wrong as ‘Tort’

Mens Rea
● The General principle lies in the maxim “actus
non facit reum nisi mens sit rea” i.e., the act
itself creates no guilt in the absence of a guilty
mind.
● However, to this principle ABSOLUTE and
STRICT LIABILITY are EXCEPTIONS
 Kinds of Tortious Liability
STRICT LIABILITY / NO FAULT
LIABILITY
● Under strict liability, a person may be liable
for the harm even though he is not negligent in
causing harm to the other person 3 conditions
are to be compulsorily satisfied
o NON-NATURAL USE; ESCAPE;
DAMAGE
Exceptions to the Rule of Strict Liability
● Damage due to Natural Use; Consent of
Plaintiff; Act of Third Party; Statutory
Authority.

ABSOLUTE LIABILITY
● Rule of Strict Liability without exceptions is
“Rule of Absolute Liability”.
● This rule was laid down in M.C Mehta Vs
Union of India and Others (1987)

Difference between Strict Liability & Absolute

Liability

Strict Liability Absolute Liability

1.It has certain 1.No exceptions / defence
exceptions / defence
2.Applicable to 3.Applicable to enterprises
individuals

VICARIOUS LIABILITY
● 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
● The common examples of such a liability
are as follows
o Principal and Agent; Partners; Master and
Servant; and Employer and Independent
Contractor – with certain exceptions

VICARIOUS LIABILITY OF THE STATE

The position in England

● With the passing of the Crown Proceeding
Act, 1947 in England, the Crown is now
vicariously liable for the torts of its servants.

The position in India

● Unlike the Crown Proceeding Act, 1947 of
England, we have no statutory provision with
respect to the liability of the State in India.
 ● If it is a sovereign function, it could claim
immunity from the tortuous liability, otherwise
not

Sovereign function – Making of laws, rules etc

which only the Govt can do;

Non – Sovereign function – Public and private

can participate in commercial activities like
running of schools, hospitals etc)

Torts or Wrongs of Personal Safety and

Freedom
An action for damages lies in the following
kinds of wrongs which are styled as injuries to
the person or an individual:
Remedies in Torts

Judicial Remedies Damages

Injunction
Specific Restitution of the
Property
Extra Judicial Remedies
Self Defence
Preventing Trespass
Re-entry on Land
Recaption of Goods
Abatement of Nuisance
Distress Damage Feasant
 CHAPTER 7
LIMITATION ACT, 1963

Introduction
● The law relating to limitation is incorporated
in the Limitation Act of 1963, which
prescribes different periods of limitation for
suits, petitions or applications.
● The Act applies to all civil proceedings and
some special criminal proceedings
● Law of limitation helps only those who are
vigilant and not those who are indolent / lazy.
Limitation Bars Remedy but does not
Extinguish Right
● The Law of limitation bars the remedy in a
Court of law only when the period of
limitation has expired, but it does not
extinguish the right.
● Right will always be there, but one cannot go
to the court of law for remedy
Case Law: Bombay Dying & Mfg. Co. Ltd. v.
State of Bombay, AIR 1958 SC 328

Section 3 Bar of Limitation - The provisions of

Section 3 are mandatory provisions.
 ● It says any suit, appeal or any
application made after the expiry of
the period of limitation, shall not be
entertained by the court and such suit,
appeal or application shall be
dismissed.
● If a court accepts a time barred case
and if it passes a decree
● the decision of the court cannot be
challenged on the grounds that the suit
was time barred
Section 4 Extension of Time if Court is closed - If
on the last day of the period of limitation,
if the court is closed, then the period of
limitation will be extended upto the first
working day when the court reopens
A court shall be deemed to be closed the
whole day if any part normal working
hours it remains closed
Section 5 Doctrine of Sufficient Cause
● It deals with extending period of
limitation if sufficient cause (genuine
reason) is being shown for the delay
in filing suit, appeal or application
within the prescribed period of
limitation. The term sufficient cause
has not been defined in the Limitation
 Act. It depends on the circumstances
of each case.
● However, it must be a cause beyond
the control of the party
Few examples to understand what is
sufficient cause –
Mistake of counsel; Wrong advice given
by advocate; Mistake of law in
establishing or exercising the right;
Imprisonment of the party or serious
illness

Persons Under Legal Disability

[Section 6, 7 & 8 talks about legal disability and
we have to study 6,7 & 8 together in order to
have a better understanding of the concept]
Section 9 Continuous Running of Time –
This rule is based on the principle
“Time when once it has commenced
to run in any case will not cease to be
so by reason of any subsequent
event”.
Computation of In case of any suit, appeal or
Period of application, the period of limitation
Limitation is to be computed exclusive of the
(EXCLUSION OF day on which the time begins to run.
TIME PERIOD) Computation for an appeal or an
application for leave to appeal for
revision or for review of a
judgement – The day on which the
judgement complained of was
pronounced and the time required for
obtaining a copy of the decree,
sentence or order appealed from or
sought to be revised or reviewed
shall be excluded
Computation for an appeal or an
application for leave to appeal
from a decree or order – The day
on which the judgement complained
of was pronounced and
The time required for obtaining a
copy of the decree, sentence or order
 appealed from or sought to be
revised or reviewed shall be excluded
Computation for an application to
set aside an award - The day on
which the period begins to run and
the time required for obtaining a
copy of the award
Section 18 Calculation of Period of Limitation
in case of Acknowledgement - A
liability may be acknowledged by the
party against whom the liability is
alleged within the prescribed period
of limitation. If this
acknowledgement is given in writing,
it will give arise to a fresh period of
limitation
Section 19 Computation of Period of
Limitation in case of Payment of
Debt or Interest - According to this
section a fresh period of limitation
becomes available to the creditor
when part payment of debt is made
by the debtor before the expiration of
the period of limitation
Computation of All instruments shall for the purposes
Time Mentioned of this Act be deemed to be made
in Instruments
 with reference to the Gregorian
Calendar

Important Limitation Periods – As per the

Schedule to the Act
Suits Relating to Accounts 3 years
Suits Relating to Contracts 3 years
Suits Relating to 3 years
Declarations
Suits Relating to Decrees and 3 years
Instruments
Suits Relating to
Immovable Property
Suits to enforce payment of 12 years
money secured by a
mortgage
Suits for possession of 12 years
immovable property based
on title
Suit by mortgagor relating to 30 years
possession of immovable
property mortgaged
Suits Relating to Moveable 3 years
Property
Suits Relating to Torts 1 or 2 years
 CHAPTER 8
CIVIL PROCEDURE CODE (CPC), 1908
Introduction
● Civil Procedure means the body of law
concerned with the procedures and practices
used in civil litigation
● Civil cases are also called as suits or plaints.

The Structure of CPC, 1908 can be understood

with the help of a chart given below
● Both the divisions must be read together,
however, if there is a conflict between
Division I & II, Division I will prevail over
Division II
● The Code is the general law so that in case of
conflict between the Code and the special law
 the latter prevails over the former. Where the
special law is silent on a particular matter the
Code applies, but consistent with the special
enactment

Important Definitions
Decree
A decree is a final decision regarding the rights of
the parties in respect of all the matters or any of
the matters
Kinds of Decrees
Preliminary Decree
A decree is preliminary when further proceedings
have to be taken before the suit can be completely
disposed of. The preliminary decree is issued
during the pendency of the case
Final Decree
Final decree is a conclusive decree which is issued
at the end of the case.
Essentials of a Decree
● There must be formal expression of
adjudication
● There must be conclusive determination of the
rights of the parties
● The determination must be with regard to any
or all of the matters in a suit
 ● The adjudication should have been given in
the suit
Order "Order" as per Section 2(14) of the Code
means the formal expression of any decision of a
Civil Court which is not a decree.
Kinds of Orders
Interlocutory Order
These are the orders issued during the pendency of
the case. One order can supersede the other order.
(It is not conclusive unlike decree)
Other Orders
Orders passed at the conclusion or at the end of a
suit

Difference Between a Decree and an Order

Decree Order
It adjudicates and Order doesn’t
determines the rights of the conclusively determine the
parties conclusively rights of the parties
It is appealable unless It is non-appealable unless
specifically excluded specifically provided
Law sometimes provides No such appeal for an
second appeal in case of order
decree
It can be final or It can be interlocutory or
preliminary Other order
(Orders are always final
and one can supersede the
other, which cannot
happen in case of decree)
Structure of Civil Courts
● Section 3 of the Civil Procedure Code lays
down that for the purposes of this Code, the
District Court is subordinate to the High Court
and every Civil Court of a grade inferior to
that of a District and every Court of Small
Causes is subordinate to the High Court and
District Court.
Jurisdiction of Courts and Venue of Suits
● Jurisdiction means the authority by which a
Court has to decide matters that are brought
before it for Adjudication.
Kinds of limitation on jurisdiction of a Civil
Court
Jurisdiction over the subject matter
● The jurisdiction to try certain matters by
certain Court is limited by statute;
Place of suing or territorial jurisdiction
● A territorial limit of jurisdiction for each court
is fixed by the Government
Jurisdiction over persons
● All persons of whatever nationality are subject
to the jurisdiction of the Civil Courts of the
country except a foreign State, it’s Ruler or its
representative except with the consent of
Central Government.
Pecuniary (financial) jurisdiction depending on
pecuniary value of the suit
● 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
Jurisdiction can be further classified as follows:
● Original Jurisdiction - A court tries and
decides the suit filed before it
● Appellate Jurisdiction - A Court hears
appeals against decisions or decrees passed by
subordinate Courts
● Criminal and appellate Jurisdiction - The
Supreme Court, the High Courts, and the
District Courts have both original and
appellate jurisdiction in various matters
DOCTRINE OF RES SUB JUDICE OR STAY
OF SUIT (SECTION 10)
● Section 10 provides that no Court shall
proceed with the trial of any suit in which the
 matter in issue is also directly and
substantially in issue in a previously instituted
suit between the same parties or between
parties under whom they or any of them claim,
litigating under the same title, where such suit
is pending in the same or any other Court in
India.
● Section 10 is enacted to prevent Courts of
concurrent jurisdiction from simultaneously
trying two parallel suits in respect of same
matter in issue
● It also avoids conflict of decision
CASE LAW: Wings Pharmaceuticals Vs. Swan
Pharmaceuticals
Essentials or Conditions for application of
Section 10
● The matter must be two suits instituted at
different times
● The matter in issue in the latter suit should be
directly and substantially in issue in the earlier
suit
● Suit should be between the same parties
● Each earlier suit is still pending either in the
same Court or in any other competent Court
but not before a foreign Court
DOCTRINE OF RES JUDICATA (SECTION
11)
● Section 11 deals with the doctrine of Res
Judicata that is, bar or restraint on repetition of
litigation of the same issues
● The doctrine underlines the general principle
that no one shall be twice vexed (causing
problem) for the same cause
● It prevents two different decrees on the same
subject

Essentials or Conditions for application of

Section 11
● The matter directly and substantially in issue
in former suit shall also be directly and
substantially in issue in later suit
● The former suit has been decided
● 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.
● A consent or compromise degree is not a
decision by Court.
 Non – applicability
● Section 11 will not be applicable in those
circumstances where the first suits have been
dismissed on technical grounds and has not
been decided on merits of the case
Constructive Res Judicata
● Any matter which ought to have been raised in
the earlier suit, if not raised, would be deemed
to have been raised and decided in the earliest
suit and the same shall be barred in subsequent
suit also. This is known as constructive res
judicata

Difference between Section 10 & Section 11

RES SUB JUDICE RES JUDICATA
(SECTION 10) (SECTION 11)

It relates to a matter which It relates to a matter

is pending judicial enquiry adjudicated upon or a
matter on which judgement
has been pronounced
It bars the trial of a suit in It bars the trial of a suit of
which the matter directly or an issue in which the
substantially is pending matter directly and
adjudication in a previous substantially in issue has
suit already been adjudicated
upon in a previous suit

Place of suing
Section Provision
15 Every suit shall be instituted in the
Court of the lowest grade
16 Suits related to immovable property are
tried in the Court within whose
jurisdiction, the property is situated
17 Where immovable property is situated
within the jurisdiction of different
Courts, the suit may be instituted in
any Court in whose jurisdiction the
property is situated
18 If jurisdiction of Courts is uncertain
with respect to immovable property,
the suit may be filed in any of such
courts
19 Where wrong done to the person or to
movable property, if the wrong was
 done within the local limits of the
jurisdiction of one Court and the
defendant resides, or carries on
business, or personally works for gain,
within the local limits of the
jurisdiction of another Court, the suit
may be instituted at the option of the
plaintiff in either of the Courts
20 Where above sections i.e., Sections 15,
16, 17, 18 & 19 are not applicable,
such suits may be filed in the court
having jurisdiction over the place
where:
Defendant resides or Cause of action
has arisen

Set off 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, the defendant
should 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.
 Here the claim need not originate
from the same transaction and amount
must not be time barred (Court fee
needs to be paid)
Equitable Set Generally, the suits emerge from cross
off demands in the same transaction and
this doctrine is intended to save the
defendant from having to take
recourse to a separate cross-suit
It can be time barred and no court fee
needs to be paid separately
Counterclaim This Rule permits the defendant to set
up the claim as a counter to the claim
of the plaintiff which arose between
the parties

Important Stages in Proceeding of a Suit

Summons
● When the suit has been duly instituted, the
Court issues an order (known as summons) to
the defendant to appear and answer the claim
and to file the written statement of his defence
if any within a period of 30 days from the date
of service of summons
● The defendant may appear in person or by a
duly instructed pleader or by a pleader
accompanied by some person to be able to
 answer all material questions relating to the
suit
● 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

Appearance of Parties
● 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
● If the defendant is absent in spite of service of
summons and the plaintiff appears, the Court
may proceed exparte
● In case the defendant is not served with
summons, the Court shall order a second
summon to be issued

Discovery and Interrogation

● Any party to a suit, by leave of the Court, may
deliver interrogatories in writing for the
examination of the opposite parties.
 ● All documents relating to the matters in issue
in the possession or power of any adversary
can be inspected by means of discovery by
documents
Judgement
● The Court after the case has been heard shall
pronounce judgement in an open court either
at once or on some future day as may be fixed
by the court for that purpose of which due
notice shall be given to the parties
● The judgement must be dated and signed by
the judge. Once the judgement is signed it
cannot afterwards be altered or added to
except under review
Decree
● On judgement a decree follows. Every
endeavour must be made to ensure that decree
is drawn up expeditiously and in any case
within a period of 15 days from the date on
which the judgement is pronounced
Execution
● Execution is the enforcement of decrees or
orders of the Court. A decree may be executed
either by the Court which passed it or by the
Court to which it is sent for execution.
APPEALS
Appeal from original decree
● Appeals from original decrees may be
preferred in the Court superior to the Court
passing the decree. An appeal may lie from an
original decree passed ex parte.
● Where the decree has been passed with the
consent of parties, no appeal lies
Second appeal
● As per Section 100 of the Civil Procedure
Code, an appeal lies to the High Court from
every decree passed in appeal by any
subordinate Court if the High Court is satisfied
that the case involves a substantial question of
law.
Appeal against orders
● In general, appeals against the orders are not
allowed. However, if it is specifically allowed
under the provisions of law, appeal can be
filed against the orders on grounds of defects
or irregularity of law
Appeal to Supreme Court
Appeals to the Supreme Court would lie in the
following cases:
● from any decree or order of Civil Court when
the case is certified by the Court deciding it to
 be fit for appeal to the Supreme Court or when
special leave is granted under Section 112 by
the Supreme Court itself,
● from any judgement, decree or final order
passed on appeal by a High Court
● from any judgement, decree or final orders
passed by a High Court in exercise of original
civil jurisdiction.

Reference, Review and Judgement

Reference to High Court
● Subject to such conditions as may be
prescribed, at any time before judgement a
court in which a suit has been instituted may
state a case and refer the same for opinion of
the High Court and the High Court may make
such order thereon as it thinks fit.

Review
● It provides that any person considering himself
aggrieved by a decree or order may apply for a
review of judgement to the court which passed
the decree or made the order under any of the
following circumstances –
o discovery by the applicant of new and
important matter or evidence which, after
 the exercise of due diligence, was not
within his knowledge or could not be
produced by him at the time when the
decree was passed or order made, or
o on account of some mistake or error
apparent on the face of the record, or
o for any other sufficient reason
Revision
The High Court may call for the record of any case
which has been decided by any Court subordinate
to such High Court and in which no appeal lies
thereto, and if such subordinate Court appears—
● to have exercised a jurisdiction not vested in it
by law, or
● to have failed to exercise a jurisdiction so
vested, or
● to have acted in the exercise of its jurisdiction
illegally or with material irregularity

Temporary Injunction
● An injunction can be temporary or permanent
● Temporary injunction is regulated under Order
XXXIX of CPC whereas permanent injunction
is regulated under section 38 of Specific Relief
Act, 1963.
● A temporary injunction is an injunction issued
to continue until a specified period of time or
 until further orders from the court. It can be
granted at any time of the suit.

Suits by or against a Corporation

Signature or Verification pleading
● In suits by or against a corporation, any
pleading may be signed and verified on behalf
of the corporation, by the secretary or by any
director or other principal officer of the
corporation who is able to depose to the facts
of the case.
Service of summons
● Subject to any provision regulating service of
process, where the suit is against a
corporation, the summons may be served:
o on the secretary or any director or other
principal officer of the corporation, or
o by leaving it or sending it by post
addressed to the corporation at the
registered office or if there is no registered
office then at the place where the
corporation carries on business.

Power of the Court to require personal

attendance
● The Court may at any stage of the suit, require
the personal appearance of the secretary or any
 director, or other principal officer of the
corporation who may be able to answer
material questions relating to the suit

Suits by or against Minors

Order 32 of CPC deals with suits by or against
minors
● Every suit by a minor shall be instituted in his
name by a person who in such suit shall be
called the next friend of the minor. The next
friend should be a person who is of sound
mind and has attained majority.
● Where the suit is instituted without a next
friend, the defendant may apply to have the
plaint taken off the file, with costs to be paid
by the pleader or other person by whom it was
presented. (Dismissal of the suit)
● An order for the appointment of a guardian for
the suit may be obtained upon application in
the name and on behalf of the minor or by the
plaintiff

When minor attains majority

● When the minor plaintiff attains majority, he
may elect to proceed with the suit or
application or elect to abandon it.
 ● If he elects the former course, he shall apply
for an order discharging the next friend and for
leave to proceed in his own name and the title
of the suit will be corrected

Mis-joinder and Non – joinder of Parties

Mis – joinder
● Where more than one person joined in one suit
as plaintiffs or defendants in whom or against
whom any right to relief does not arise or
against whom separate suits are brought, no
common question of law or fact would arise, it
is a case of ‘misjoinder of parties.

Non – joinder
● It refers to a situation where a party who is
ought to have been impleaded according to the
law is not impleaded.
● No suit shall be defeated due to mis-joinder or
non-joinder of parties

Summary Procedure (Order XXXVII)

● A procedure by way of summary suit applies
to suits upon bill of exchange, hundies or
promissory notes, when the plaintiff desires to
proceed under the provisions of Order 37.
 ● The object is to prevent unreasonable
obstruction by a defendant.
● Under summary suit, defendant is not allowed
to defend unlike normal suits where he is
entitled to defend
● The debt or liquidated demand in money
payable by the defendant should arise on a
written contract or on an enactment or on a
guarantee

Leave to Defend
● In summary suits, the defendant is allowed to
defend until he enters appearance and makes
an application for leave to defend the suit,
within 10 days from the date of issue of
summons
● Leave to defend may be granted unconditional
or upon such term as the Court or the Judge
may think fit
● The summary suit must be brought within one
year from the date on which the debt becomes
due and payable, whereas the period of
limitation for suits for ordinary cases under
negotiable instrument is three years.
 CHAPTER 9
INDIAN PENAL CODE (IPC), 1860

Introduction
● In India, the base of the crime and punitive
provision has been laid down in Indian Penal
Code, 1860
IPC, 1860
● The Indian Penal Code, 1860 is a substantive
law of crimes.
● The procedural law through which the IPC is
implemented is the Criminal Procedure Code,
1973
● IPC consists of 23 chapters and more than 511
sections.
● It has two parts - general principles and
defences and specific offences
Jurisdiction
IPC, 1860 has two types of jurisdiction (special
jurisdictions) as follows –

The Code applies to any offence committed:

 ● Within the territory of India as defined in
Article 1 of Constitution of India.
● Within the territorial waters of India, or
● On any ship or aircraft either owned by India
or registered in India
Immunity or Exemption from intra-territorial
jurisdiction
● President or Governor of a State; foreign
sovereigns; ambassadors and diplomats of
foreign countries who have official status in
India.
Section 3 & 4 – Extra territorial jurisdiction
● According to section 3 if anyone commits any
offence beyond India which is punishable in
our country under any Indian law, he is liable
to be convicted and punished in the same
manner as if the crime was committed in India
● Section 4 also talks about the applicability of
IPC to any offence committed by any person
on any ship or aircraft registered in India
wherever it may be
● It does not matter where the ship or boat is,
whether it is in high seas or on rivers, whether
it is moving or stationery, having been
anchored for the time being.
 ● This jurisdiction called the ‘admiralty
jurisdiction

The Fundamental Elements of Crime

*Exceptions to Mens Rea

● Where statute imposes liability; penalty &
petty fines (difficult to prove mens rea); strict
liability for public safety and ignorance of law
Corporate Body & Mens Rea
● The criminal intent of the ‘alter ego’ (a trusted
friend) of the company/ body corporate, i.e.,
the person or group of persons that guide the
business of the company, is imputed to the
company
4 Stages of Crime

Under IPC, the sections on attempt can be

divided into four broad categories
● Sections in which the commission of an
offence and the attempt to commit are dealt
within the same section i.e. same punishment
for both (Eg: waging or attempting to wage
war against the Government of India,
assaulting or attempting to assault the
President or Governor etc)
● Separate punishment and different sections for
an attempt and actual accomplishment. Eg:
murder and attempt to murder
● Attempt to commit suicide specifically given
in sec 309
● Sec 511- offences for which no specific
punishment has been provided in the IPC (one-
 half of the longest term of imprisonment
provided for that particular offence)
(In the eyes of the law, the accused person is
innocent till it is proven otherwise by the
prosecution)
Punishments

Criminal Conspiracy
● Criminal conspiracy is covered under section
120A and 120-B of the IPC.
Section 120A – Definition of Criminal
Conspiracy
● 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 by illegal
means, such an agreement is designated a
criminal conspiracy:
Section 120B – Punishment of Criminal
Conspiracy
● The punishment for conspiracy is the same as
if the conspirator had abetted the offence
Other Important Provisions
Sections Provisions
403 Dishonest Misappropriation of Property
- imprisonment of either description for a
term which may extend to two years, or
with fine, or with both
404 Dishonest misappropriation of property
possessed by deceased person at the time
of his death - shall be punished with
imprisonment of either description for a
term which may extend to three years, and
shall also be liable to fine, and if the
offender was an employee of deceased, the
imprisonment may extend to seven years
 Criminal Breach of Trust - Whoever,
entrusted with property dishonestly
405 & 409 misappropriates or uses or disposes of that
property in violation of any direction of law
commits “criminal breach of trust”.
406 Punishment for criminal breach of trust
– imprisonment which may extend to three
years, or with fine, or with both.

407 Criminal breach of trust by carrier -

imprisonment which may extend to seven
years, and shall also be liable to fine.

408 Criminal breach of trust by carrier -

imprisonment which may extend to seven
years, and shall also be liable to fine

409 Criminal breach of trust by public

servant, or by banker, merchant or agent
- In respect of public servants, a much more
stringent punishment of life imprisonment
or imprisonment up to 10 years with fine is
provided
Sections 415 to 420 – Cheating (Under cheating,
accused obtains possessions as well as property in
it)
Section 415 – This section basically talks about
what is cheating and its ingredients

Main ingredients of cheating

416 Cheating by Personation – Pretending as

someone else -

419 Punishment Cheating by Personation -

shall be punished with imprisonment of either
description for a term which may extend to
three years, or with fine, or with both
418 Cheating with knowledge that wrongful
loss may ensue to person whose interest
offender is bound to protect – imprisonment
which may extend to three years, or with fine,
or with both.
417 Simple cheating is punishable under
section 417 of the IPC
420 Cheating and dishonestly inducing
delivery of property - whoever induces the
person deceived to deliver any property to
any person, or to make, alter or destroy the
whole or any part of a valuable security and
which is capable of being converted into a
valuable security, shall be punished with
imprisonment of either description for a term
which may extend to seven years, and shall
also be liable to fine
421 Dishonest or fraudulent removal or
concealment of property to prevent
distribution among creditors - shall be
punished with imprisonment of either
description for a term which may extend to
two years, or with fine, or with both
422 Dishonestly or fraudulently preventing
debt being available for creditors - This
section is intended to prevent the defrauding
of creditors by masking property - shall be
punished with imprisonment of either
description for a term which may extend to
two years, or with fine, or with both

423 Dishonest or fraudulent execution of deed

of transfer containing false statement of
consideration - This section deals with
fraudulent and fictitious conveyances and
transfers - shall be punished with
imprisonment of either description for a term
which may extend to two years, or with fine,
or with both
424 Dishonest or fraudulent removal or
concealment of property - Whoever
dishonestly or fraudulently conceals or
removes any property of himself or any other
person, or dishonestly or fraudulently assists
in the concealment or removal thereof, or
dishonestly releases any demand or claim to
which he is entitled, shall be punished with
imprisonment of either description for a term
which may extend to two years, or with fine,
or with both

463 Forgery – It includes both false document or

false electronic record

465 Punishment for forgery - shall be punished

with imprisonment of either description for a
term which may extend to two years, or with
fine, or with both

Section 499 – Defamation

● Whoever, by words either spoken or written
makes or publishes any imputation concerning
any person intending to harm the reputation of
such person, is said, to defame that person
Exceptions (i.e., Under the following
circumstances, it is not considered as
defamation)

Section 500 – Punishment for Defamation

● According to section 500 whoever defames
another shall be punished with simple
imprisonment for a term which may extend to
two years, or with fine, or with both
General Exceptions
The Indian Penal Code, 1860 also provides for
general exceptions for a person accused of
committing any offence under the Code to plead in
his defence. 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

Section Provision
76 Mistake of Fact- bound by law
77 Act of Judge when acting judicially
78 Act done pursuant to the judgment or order
of Court
80 Accident in doing a lawful act
81 Act likely to cause harm, but done without
criminal intent
82 Act of a child under seven years of age
83 Act of a child above seven and under twelve
of immature understanding
84 Act of a person of unsound mind
85 Act of a person incapable of judgment by
reason of intoxication caused against his will
86 Offence requiring a particular intent or
knowledge committed by one who is
intoxicated
87 Act not intended and not known to be likely
to cause death or grievous hurt, done by
consent
88 Act not intended to cause death, done by
consent in good faith for person's benefit
89 On consent of guardian if any act is done in
good faith to it
90 Consent
91 Exclusion of acts which are offences
independently of harm caused
92 Act done in good faith for benefit of a person
without consent
93 Communication made in good faith
94 Act to which a person is compelled by threats
95 Act causing slight harm
 CHAPTER 10
CRIMINAL PROCEDURE CODE, 1973

Introduction
● The Code of Criminal Procedure, 1898 (Cr.
P.C.) was repealed by the Code of 1973
enacted 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
● Its object is to provide a machinery for
determining the guilt of and imposing
punishment on offenders under the substantive
criminal law

Definitions

Bailable Offence and Non-bailable Offence

A “bailable offence” means an offence which is
shown as bailable in the First Schedule of CrPC. or
which is made bailable by any other law for the
time being in force. “Non-bailable” offence means
any other offence.
Cognizable Offence and Non-cognizable
Offence
“Cognizable offence” means an offence for which,
and “cognizable case” means a case in which, a
police officer may, in accordance with the First
Schedule or under any other law for the time being
in force, arrest without warrant
“Non-cognizable offence” means an offence for
which, and “non-cognizable” case means a case in
which, a police officer has no authority to arrest
without warrant. Thus, a non-cognizable offence
needs special authority to arrest by the police
officer
Complaint
“Complaint” means any allegation made orally or
in writing to a Magistrate, with a view to his
taking action under this Code that0 some person,
whether known or unknown, has committed an
offence, but it does not include a police report
Summons and Warrant Cases
“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 two years
Power of Courts to pass sentences

Sentence of imprisonment in default of fine

● Where a fine is imposed on an accused and it
is not paid, the law provides that he can be
imprisoned for a term in addition to a
substantive imprisonment awarded to him, if
any.
● It provides that the Court of a Magistrate may
award such term of imprisonment in default of
payment of fine as is authorised by law
provided
o that the term is not in excess of the powers
of the Magistrate under Section 29; and
o where imprisonment has been awarded as
part of the substantive sentence, it should
not exceed 1/4th of the term of
 imprisonment which the Magistrate is
competent to inflict as punishment for the
offence otherwise than as imprisonment in
default of payment of the fine.

Section 41 - Arrest of Persons

● The word “arrest” when used in its ordinary
and natural sense means the apprehension or
restrain or the deprivation of one’s personal
liberty to go where he pleases

Who can be arrested?

● who commits, in the presence of a police
officer, 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
● who has been proclaimed as an offender;
● in whose possession anything is found which
may reasonably be suspected to be stolen
property
 ● who obstructs a police officer while in the
execution of his duty;
● who is reasonably suspected of being a
deserter from any of the Armed Forces;
● who being a released convict, commits a
breach of any rule made;

Section Provision
42 If any person who is accused of committing a
non-cognizable offence does not give his
name, residence or gives a name and
residence which the police officer feels to be
false, he may be taken into custody
43 A private person may arrest or cause to be
arrested any person who in his presence
commits a non-bailable and cognizable
offence or who is a proclaimed offender
44 Arrest by Magistrate – Magistrate is given
power to arrest if any person commits any
offence in his presence
45 This section protects members of Armed
Forces from arrest where they do something
in discharge of their official duties
46 The Section authorises a police officer or
other person making an arrest to actually
touch or confine the body of the person to be
 arrested and such police officer or other
person may use all necessary means to effect
the arrest if there is forcible resistance. The
Section does not give a right to cause the
death of a person who is not accused of an
offence punishable with death sentence or
life imprisonment.
Some special safeguards have been made for
women who are to be arrested. Eg: arresting
a woman has to be before sunset or after
sunrise
48 Authorises a police officer to pursue the
offender whom he is authorised to arrest
without warrant into any place in India for
the purpose of effecting his arrest
When a person is arrested without a warrant,
he can be kept into custody for a period not
exceeding 24 hours, and before the expiry of
that period he is to be produced before the
nearest Magistrate, who can under Section
167 order his detention for a term not
exceeding 15 days, or he can be taken to a
Magistrate, under whose jurisdiction he is to
be tried, and such Magistrate can remand him
to custody for a term which may exceed 15
days but not more than 60 days
58 Officers in-charge of the concerned police
stations shall report to the Magistrate the
cases of all persons arrested without warrant
59 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
61 Summons
● A summons may be issued to an accused
person or witness either for appearance
or for producing a document or thing.
Every summons issued by the Court shall
be in writing, in duplicate, signed by the
Presiding Officer of such Court or by
such officer as is authorised by the High
Court and shall bear the seal of the Court
● It should be clear with respect to time
and date
62 The summons shall be served by a police
officer or by an officer of the Court or other
public servant
63 The service of summons on a corporation
may be affected by serving it on the
secretary, local manager or other principal
officer of the corporation
64 Where the person summoned cannot be
found by the exercise of due diligence, the
summons may be served by leaving one of
 the duplicates for him with some adult male
member of his family residing with him
66 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 as
provided
70 Warrant of Arrest
Every warrant of arrest issued by a Court
under this Code shall be in writing, signed by
the presiding officer of such Court, and shall
bear the seal of the Court.
The requisites of a warrant are as follows:
● It must be in writing.
● It must bear the name and designation of
the person who is to execute it;
● It must give full name and description of
the person to be arrested;
● It must state the offence charged;
● It must be signed by the presiding
officer; and
● It must be sealed.
82 & 83 Proclamation & Attachment
When a warrant is unexecuted, there are 2
remedies
 ● If a Court has reason to believe that any
person against whom a warrant has been
issued by it has absconded or is
concealing himself so that such warrant
cannot be executed, the Court may
publish a written proclamation requiring
him to appear at a specified place and at
a specified time not less than 30 days
from the date of publishing such
proclamation.
● While issuing proclamation, the
Magistrate must record to his satisfaction
that the accused has absconded or is
concealing himself. The object of
attaching property is not to punish him
but to compel his appearance.
93 Search warrant can be issued only in the
following cases:
● Where the court has a reason to believe
that a person summoned to produce any
document or other thing will not produce
it
● Where such document or thing is not
known to the court to be in possession of
any person
 ● Where a general inspection or search is
necessary

106 When a Court of Session or Court of a

Magistrate of first class convicts a person of
any of the offences specified below or of
abetting such offences and is of opinion that
it is necessary to take security from such
person for keeping the peace, the Court may,
at the time of passing sentence on such
person, order him to execute a bond, with or
without sureties, for keeping the peace for
such period, not exceeding three years, as it
thinks fit
The offences are as follows –
● any offence punishable under Chapter
VIII of the India Penal Code 1860.
● any offence which consists of or
includes, assault or using criminal force
or committing mischief;
● any offence of criminal intimidation;
● any other offence which caused, or was
intended or known to be likely to cause a
breach of the peace
107 When an Executive Magistrate receives
information that any person is likely to:
 ● commit a breach of peace; or
● disturb the public tranquillity; or
● do any wrongful act that may probably
occasion a breach of the peace; or disturb
the public tranquillity;
he may require such person to show cause
why he should not be ordered to execute a
bond for keeping the peace for a period not
exceeding one year as the Magistrate deem
fit.
129 Dispersal of assembly by use of civil force
● Any Executive Magistrate or office
in-charge of a police station may
command any unlawful assembly or any
assembly of five or more persons likely
to cause a disturbance of the public peace
● If any such assembly does not disperse
then, may require the assistance of any
male person not being an officer or
member of the armed forces and acting
as such, for the purpose of dispersing
such assembly
130 If any such assembly cannot be otherwise
dispersed, and if it is necessary for the public
security that it should be dispersed, the
Executive Magistrate of the highest rank who
 is present may cause it to be dispersed by the
armed forces and to arrest and confine such
persons in order to disperse the assembly or
to have them punished
133 Conditional order for removal of nuisance
● the unlawful obstruction or nuisance
should be removed from any public place
● carrying on any trade or occupation
injurious to the health of the community
● the construction of any building or the
disposal of any substance, as is likely to
cause conflagration or explosion; etc.
● the building, tent or structure near a
public place
● the dangerous animal requiring
destroying, confining or disposal.
For initiating prevention under this Section,
the Magistrate should keep in mind that he is
acting purely in the public interest.
144 Power to issue order in urgent cases of
nuisance or apprehended danger
● An order under this Section may be
passed ex-parte in cases of emergency or
in cases where the circumstances do not
admit of the serving of notice in due time
upon the person against whom the order
is directed.
 ● An order under this Section can remain
in force for two months, and may be
extended further for a period not
exceeding six months by the State
Government
149 ● If the police officer receives the
information of a design to commit such
an offence, he can communicate such
information to his superior police officer
and to any other officer whose duty it is
to prevent or take cognizance of the
commission of any such offence.
● The police officer may arrest the person
without orders from Magistrate and
without a warrant if the commission of
such offence cannot be otherwise
prevented
● The arrested person can be detained in
custody only for 24 hours
153 Any officer incharge of the police station
may without a warrant enter any place within
the limits of such station for the purpose of
inspecting or searching for any weights or
measures or instruments for weighing, used
or kept therein, whenever he has reason to
believe that there are in such place any
 weights, measures or instruments for
weighing which are false
Information to the Police and Their
Powers to Investigate
Information in cognizable cases
● Every information relating to the
commission of a cognizable offence, if
given orally to an officer in charge of a
police station, shall be reduced to writing
and it is called FIR (First Information
Report).
● For the purpose of enabling the police to
start investigation, it is open to the
Magistrate to direct the police to register
an FIR
● Any person aggrieved by a refusal on the
part of an officer in-charge 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
● A copy of the information as recorded
shall be given to the informant free of
cost
156 In case of a cognizable offence the police
officer may conduct investigations without
the order of a Magistrate
 165 If the police officer has reason to believe that
anything necessary for the purpose of an
investigations may be found
173 Every investigation must be completed
without undue delay
Powers of Magistrate
Cognizance of an offence by Magistrate
● The Court can take cognizance of an
offence only when conditions requisite
for initiation of proceedings before it is
fulfilled otherwise the Court does not
obtain jurisdiction to try the offence
● Any Magistrate of first class and of the
second class specially empowered may
take cognizance of an offence upon:
o receiving a complaint of facts
constituting such offence;
o a police report of such facts;
o information received from any
person other than a police officer;
o his own knowledge that such offence
has been committed
193 & ● The Court of Session does not take
194 cognizance of any offence, as a Court of
original jurisdiction unless the case has
been committed to it by a competent
Magistrate.
 ● The Additional Sessions Judge and
Assistant Sessions Judge try such cases
as the High Court may direct or the
Sessions Judges may make over to them
467-473 Except as otherwise specifically provided
in the Code, no Court shall take
cognizance of an offence after the expiry of
the period of limitation mentioned below:
● six months, if the offence is punishable
with fine only.
● one year, if the offence is punishable
with imprisonment for a term not
exceeding one year; and
● three years, if the offence is punishable
with imprisonment for a term exceeding
one year but not exceeding three years.
469 The period in relation to an offender
commences
● on the date of the offence; or
● if the commission of the offence was not
known to the person aggrieved or to the
police officer, the first day on which
either such offence comes to the
knowledge of such person or to any
police officer, whichever is earlier; or
 ● where the identity of the offender is not
known, the first day on which such
identity becomes known either to the
person aggrieved or the police officer
whichever is earlier
470 Exclusion of time in certain cases
● the period during which another
prosecution was diligently prosecuted
(the prosecution should relate to the same
facts and is prosecuted in good faith);
● the period of the continuance of the stay
order or injunction (from the date of
grant to the date of withdrawal) granted
against the institution of prosecution;
● where notice of prosecution has been
given, the period of notice;
● where previous sanction or consent for
the institution of any prosecution is
necessary, the period required for
obtaining such consent or sanction
including the date of application for
obtaining the sanction and the date of the
receipt of the order;
● the period during which the offender is
absent from India or from territory
outside India under Central Govt.
Administration; and
 ● period when the offender is absconding
or concealing himself
471 If limitation expires on a day when the Court
is closed, cognizance can be taken on the day
the Court re-opens
472 In the case of a continuing offence, a fresh
period of limitation begins to run at every
moment during which the offence continues
473 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
Summary Trials
Summary trial is a speedy trial by dispensing
with formalities or delay in proceedings.
Generally, it will apply to such offences not
punishable with imprisonment for a term
exceeding two years
The following offences can be tried in a
summary way
● offences not punishable with death,
imprisonment for life or imprisonment
for a term exceeding two years;
● theft under Section 379, Section 380 or
Section 381 of the Indian Penal Code,
 where the value of the property stolen
does not exceed ₹2,000;
● receiving or retaining stolen property,
under Section 411 of the Indian Penal
Code, where the value of such property,
does not exceed ₹2,000;
● assisting in the concealment or disposal
of stolen property, under Section 414 of
the Indian Penal Code, where the value
of such property does not exceed ₹2,000;
● offences under Sections 454 and 456 of
the Indian Penal Code;
● insult with intent to provoke a breach of
the peace, under Section 504 of the
Indian Penal Code;
● abatement of any of the foregoing
offences;
● an attempt to commit any of the
foregoing offences, when such attempt is
an offence;
● any offence constituted by an act in
respect of which a complaint may be
made under Section 20 of the Cattle
Trespass Act, 1871.
262 ● It lays down that in all summary trials the
summons-case procedure should be
followed irrespective of the nature of the
 case i.e. whether it is a summons-case or
a warrant case
● It also lays down the limit of the sentence
of imprisonment states that no sentence
of imprisonment for a term exceeding 3
months shall be passed in any conviction
in summary trials
Judgement in Summary Trials
● In every case tried summarily in which
the accused does not plead guilty, the
Magistrate shall record the substance of
the evidence and a judgement containing
a brief statement of the reason for the
finding.
● The concerned Magistrate must sign such
record and judgement
482 Inherent Power of High Court
● The powers of the High Court U/s 482
CrPC are partly administrative and partly
judicial. Inherent powers u/s 482 of
CrPC. include powers to quash FIR,
investigation or any criminal proceedings
pending before the High Court or any
Courts subordinate to it and are of wide
magnitude.
● It is well settled that the inherent powers
under section 482 can be exercised only
when no other remedy is available to the
litigant and not where a specific remedy
is provided by the statute.
● If an effective alternative remedy is
available, the High Court will not
exercise its powers under this section,
especially when the applicant may not
have availed of that remedy
 CHAPTER 11
INDIAN EVIDENCE ACT, 1872
Introduction
● The "Law of Evidence" may be defined as a
system of rules for ascertaining controverted
questions of fact in judicial inquiries and it
applies to all judicial proceedings
Non - applicability
● Court martial; Proceedings carried out before
an arbitrator; and Affidavits

Judicial Proceedings
● The Act does not define the term "judicial
proceedings" but it is defined under Section
2(i) of the Criminal Procedure Code as "a
proceeding in the course of which evidence is
or may be legally taken on oath".
Evidence
● The word evidence in the Act signifies only
the instruments by means of which relevant
facts are brought before the Court, viz.,
witnesses and documents, and by means of
which the court is convinced of these facts.
Types of Evidence

Structure of the Act

Fact
● anything, state of things, or relation of things
capable of being perceived by the senses;
● any mental condition of which any person is
conscious.
● Physical Fact – Mr. A heard certain word
 ● Psychological Fact – Mr. B has a good
reputation
Relevant Fact
● One fact is said to be relevant to another when
the one is connected with the other in any of
the ways referred to in the provisions of this
Act relating to the relevancy of facts.
Logical Relevancy and Legal Relevancy
● Facts may be logical or legal
● A judge while giving judgement focuses more
on legal relevancy rather than logical
relevancy even though, certain facts appear to
him as logically relevant
Facts in Issue
● A fact in issue is called as the principal fact to
be proved the relevant fact the evidentiary fact
from which the principal fact follows
Classification of Relevant Facts
Sections Provision
6 to 16 facts connected with the facts to be
proved
17 to 31 statement about the facts to be
proved e.g., admission, confession
32 & 33 statements by persons who cannot be
called as witnesses
 34 to 38 Statements made under special
circumstances
39 how much of a statement is to be
proved
40 to 44 judgements of Courts of justice,
when relevant
45 to 51 opinions of third persons, when
relevant
52 to 55 character of parties in Civil cases and
of the accused in criminal cases
Relevancy of Facts Connected with the Fact to
be Proved
Section 6 - Res Gestae – Facts though not in
issue, so connected with a fact in issue as to
form part of the same transaction
● Res Gestae means surrounding circumstances
which cannot be separated from the fact in
issue and it is necessary to explain the main
act
● The obvious ground for admission of such
evidence is the spontaneity and immediacy of
the act or declaration in question

Section 7 –
● Facts constituting the occasion, or effect of, or
opportunity or state of things for the
 occurrence of the fact to be proved whether it
be a fact or another relevant fact
● Example - Whether A murdered B . Marks
on the ground, produced by a struggle at or
near the place whether the murder was
committed, are relevant facts.
Section 8 - Motive, preparation and previous or
subsequent conduct
● According to this section, any fact is relevant
which shows or constitutes a motive or
preparation for any fact in issue or relevant
fact
Motive – It means which moves a person to act in
a particular way. It is an inducement for doing an
act.
Preparation – It means arranging of necessary
things to commit a crime
Conduct – Conduct means behaviour
Previous Conduct – It is the behaviour
Subsequent Conduct – It refers to the behaviour
of the parties after committing a crime
Section 9 - Facts necessary to explain or
introduce relevant facts.
According to Section 9, such facts are -
Necessary to explain or introduce a fact; or support
or rebut an inference suggested by a fact in issue;
or which establish the identity of a person/thing
whose identity is relevant; or fix the time or place
at which relevant fact happened; or show the
relation of parties by whom any such fact was
transacted.
Hearsay Evidence
● A general rule is that hearsay evidence is not
an evidence. However, there are 3 exceptions
to it.
Exceptions to Hearsay Evidence

Sections 17 to 31 – Admissions & Confessions

Admission
● An admission is defined in Section 17 as a
statement, oral or documentary or contained in
electronic form which suggests any inference
as to any fact in issue or relevant fact, and
which is made by any of the persons
 ● Any of the persons include – Agent;
Predecessor in interest of a party; By a person
having joint propriety of pecuniary interest;
By a reference
● An admission must be clear, precise,
unambiguous and not vague
● These Sections deal only with admissions oral
and written
● Oral admissions as to the contents of
electronic records are not relevant unless the
genuineness of the record produced is in
question

Confessions (section 24-30)

● The Act does not define a confession but
includes in its admissions of which it is a
species. Thus, confessions are special form of
admissions
● Every confession must be an admission but
every admission may not amount to a
confession.
● The confession made in front of magistrate in
a native state recorded is admissible against its
maker is also admissible against co-accused
under Section 30
● Confession cannot be made under –some
inducement, threat or promise or to a Police
 Officer or to any one at a time when the
accused is in the custody of a Police Officer
and no Magistrate is present
● To exclude the confession, it is not always
necessary to prove that it was the result of
inducement, threat or promise. It is sufficient
if a legitimate doubt is created in the mind of
the Court or it appears to the Court that the
confession was not voluntary
● Types of Confessions
o Judicial Confession – are those made
before a Court
o Extra Judicial Confession - those which
are made either to the police or to any
person other than Judges and Magistrates
as such

Difference Between Admission & Confession

Admission Confession
Definition is given U/s 17 No definition
of the Act
It can be oral Even if it is oral, it is to be
recorded in writing and
signed by the concerned
parties
It can be under compulsion It has to be voluntary
also
It can be made by accused Has to be made by the
or any other person accused only
It binds the maker It binds even the
co-accused
All admissions need not be All confessions are
confessions admissions
It is allowed in civil as well It is generally allowed in
as criminal cases criminal cases

Statements by persons who cannot be called as

witness
Certain statements made by persons who are dead,
or cannot be found or produced without
unreasonable delay or expense, makes the second
exception to the general rule. However, the
statement must relate to fact in issue or relevant
fact

That the statement must fall under any of

following categories
● is made by a person as to the cause of his
death
● made in the course of business
● is against the interest of the maker
● a statement giving the opinion as to the public
right or custom
 ● a statement made before the commencement
of the controversy as to the relationship of
persons deceased
● a statement in any will
● a statement made by a number of persons
expressing their feelings
● evidence given in a judicial proceeding

Statements Made Under Special Circumstances

The following statements become relevant on
account of there having been made under
special circumstances

Sections Provision
34 Entries made in books of account maintained
in an electronic form regularly kept in the
course of business
35 Entries made in public or official records
made by a public servant in the discharge of
his official duties
36 Statements made in published maps or charts
made under the authority of the Central
Government or any State government
37 Statement as to fact of public nature
contained in certain Acts
38 Statement as to any foreign law contained in
books published by foreign Govt
 39 When any statement of which evidence is
given forms part of a longer statement
evidence shall be given of so much and no
more of the statement, conversation,
document, electronic record, book or of
letters or papers as the Court considers
necessary in that particular case to the full
understanding of the nature and effect of the
statement

Opinion of Third Persons When Relevant

The general rule is that opinion of a witness on a
question whether of fact or law, is irrelevant.
However, there are some exceptions to this general
rule. They are as follows –
Sections Provision
46 Facts which support or are inconsistent
with the opinions of experts are also made
relevant
47 Opinion as to the handwriting of a person
47A Opinion as to the digital signature of any
person, the opinion of the Certifying
Authority
48 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
 49 Opinion as to usages etc. words and terms
used in particular areas
50 Opinion expressed by conduct as the
existence of any relationship by persons
having special means of knowledge on the
subject

Privileged Communication
● There are some facts of which evidence cannot
be given though they are relevant, such as
facts coming under Sections 122, 123, 126 and
127, where evidence is prohibited under those
Sections. They are referred to as ‘privileged
communications
A witness though compellable to give evidence
is privileged in respect of particular matters
within the limits of which he is not bound to
answer questions while giving evidence. These
are based on public policy and are as follows

Sections Provision
121 Evidence of a Judge or Magistrate in
regard to certain matters
122 Communications during marriage
123 Affairs of State
124 Official communications
 125 Source of information of a Magistrate or
Police officer or Revenue officer as to
commission of an offence
126-129 professional communication between a
client and his barrister, attorney or other
professional or legal advisor.

Section 65A – Special Provisions as to Evidence

Relating to Electronic Record
● It provides that the contents of electronic
records may be proved in accordance with the
provisions of Section 65B

Presumptions
● The Act recognises some rules as to
presumptions.
● A presumption is a rule of law that courts or
juries shall or may draw a particular inference
from a particular fact or from particular
evidence unless and until the truth of such
inference is disproved.

Types of Presumptions
Presumptions of Law; Presumptions of Fact; and
Mixed Presumptions
Estoppel (Section 115)
To invoke the doctrine of estoppel, following
conditions are to be satisfied –
● A representation made by a person to another
● The other person should have acted upon the
said representation and
● Such action must have caused loss or damage
to whom such representation has been made

Types/Kinds of Estoppel
Estoppel by attestation; Estoppel by contract;
Constructive estoppel; Estoppel by election;
Equitable estoppel; Estoppel by negligence; and
Estoppel by silence

Witness (Section 118)

● Every person is a competitive witness
provided such person understands the
questions posed to him and can give logical
and rational answer to the questions including
a child
 CHAPTER 12
SPECIAL COURTS, TRIBUNAL UNDER
COMPANIES ACT & OTHER
LEGISLATIONS

Introduction
● Tribunal, generally, is any person or institution
having an authority to judge, adjudicate on, or
to determine claims or disputes – whether or
not it is called a tribunal in its title.
● ‘Tribunal’ is an administrative body
established for the purpose of discharging
quasi-judicial duties.
● An Administrative Tribunal is neither a Court
nor an executive body. It stands somewhere
midway between a Court and an
administrative body
Background of Establishment of NCLT &
NCLAT
● On the recommendations of the Justice Eradi
Committee on Law Relating to Insolvency and
Winding up of Companies, a specialized
institution for corporate justice i.e., Tribunal
was to be set up
 ● The Supreme Court under Article 32 and High
Court under Article 226 form the basic
structure of the Constitution of India
● The Tribunals may continue to act like courts
of first instance in respect of the areas of law
for which they have been constituted
● Where the case involves substantial question
of law, it cannot be decided by tribunals as this
comes under the purview of the higher
judiciary
● National Company Law Tribunal (NCLT) &
the Appellate Tribunal have been constituted
by the Central Govt. under section 408 & 410
of the Companies Act, 2013 (the Act) to
exercise and discharge the powers and
functions conferred on NCLT.
● The Appellate Tribunal is required to hear
appeals against the orders of the NCLT,
NFRA and CCI
Constitution of NCLT (Sec 408)
● It consists of a President and such number of
Judicial and Technical members, as the Central
Government may deem necessary, to be
appointed by it by notification
Constitution of NCLAT
● It is consisting of a chairperson and such
number of Judicial and Technical Members, as
the Central Government may deem fit, to be
appointed by it by notification.
Benches of Tribunal
● There shall be constituted such number of
Benches of the Tribunal, as may, by
notification, be specified by the Central
Government.
● The Principal Bench of the Tribunal shall be at
New Delhi which shall be presided over by the
President of the Tribunal.
● The powers of the Tribunal shall be
exercisable by Benches consisting of two
Members out of whom one shall be a Judicial
Member and the other shall be a Technical
Member
● If the Members of a Bench differ in opinion on
any point or points, it shall be decided
according to the majority, if there is a majority
Orders of Tribunal
● The Tribunal may, after giving the parties to
any proceeding before it, a reasonable
opportunity of being heard, pass such orders
thereon as it thinks fit
 ● The Tribunal shall send a copy of every order
passed under this section to all the parties
concerned.
Appeal from Orders of Tribunal
● Any person aggrieved by an order of the
Tribunal may prefer an appeal to the Appellate
Tribunal
● 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.
Expeditious Disposal by Tribunal and Appellate
Tribunal
Time Limit
● Endeavour shall be made by the Tribunal or
the Appellate Tribunal, as the case may be, for
the disposal of such application or petition or
appeal within three months from the date of its
presentation before the Tribunal or the filing of
the appeal before the Appellate Tribunal
Extension of Time Limit
● The President or the Chairperson, as the case
may be, may, after taking into account the
reasons so recorded, extend the period not
 exceeding ninety days as he may consider
necessary
Appeal to Supreme Court
● Any person aggrieved by any order of the
Appellate Tribunal may file an appeal to the
Supreme Court within sixty days from the date
of receipt of the order of the Appellate
Tribunal to him on any question of law arising
out of such order
Section 425 - Power to Punish for Contempt
● The Tribunal and the Appellate Tribunal shall
have the same jurisdiction, powers and
authority in respect of contempt of themselves
as the High Court has and may exercise, for
this purpose, the powers under the provisions
of the Contempt of Courts Act, 1971
Delegation of Powers
● The Tribunal or the Appellate Tribunal may,
by general or special order direct, any of its
officers or employees or any other person
authorised by it to inquire, appeal before it and
to report to it in such manner as may be
specified in the order.
Right to Legal Representation
● A party to any proceeding or appeal either
appear in person or authorise one or more
chartered accountants or company secretaries
or cost accountants or legal practitioners or
any other person to present his case before the
Tribunal or the Appellate Tribunal
Limitation
● The provisions of the Limitation Act, 1963
shall, as far as may be, apply to proceedings or
appeals before the Tribunal or the Appellate
Tribunal
Institution of Proceedings, Petition, Appeals
Etc. Before NCLT
Procedure of Appeal (Part III of the National
Company Law Tribunal Rules, 2016)

1 Appeal or petition or application shall be in

English and in case it is in some other Indian
language, it shall be accompanied by a copy
translated in English
2 Title shall state “Before the National
Company Law Tribunal” and shall specify the
Bench to which it is presented
3 Shall be divided into paragraphs and shall be
numbered consecutively
4 If Saka or other dates are used, corresponding
dates of Gregorian Calendar shall be given
5 Full name, parentage, age, description of each
party shall also be set out at the beginning of
the appeal or petition or application
6 The names of parties shall be numbered
consecutively
7 These numbers shall not be changed and in the
event of the death of a party
8 Where fresh parties are brought in, they may
be numbered consecutively in the particular
category
9 Every proceeding shall state immediately after
the cause title the provision of law under
which it is preferred.
Alteration
Every interlineations, eraser or correction or
deletion in any appeal or petition or
application or document shall be initialled by
the party or his authorised representative
presenting it
Presentation of petition or appeal
1 Every petition, application, and appeal shall be
presented in triplicate in the prescribed form
with stipulated fee at the filing counter
2 It shall be accompanied by documents duly
certified by the authorised representative or
advocate filing the petition or application or
appeal
3 All the documents shall be accompanied by an
index in triplicate containing their details and
the amount of fee paid
4 Sufficient number of copies application shall
also be filed for service on the opposite party
as prescribed
5 In the pending matters, all applications shall
be presented after serving copies thereof in
advance on the opposite side
6 Processing fee prescribed by these rules
Endorsement and Verification
At the foot of every petition or appeal or
pleading there shall appear the name and
signature of the authorised representative
Interlocutory Application
Every Interlocutory application hall be in
prescribed form and the requirements
prescribed in that behalf shall be complied
with by the applicant, besides filing an
affidavit supporting the application.
Institution of Appeals - Procedure Before
National Company Law Appellate Tribunal

Procedure of Appeal (Part III of the National

Company Law Appellate Tribunal Rules, 2016)
(Note: Same points as given in Institution of
Proceedings, Petition, Appeals Etc. Before
NCLT Except point 2)
Point No 2 - The cause title shall state “Before the
National Company Law Appellate Tribunal” and
shall specify the Bench to which it is presented
Alteration – Same as NCLT
Presentation of petition or appeal
1 Every appeal shall be presented in Form
NCLAT-1 in triplicate by the appellant or
petitioner or applicant or respondent, as the
case may be
2 Every appeal shall be accompanied by a
certified copy of the impugned order
3 All documents filed shall be accompanied
by an index in triplicate containing their
details and the amount of fee paid
4 Sufficient number of copies application
shall also be filed for service on the
opposite party as prescribed
5 In the pending matters, all applications shall
be presented after serving copies thereof in
advance on the opposite side
6 Processing fee prescribed by these rules

Endorsement and Verification

At the foot of every petition or appeal or
pleading there shall appear the name and
signature of the authorised representative
1 Appearance of authorised representative
A party to any proceedings or appeal before
the Appellate Tribunal may either appear in
person or authorise one or more chartered
accountants or company secretaries of cost
accountants or legal practitioners of any
other person to present his case before the
Appellate Tribunal.
2 Where an advocate is engaged to appear for
and on behalf of the parties, he shall submit
Vakalatnama.
3 The professionals like chartered accountants
or company secretaries or cost accountants
shall submit Memorandum of Appearance
4 While appearing before the Appellate
Tribunal, the authorised representative shall
wear the same professional dress as
prescribed in their Code of Conduct
Section 435 – Special Courts
The Central Government may, for the purpose of
providing speedy trial of offences except under
section 452 shall establish as many Special Courts
as may be necessary
Special court consists of –
● A single judge holding office as Session Judge
or Additional Session Judge for offences
punishable under this Act with imprisonment
of 2 years or more;
● A Metropolitan Magistrate or Judicial
Magistrate of First Class, in the case of other
offences
Section 436 – Offences Triable by Special
Courts
● All offences specified under section 435 shall
be triable only by the Special Court
established for the area in which the registered
office of the company in relation to which the
offence is committed
 ● When trying an offence under this Act, a
Special Court may also try an offence other
than an offence under this Act with which the
accused may, under the Code of Criminal
Procedure, 1973 be charged at the same trial
● The Special Court may, if it thinks fit, try in a
summary way any offence under this Act
which is punishable with imprisonment for a
term not exceeding three years
Section 438 - Application of Code to
Proceedings before Special Court
● The provisions of the Code of Criminal
Procedure, 1973 shall apply to the proceedings
before a Special Cour
● The Special Court shall be deemed to be a
Court of Session or the court of Metropolitan
Magistrate or a Judicial Magistrate of the First
Class, and the person conducting a prosecution
before a Special Court shall be deemed to be a
Public Prosecutor
 CHAPTER 13
ARBITRATION & CONCILIATION ACT,
1996

Introduction
● The history of the law of arbitration in India
commences with Act VIII of 1859 which
codified the procedure of Civil Courts
● The Arbitration and Conciliation Act, 1996
aims at streamlining the process of arbitration
and facilitating conciliation in business matters
● With a view to overcome the difficulties,
Arbitration and Conciliation (Amendment)
Act, 2015 passed by the Parliament

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
Arbitrator
The term “arbitrator” is not defined in the
Arbitration and Conciliation Act. But “arbitrator”
is a person who is appointed to determine
differences and disputes between two or more
parties by their mutual consent
Usually, the parties themselves appoint the
arbitrator or arbitrators. In certain cases, the Court
can appoint an arbitrator or umpire
Arbitral Award
As per Section 2(1)(c), “arbitral award” includes
an interim award. (Like judgement in case of
courts)
Arbitral Tribunal
“Arbitral tribunal” means a sole arbitrator or a
panel of arbitrators
Section 7 – Arbitration Agreement
● 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 agreement.
Section 8 - Power to Refer Parties to
Arbitration where there is an Arbitration
Agreement
● If it is decided that a matter has to be decided
through arbitration and if an agreement is
available in that regard, then court can refer
such case and court will not entertain such
cases
Section 9 – Interim Measures by Court
● It states that a party may, before, or during
arbitral proceedings or at any time after
making of the arbitral award but before it is
enforced in accordance with section 36, apply
to a court-
● for the appointment of a guardian; the
preservation, interim custody or sale of any
goods; securing the amount in dispute in the
arbitration etc
● Where, before the commencement of the
arbitral proceedings, a Court passes an order
for any interim measure of protection under
the circumstances mentioned above, 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
under the circumstances mentioned above,
unless the Court finds that circumstances exist
which may not render the remedy provided
under section 17 effective
Number of Arbitrators
● Parties are free to determine the number of
arbitrators, provided that such number shall
not be an even number

Appointment of Arbitrators
Section Provision
11(1) A person of any nationality may be an
arbitrator
11(2) The parties are free to agree on a procedure for
appointing the arbitrator
11(3) If 3 are to be appointed, each party shall
appoint one arbitrator, and the two appointed
arbitrators, shall appoint the third arbitrator
who shall act as the presiding arbitrator
11(3A) The Supreme Court and the High Court shall
have the power to designate, arbitral
institutions, from time to time
11(4) If parties fail to appoint or 2 arbitrators fail to
appoint presiding arbitrator, shall be appointed
by SC in case of international arbitration or HC
in case of domestic arbitration
11(8) Before appointment, arbitral institution shall
seek a disclosure in writing from the
prospective arbitrator with regard to-
any qualifications required
considerations as are likely to secure the
appointment of an independent and impartial
arbitrator
11(11) where more than one request has been made to
different arbitral institutions the arbitral
institution to which the request has been first
made shall be competent to appoint.
11(13) an application for appointment of an arbitrator
or arbitrators shall be disposed of by the arbitral
institution within a period of thirty days from
the date of service of notice
11(14) the arbitral institution shall determine the fees
of the arbitral tribunal
12(1) The arbitrator shall disclose in writing any
circumstances -
Such as the existence either direct or indirect,
of any past or present relationship with or
interest in any of the parties or in relation to the
 subject matter in dispute, whether financial,
business, professional or other kind; and
which are likely to affect his ability to devote
sufficient time to the arbitration
12(3) an arbitrator may be challenged only if,
circumstances exist that give rise to justifiable
doubts as to his independence
he does not possess the qualifications agreed
12(4) a party may challenge an arbitrator appointed
by him only for reason, of which he becomes
aware after the appointment has been made.
13 Challenge Procedure
13(1) the parties are free to agree on a procedure for
challenging an arbitrator.
13(2) a party who intends to challenge an arbitrator
shall, within 15 days after becoming aware of
the constitution of the arbitral tribunal or after
becoming aware of any circumstances referred
to in section 12(3), send a written statement of
the reasons for the challenge to the arbitral
tribunal
13(4) if a challenge under any procedure agreed upon
by the parties is not successful, the arbitral
tribunal shall continue the arbitral proceedings
and make an arbitral award
14(1) The mandate of an arbitrator shall terminate if
he becomes de facto unable to perform his
 functions. Mandate is also terminated, if he
withdraws from his office
14(2) If there is a controversy about an arbitrator’s
inability a party may seek intervention of the
Court
15 Termination of Mandate and Substitution of
Arbitrator
● In addition to the circumstances referred to
in Section 13 or Section 14, the mandate of
an arbitrator shall terminate,
o where he withdraws from office for any
reasons; or
o by or pursuant to agreement of the
parties.
● Where the mandate of an arbitrator
terminates, a substitute arbitrator shall be
appointed according to the rules that were
applicable to such appointment being
replaced.
16(1) The arbitral tribunal may rule on its own
jurisdiction, including ruling on any objections
with respect to the existence or validity of the
arbitration agreement
17 Interim Measures Ordered by Arbitral
Tribunal - It provides that a party may, during
the arbitral proceedings apply to the arbitral
tribunal –
 ● for the appointment of a guardian for a
minor or person of unsound mind for the
purposes of arbitral proceedings; or
● for an interim measure of protection of any
goods or securing the amount in dispute etc
18 the parties shall be, treated with equality and
each party shall be given a full opportunity to
present his case
19 It deals with determination of rules of
procedure like –tribunal shall not be bound by
the Code of Civil Procedure, 1908; parties are
free to agree on the procedure; Failing any
agreement on procedure, tribunal shall conduct
the proceedings in the manner it considers
appropriate
20 Place of Arbitration - It provides that the
parties are free to agree on the place of
arbitration
21 Commencement of Arbitral Proceedings -
The arbitral proceedings in respect of a
particular dispute commence on the date on
which a request for that dispute to be referred
to arbitration is received by the respondent.
22 Language - It provides that the parties are free
to agree upon the language or languages to be
used in the arbitral proceedings. Arbitral
tribunal may order that any documentary
 evidence shall be accompanied by a translation
into the language or languages agreed upon by
the parties or determined by the arbitral tribunal
23 Statement of Claim & Defence
23(1) It provides that 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
23(2) It states that the parties may submit with their
statements all documents they consider to be
relevant
23(2A) It provides that the respondent, in support of his
case, may also submit a counter claim or plead
a set -off
23(3) It states that unless otherwise agreed by the
parties, either party may amend or supplement
his claim or defence during the course of the
arbitral proceedings
23(4) statement of claim and defence under this
section shall be completed within a period of
six months from the date the arbitrator received
notice of appointment
24 Hearings and Written Proceedings
24(1) It provides that 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
24(2) Parties shall be given sufficient advance notice
of any hearing and of any meeting of the
arbitral tribunal for the purposes of inspection
24(3) 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
25 Default of a Party
A party fails to appear an oral hearing or to
produce documentary evidence. The arbitral
tribunal may continue the proceedings and
make the arbitral award on the evidence before
it.
26 Expert Appointed by Arbitral Tribunal
26(1) 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
26(2) if a party so requests or if the arbitral tribunal
considers it necessary, the expert shall, after
delivery of his written or oral report, participate
in an oral hearing where the parties have the
opportunity to put questions to him
26(3) the expert shall, on the request of a party, make
available to that party for examination all
documents, goods or other property in the
possession of the expert which he used to
prepare his report
27 Court Assistance in Taking Evidence
● The arbitral tribunal, or a party with the
approval of the arbitral tribunal, may apply
to the Court for assistance in taking
evidence
● Court may, within its competence and
according to its rules on taking evidence,
execute the request
● Court may, while making an order, issue
the same
processes to witnesses as it may issue in
suits tried before it
● Persons failing to attend shall be subject to
the like disadvantages, penalties and
punishments by order of the Court
28 Rules Applicable to Substance of Dispute
● in an arbitration other than an international
commercial arbitration, the arbitral tribunal
shall decide the dispute submitted to
arbitration in accordance with the
substantive law for the time being in force
in India
 ● in international commercial arbitration, the
arbitral tribunal shall decide the dispute in
accordance with the rules of law designated
by the parties as applicable
to the substance of the dispute
● the arbitral tribunal shall decide ex aequo et
bono or as amiable compositeur only if the
parties have expressly authorised it to do so
29 ● Unless otherwise agreed, in arbitral
proceedings with more than one arbitrator,
any decision of the arbitral tribunal shall be
made by a majority of all its members.
● The award shall be made within a period of
twelve months from the date of completion
of pleadings
29A ● If the award is made within a period of six
months from the date the arbitral tribunal
enters upon the reference, the arbitral
tribunal shall be entitled to receive such
amount of additional fees as the parties
may agree
● The parties may, by consent, extend the
period specified for making award for a
further period not exceeding six months
● the award is not made within the period
specified or the extended period specified
 the mandate of the arbitrator(s) shall
terminate unless the Court has extended the
period
● where an application is pending, the
mandate of the arbitrator shall continue till
the disposal of the said application
● it shall be open to the Court to impose
actual or exemplary costs upon any of the
parties under this section
● an application filed for extension of time
period shall be disposed of by the Court
within a period of sixty days from the date
of service of notice on the opposite party
29B Fast Track Procedure
● The parties to an arbitration agreement,
may, at any stage either before or at the
time of appointment of the arbitral tribunal,
agree in writing to have their
dispute resolved by fast-track procedure
Procedure followed –
● tribunal shall decide the dispute on the
basis of written pleadings, documents and
submissions filed by the parties without
any oral hearing
● shall have power to call for any further
information or clarification from the parties
 ● An oral hearing may be held only, if, all the
parties make a request or if the arbitral
tribunal considers it necessary
● Fees payable to the arbitrator and the
manner of payment of the fees shall be
such as may be agreed between the
arbitrator and the parties
30 Settlement
● If, during arbitral proceedings, the parties
settle the dispute, the arbitral tribunal shall
terminate the proceedings and, if requested
by the parties and not objected to by the
arbitral tribunal, record die settlement in
the form of an arbitral award on agreed
terms.
● An arbitral award on agreed terms shall be
made in accordance with section 31 and
shall state that it is an arbitral award
31 ● Form and Contents of Arbitral Award
● Award shall be made in writing and shall be
signed by the members
● The proceedings with more than one
arbitrator, the signatures of the majority of
all the members of the arbitral tribunal shall
be sufficient
 ● The arbitral award shall state the reasons
upon which
it is based unless parties agreed not to
provide or settled under section 30
● award shall state its date and the place of
arbitration
● a signed copy of the award shall be
delivered to each party
● during the arbitral proceedings, tribunal
may make an interim arbitral award on any
matter
● the arbitral tribunal may include in the sum
for which the award is made interest, at
such rate as it deems reasonable
Regime for Costs
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, notwithstanding anything
contained in the Code of Civil Procedure, 1908,
shall have the discretion to determine,
● whether costs are payable by one party to
another;
● the amount of such costs; and
● when such costs are to be paid
32 Termination of Proceedings
 The arbitral proceedings shall be terminated by
the final arbitral award or by an order of the
arbitral tribunal the arbitral tribunal shall issue
an order for the termination of the arbitral
proceedings where -
● the claimant withdraws his claim
● the parties agree on the termination
● the arbitral tribunal finds that the
continuation of the proceedings has for any
other mason become unnecessary or
impossible
33 Correction and Interpretation of Award;
Additional Award
It provides that within 30 days from the receipt
of the arbitral award if agreed by the parties, a
party, with notice to the other party, may
request the arbitral tribunal to give an
interpretation of a specific point or part of the
award.
The arbitral tribunal may be requested to make
an additional arbitral award as to claims
presented in the arbitral proceedings but
omitted from the arbitral award
34 Application for Setting Aside an Arbitral
Award - An arbitral award may be set aside by
the Court only if a party can prove that -
 a party was under some incapacity; agreement
is not valid; the party making the application
was not given proper notice of the appointment
of an arbitrator; the arbitral award deals with a
dispute not contemplated within the terms of
the submission to arbitration; the composition
of the arbitral tribunal was not in accordance
with the agreement of the parties or
If the court finds that –
subject-matter of the dispute is not capable of
settlement by arbitration; the arbitral award is
in conflict with the public policy of India
● An application for setting aside may not be
made after three months have elapsed from
the date on which the party making that
application had received the arbitral award
● An application under this section shall be
filed by a party only after issuing a prior
notice to the other party
● An application under this section shall be
disposed of expeditiously, and in any event,
within a period of one year from the date
on which the notice is served upon the
other party
35 An arbitral award made under the Act is final
and binding on the parties and persons claiming
under them respectively
 Where the time for making an application to set
aside the arbitral award under section 34 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
37 Appealable orders for –
● granting or refusing to grant any measure
under section 9;
● setting aside or refusing to set aside an
arbitral award under section 34
No second appeal shall lie from an order passed
in appeal under this section, but nothing in this
section shall affect or take away any right to
appeal to the Supreme Court
38 Deposits
The arbitral tribunal may fix the amount of the
deposit or supplementary deposit, as the case
may be, as an advance for the costs referred to
in section 31, which it expects will be incurred
in respect of the claim submitted to it
39 The arbitral tribunal shall have a lien on the
arbitral award for any unpaid costs of the
arbitration
40 The mandate of an arbitrator shall not be
terminated by the death of any party by whom
he was appointed
 42 Jurisdiction – with respect to an arbitration
agreement
any application under this Part 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
42A The arbitrator, the arbitral institution and the
parties to the arbitration agreement shall
maintain confidentiality of all arbitral
proceedings
42B No suit or other legal proceedings shall lie
against the arbitrator for anything which is in
good faith done
43 For the purposes of this section and the
Limitation Act, 1963, an arbitration shall be
deemed to have commenced on the date
referred in section 21.
Where the Court orders that an arbitral award
be set
aside, the period between the commencement
of the, arbitration and the date of the order of
the Court shall be excluded in computing the
time prescribed by the Limitation Act, 1963
ARBITRATION COUNCIL OF INDIA (ACI)
43B Empowers the Central Government to establish
the Arbitration Council of India to perform the
 duties and discharge the functions under the
Arbitration Conciliation Act, 1996.
43C Composition of Council
a person, who has been, a Judge of the Supreme
Court or, Chief Justice of a High Court or, a
Judge of a High Court or an eminent person
shall be appointed by CG as chairperson
Members include - An eminent arbitration
practitioner, an eminent academician, Secretary
to the Government of India in the Department
of Legal Affair, Secretary to the Government of
India in the Department of Expenditure,
Ministry of Finance or his representative and
Chief Executive Officer
The salaries, allowances and other terms and
conditions of the Chairperson and Members as
may be prescribed by the Central Government.
The Part-time Member shall be entitled to such
travelling and other allowances as may be
prescribed by the Central Government
43D Duties and functions of Council

Duty
It shall be the duty of the Council to take all
such measures as may be necessary to promote
and encourage arbitration, mediation,
conciliation or other alternative dispute
resolution mechanism

Functions
● frame policies governing the grading of
arbitral institutions;
● recognise professional institutes providing
accreditation of arbitrators;
● review the grading of arbitral institutions
and arbitrators;
● hold training, workshops and courses in the
area of arbitration in collaboration of law
firms, law universities and arbitral
institutes;
● frame, review and update norms to ensure
satisfactory level of arbitration and
conciliation;
● make recommendations to the Central
Government on various measures to be
adopted to make provision for
easy resolution of commercial disputes;
● promote institutional arbitration by
strengthening arbitral institutions;
● conduct examination and training on
various
subjects relating to arbitration and
conciliation and award certificates thereof;
 ● establish and maintain depository of
arbitral awards made in India;
43E Vacancies, etc., not to invalidate proceedings
of Council
No act or proceeding of the Council shall be
invalid merely by reason of—
● any vacancy or any defect, in the
constitution of the Council;
● any defect in the appointment of a person
acting as a Member of the Council; or
● any irregularity in the procedure of the
Council not affecting the merits of the case.
43F Resignation of Members
The Chairperson or the Full-time or Part-time
Member may, by notice in writing, under his
hand addressed to the Central Government,
resign his office.
43G Removal of Member –
The Central Government may, remove a
member from his office if he––
● is an undischarged insolvent; or has
engaged at any time (except Part-time
Member), during his term of office, in any
paid employment; or has been convicted of
an offence which, in the opinion of the
Central Government, involves moral
 turpitude; or has acquired such financial or
other interest as is likely to affect
prejudicially his functions as a Member; or
has so abused his position as to render his
continuance in office prejudicial to the
public interest; or has become physically or
mentally incapable of acting as a Member
43H Appointment of experts and constitution of
committee by the Council
43I Council shall make grading of arbitral
institutions on the basis of criteria relating to
infrastructure, quality and calibre of arbitrators,
performance and compliance of time limits for
disposal of domestic or international
commercial arbitrations, in such manner as may
be specified by the regulations
43J Norms for accreditation
Qualifications, experience and norms for
accreditation of arbitrators shall be through
Regulations
43K Depository of awards
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
43M Chief Executive Officer
 ● It 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
ENFORCEMENT OF CERTAIN FOREIGN
ARBITRAL AWARDS
Chapters I and II of Part II of the Arbitration
and Conciliation Act, 1996 deal with the
enforcement of certain foreign awards made
under the New York Convention and the
Geneva Convention, respectively.
45 Power of Judicial Authority to Refer Parties
to Arbitration
Judicial authority, when seized of an action in a
matter in respect of which the parties have
made an agreement referred to in section 44,
shall, at the request of one of the parties or any
person claiming through or under him, refer the
 parties to arbitration, unless it prima facie finds
that the said agreement is null and void,
inoperative or incapable of being performed
46 When foreign award binding
Any foreign award which would be enforceable
under this Chapter shall be treated as binding
for all purposes on the persons as between
whom it was made, and may accordingly be
relied on by any of those persons by way of
defence
47 Evidence
It provides that the party applying for the
enforcement of a foreign award shall, at the
time of the application, produces before the
court-
● the original award or a copy thereof, duly
authenticated in the manner required by the
law of the country in which it was made;
● the original agreement for arbitration or a
duly certified thereof; and
● such evidence as may be necessary to prove
that the award is a foreign award
50 Appealable Orders
Notwithstanding anything contained in any
other law
 for the time being in force, an appeal shall lie
from the order refusing to-
● refer the parties to arbitration under section
45;
● enforce a foreign award under section 48,
to the court authorised by law to hear
appeals from such order
It prohibits a second appeal from an order
passed in appeal
54 Power of Judicial Authority to Refer Parties
to Arbitration
55 Foreign Awards when Binding
Any foreign award which would be enforceable
under this Chapter shall be treated as binding
for all purposes on the persons as between
whom it was made, and may accordingly be
relied on by any of those persons by way of
defence, set off or otherwise in any legal
proceedings in India and any references in this
Chapter to enforcing a foreign award shall be
construed as including references to relying on
an award
56 Evidence
Enforcement of a foreign award shall, at the
time of application produce before the
Court-
 ● the original award or a copy thereof duly
authenticated. in the manner required by
the law of the country in which it was
made;
● evidence proving that the award has
become final; and
● such evidence as may be necessary to prove
that the conditions mentioned in section 57
are satisfied
57 Conditions for Enforcement of Foreign
Awards
It provides that in order that a foreign
award may be enforceable under the Act, it
shall be necessary that –
● The award has been made in pursuance of a
submission to arbitration which is valid
under the law applicable thereto
● The subject matter of the award is capable
of settlement by arbitration under the law
of India
● 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
 ● 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
● The enforcement of the award is not
contrary to the public policy or the law of
India
CONCILIATION
● 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
61 Application & Scope
● Arbitration and Conciliation Act, 1996
shall apply to conciliation of disputes
arising out of legal relationship, whether
 contractual or not and to all proceedings
relating thereto
62 Commencement of Conciliation Proceedings
● The party initiating conciliation shall send
to the other party a written invitation to
conciliate under this Part, briefly
identifying the subject of the dispute
● Conciliation proceedings shall commence
when the other party accepts in writing the
invitation to conciliate
● If the other party rejects the invitation,
there will be no conciliation proceedings
Number of Conciliators
● There shall be one conciliator unless the
parties agree that there shall be two or three
conciliators. Where there is more than one
conciliator they ought to, as a general rule,
to act jointly
63 Appointment
● in conciliation proceedings with one
conciliator, the parties may agree on the
name of a sole conciliator;
● in conciliation proceedings with two
conciliators, each party may appoint one
conciliator
 ● if 3 conciliators, three conciliators, each
party may appoint one conciliator and the
parties may agree on the name of the third
conciliator who shall act as the presiding
conciliator
65 Submission of Statements to Conciliator
● The conciliator, upon his appointment, may
request each party to submit to him a brief
written statement describing the general
nature of the dispute and the points at issue
● The conciliator may request each party to
submit to him a further written statement of
his position and the facts and grounds in
support thereof, supplemented by any
documents and other evidence that such
party deems appropriate
● At any stage of the conciliation
proceedings, the conciliator may request a
party to submit to him such additional
information as he deems appropriate
66 The conciliator is not bound by the Code of
Civil Procedure, 1908 or the Indian Evidence
Act, 1872
67 Role of Conciliator
● Conciliator shall assist the parties in an
independent and impartial manner in their
 attempt to reach an amicable settlement of
their dispute
● Conciliator may conduct the conciliation
proceedings in such a manner as he
considers appropriate, taking into account
the circumstances of the case
● The conciliator may, at any stage of the
conciliation proceedings, make proposals
for a settlement of the dispute. Such
proposal need not be in writing
68 In order to facilitate the conduct of the
conciliation proceedings, the parties, or the
conciliator with the consent of the parties, may
arrange for administrative assistance by a
suitable institution or person
69 The conciliator may invite the parties to meet
him or may communicate with them orally or in
writing. He may meet or communicate with the
parties together or with each of them separately
70 Disclosure of Information
When the conciliator receives factual
information concerning the dispute from a
party, he shall disclose the substance of that
information to the other party in order that the
other party may have the opportunity to present
any explanation which he considers appropriate
 When a party gives any information to the
conciliator, subject to a specific condition that
it be kept confidential, the conciliator shall not
disclose that information to the other party
71 The parties shall in good faith co-operate with
the conciliator and, in particular, shall
endeavour to comply with requests by the
conciliator to submit written materials, provide
evidence and attend meetings
72 Each party may, on his own initiative or at the
invitation of the conciliator, submit to the
conciliator suggestions for the settlement of the
dispute
73 Settlement Agreement
● When it appears to the conciliator that there
exist elements of a settlement which may
be acceptable to the parties, he shall
formulate the terms of a possible settlement
and submit them to the parties for their
observations.
● If the parties reach agreement on a
settlement of the dispute, they may draw up
and sign a written settlement agreement
● When the parties sign the settlement
agreement, it shall be, final and binding on
the parties and persons claiming under
them respectively
 ● Conciliator shall authenticate the settlement
agreement and furnish a copy thereof to
each of the parties
74 The settlement agreement shall have the same
status and effect as if it is an arbitral award on
agreed terms on the substance of the dispute
rendered by an arbitral tribunal under section
30
75 The conciliator and the parties shall keep
confidential all matters relating to the
conciliation proceedings
76 Termination of Proceedings
● By the signing of the settlement agreement
by the parties, on the date of the agreement
● By a written declaration of the conciliator,
after consultation with the parties, to the
effect that further efforts at conciliation are
no longer justified, on the date of the
declaration
● By a written declaration of the parties
addressed to the conciliator to the effect
that the conciliation proceedings are
terminated, on the date of declaration
● By a written declaration by a party to the
other party and conciliator that the
 proceedings are terminated on the date of
declaration
77 Parties shall not initiate, during the conciliation
proceedings, any arbitral or judicial
proceedings in respect of a dispute that is the
subject- matter of the conciliation
78 Costs - Upon termination of the conciliation
proceedings, the conciliator shall fix the costs
of the conciliation and give written notice
thereof to the parties
The costs shall be borne equally by the parties
unless the settlement agreement provides for a
different apportionment. All other expenses
incurred by a party shall be borne by that party.
79 Deposits - The conciliator may direct each
party to deposit an equal amount as an advance
for the costs. During the course of the
conciliation proceedings, the conciliator may
direct supplementary deposits in an equal
amount from each party. If the required
deposits are not paid in full by both parties
within thirty days, the conciliator may suspend
the proceedings
80 The conciliator shall not act as an arbitrator or
as a representative or counsel of a party in any
arbitral or judicial proceeding in respect of a
 dispute that is the subject of the conciliation
proceedings.
81 This section provides that the parties shall not
rely on or introduce as evidence in arbitral or
judicial proceedings, whether or not such
proceedings relate to the dispute that is the
subject of the conciliation proceedings
82 The High Court may make rules consistent with
this Act as to all proceedings before the Court
under this Act
83 If any difficulty arises in giving effect to the
provisions of this Act, the Central Government
may, by order published in the Official Gazette,
make such provisions, not inconsistent with the
provisions of this Act as appear to it to be
necessary or expedient for removing the
difficulty
84 The Central Government may, by notification
in the Official Gazette, make rules for carrying
out the provisions of this Act
 ADR ● Courts are not in a position to bear the
(Alternat entire burden of justice system
e Dispute ● A very large number of disputes lend courts
Resolutio to resolution by alternative modes such as
n) arbitration, mediation, conciliation,
negotiation, etc.
● The ADR processes provide procedural
flexibility save valuable time and money
and avoid the stress of a conventional trial.
● There is, therefore, an urgent need to
establish and promote ADR services for
resolution of both domestic and
international disputes in India
● The International Centre for Alternative
Dispute Resolution (ICADR) is a unique
centre in this part of the world that makes
provision for promoting teaching and
research in the field of ADR as also for
offering ADR services to parties not only in
India but also to parties all over the world
Areas where the ADRs work –
● Almost all disputes including commercial,
civil, labour and family disputes, in respect
of which the parties are entitled to conclude
a settlement, can be settled by an ADR
procedure
● They have been proven to work especially
in respect of disputes involving joint
ventures, construction projects, partnership
differences, intellectual property, personal
injury, product liability, professional
liability, real estate, securities, contract
interpretation and performance and
insurance coverage.
 CHAPTER 14
INDIAN STAMP ACT, 1889
Introduction
● The Indian Stamp Act, 1899 is the law relating to
stamps which consolidates and amends the law
relating to stamp duty
Objective
● It is a fiscal legislation and generating revenue by
prescribing a stamp duty payable on certain
instruments is the main objective of the Act
Definitions

Banker
“Banker” includes a bank and any person acting as a
banker [Section 3 of the Negotiable Instruments Act
defines a banker as including persons or a corporation
or company acting as bankers

Bill of Lading
“Bill of Lading” includes a ‘through bill lading’ but
does not include a mate’s receipt
Conveyance
The term “conveyance” includes a conveyance on sale
and every instrument by which property (whether
movable or immovable) is transferred inter vivos1 and
which is not otherwise specifically provided for by
Schedule. It does not include a will
Instrument
Section 2(14) defines an “instrument” to include every
document by which any right or liability is, or purports
to be, created, transferred, limited, extended,
extinguished or recorded.
(The definition is an inclusive definition and not
restricted only to specifically mentioned documents)
Points to be noted for a better understanding
● An unsigned draft document is not an “instrument
(no right creation)
● An entry in a register, containing the terms of
hiring of machinery is an “instrument”, where it is
authenticated by the thumb impression of the hirer.
● A letter which acknowledges receipt of a certain
sum as having been borrowed at a particular rate of
interest and for a particular period and that it will
be repaid with interest on the due date is an
“instrument”.
● Photocopy of an agreement is not an instrument

Section 3 - Instruments Chargeable with Duty

● According to this section, an instrument is
chargeable with duty of the amount specified in
Schedule I, which mentions a list of instruments
liable to duty
● The instruments which are not mentioned in
Schedule I are not chargeable to duty
The following instruments shall be chargeable with a
duty of the amount indicated in that Schedule as the
proper duty therefor, namely:

Documents on which duty is not chargeable are as

follows
● Instrument executed by or on behalf of or in favour
of the Government
● Any instrument for the sale, transfer or disposition
of any ship or vessel
● Any instrument executed by, or, on behalf of, or in
favour of, SEZ or developer of SEZ
[A mere document cannot be made chargeable to stamp
duty. NO INSTRUMENT = NO DUTY]
Substance and Description
● It is the substance of the transaction as contained in
the instrument and not the form of the instrument,
that determines the stamp duty, though the duty is
leviable on the instrument and not on the
transaction
 ● Where a single instrument contains several
purposes, the instrument as a whole should be read
to find out its dominant purpose
● To determine whether a document is sufficiently
stamped the Court must look at the document itself,
as it stands

Section 4 - Extent of Liability of Instruments to Duty

(Several Instruments In Single Transaction Of Sale,
Mortgage Or Settlement)
● In the case of any sale, mortgage or settlement,
several instruments are employed for completing
the transaction, the principal instrument only shall
be chargeable with the duty prescribed in Schedule
I, for the sale, mortgage or settlement.
● Each of the other instruments called as subsidiary
instruments shall be chargeable with the duty of
Re.1.
● Parties are free to determine any instrument as
principal instrument and remaining as subsidiary.

Section 5 - Instruments Relating to Several Distinct

Matters
● An instrument comprising or relating to several
distinct matters is chargeable with the aggregate
amount of the duties with which each separate
instrument, relating to one of such matters, would
be chargeable under the Act
 ● The Section deals with multifarious instruments.
The expression “distinct matter” means distinct
transactions (matters of different kind)
● Section 5 applies even where the two (or more)
matters are of the same description

Principal and ancillary

● If an instrument taken with reference to its primary
object is exempted then stamp duty cannot be
charged merely because matter ancillary to it is
included and that matter is chargeable to stamp
duty.
● 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.
● Thus, the test usually adopted is the test of “leading
object”. If there is only one leading object, Section
5 will not apply. But if there are several distinct
contracts, each is taxable

Section 6 – Instruments coming with several

descriptions
● There may be cases where an instrument may come
under several descriptions in Schedule-I (contains
rate of stamp duty) to the Act.
● In such a circumstance, Section 6 of the Act
provides that the instrument shall, where the duties
chargeable thereunder are different, be chargeable
only with the highest of such duties.
 ● Section 6 applies only where the instrument
contains only one matter, but falls within two or
more items in the Schedule
● In such cases, Section 6 clearly provides that the
highest of the duties mentioned against the various
descriptions against which the instrument is likely
to fall is to be paid.

Section 8 – Bonds, Debentures, etc issued under The

Local Authorities, 1879
● It provides that any local authority raising a loan
under the provisions of the Local Authorities Loans
Act, 1879 or of any other law for the time being in
force by the issue of bonds, debentures or other
securities, shall, in respect of such loans, be
● chargeable with a duty of one percent on the total
amount of the bonds, debentures or other securities
issued by it.
● Such bonds, debentures or other securities need not
be stamped and shall not be chargeable with any
further duty on renewal, consolidation, sub-division
or otherwise

Securities dealt in Depository not liable to Stamp

Duty
As per Section 8A of the Act—
● an issuer, by the issue of securities to one or more
depositories shall, in respect of such issue, be
chargeable with duty on the total amount of
 security issued by it and such securities need not be
stamped;
● where an issuer issues certificate of security under
sub-section (3) of Section 14 of the Depositories
Act, 1996, on such certificate duty shall be payable
as is payable on the issue of duplicate certificate
under this Act;

Section 8B – Corporatisation and Demutualisation

Schemes and Related Instruments not liable to duty

Section -9 Reduction, Remission and Compounding

of Duties

It empowers the Central and State Governments

● To remit or reduce any duties payable on any
instrument
● To provide for the composition or consolidation of
duties of policies of insurance

Section 10 - Methods/Modes of Stamping

● It provides that all duties with which any
instrument is chargeable shall be paid, and such
payment shall be indicated on such instrument, by
means of stamps according to the provisions
contained in the Act, or when no such provision is
applicable thereto, as the State Government
concerned may by rule, direct
Types of Stamping

Adhesive Stamping
This Section provides that the following instruments
may be stamped with adhesive stamps, namely –
● Instruments chargeable with the duty not exceeding
10 paise, except bills of exchange payable
otherwise than on demand
● The bills of exchange and promissory notes drawn
or made out of India
● Instruments relating to entry as an advocate, vakil
or attorney on the role of High Court
● Notarial acts
● Transfers by endorsement of shares in any
incorporated company or other body corporate.

Cancellation
● any person affixing any adhesive stamp to any
instrument chargeable with duty which has been
executed by another person shall, when affixing
such stamp cancel the same so that it cannot be
used again
● If a person fails to cancel the stamp, he becomes
liable to penalty in accordance with Section 63.
(Maximum ₹100 is the penalty)
● By writing on or across the stamp his name or
initials of his firm along with the date
● Drawing a single line across the stamp
● Drawing of diagonal lines across the stamp with
ends extending on to the paper of document
Impressed Stamps (Sec 13&14)
● 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
● 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.
● An instrument should be written only on that side
on which the stamp is embossed. If the instrument
ends on the reverse side, it is not duly stamped
● If an instrument has 2 or more papers, a portion of
the instrument shall be written on each page
● If any unused stamp papers (extra stamp papers),
should be cancelled in such a manner that it should
not be used again

Denoting Duty (Sec 16)

● When there are more than 1 instrument, i.e., a
principal and 1 or more subsidiary instrument/s, we
need to make an application in writing to the
collector of stamps.
● Collector after going through the application and
instruments, will endorse and acknowledge in
writing that full stamp duty has been received
● The object of this section is to spare parties to an
instrument, the inconvenience of having to produce
the original or principal instrument in order to
 prove that the second instrument has been duly
stamped

Timing of Stamping

Section Provision
20 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.
21&22 ● It provides that in the case of an instrument
chargeable with ad valorem duty in respect of any
stock or 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 thereof on the date of the instrument (if
listed easy to calculate)
 ● If, the shares or stocks are not quoted on any
stock exchange, the valuation has to be based
upon the average of the latest private transactions
● If no dealings, some reliable value to be
considered
23 where interest is expressly made payable by the terms
of the instrument, such instrument shall not be
chargeable with a duty higher than that with which it
would have been chargeable, had no mention of
interest been made therein
23A ● Where an instrument is given upon the occasion
of the deposit of any marketable security by way
of security for money advanced or to be advanced
by way of loan
● It shall be chargeable with duty as if it were an
agreement or memorandum of an agreement,
chargeable with duty as per Schedule I to the Act.
24 It provides that in the case of sale of property subject
to mortgage or other encumbrances, any unpaid
mortgage money or money charged together with the
interest, if any, due on the same shall be deemed to be
part of the consideration for the sale provided that
where property subject to a mortgage is transferred to
the mortgagee, he shall be entitled to deduct from the
duty payable on the transfer the amount of any duty
already paid in respect of the mortgage
25 Deals with the manner of computation of duty in
the case of annuities
 ● where the sum payable is for a definite period so
that the total amount to be paid can be previously
ascertained such total amount;
● where the sum is payable in perpetuity or for an
indefinite time not terminable with any life in
being at the date of such instrument or
conveyance – the total amount which, according
to the terms of such instrument or conveyance
will or may be payable during the period of 20
years calculated from the date on which the first
payment becomes due, and
● where the sum is payable for an indefinite time
terminable with any life in being at the date of
such instrument or conveyance – the maximum
amount which will be or which may be payable as
aforesaid during the period of 12 years calculated
from the date on which the first payment becomes
due
26 When value cannot be ascertained, stamp duty has to
be paid on estimation basis. In such a case, the
executant can value the instrument as he pleases, but
he shall not be entitled to recover under such
document any amount in excess of the amount for
which the stamp duty is sufficient
27 It provides that the consideration and all other facts
and circumstances affecting the chargeability of any
instrument with duty or the amount of duty with which
it is chargeable shall be fully and truly set forth in the
instrument.
 28 Apportionment
28(1) where a person contracts the sale of property as a
whole and thereafter conveys to the purchaser the
property in separate parts, the consideration shall be
apportioned in such manner as the parties think fit and
ad valorem duty shall be paid accordingly
28(2) where the contract is for the sale of a property as a
whole to two or more purchasers jointly or by any
person for himself and others, and the property is
conveyed to them in parts by separate conveyance,
then each distinct part of the consideration shall be
chargeable with ad valorem duty in respect of the
distinct part of the consideration so specified
28(3) Where a person, after contracting to purchase a
property from another and before the property has
been duly conveyed to him, enters into a contract to
sell the property to a third person, and the contract is
given effect to only by one conveyance from the
owner of the property to the sub purchaser directly.
The stamp duty payable is on the consideration paid
by the sub-purchaser.
28(4) Where a person contracts for the sale of property and
before obtaining a conveyance in his favour, enters
into a contract to sell the property in parts to other
persons, the conveyances which may be executed
directly by the owner to each sub-purchaser would be
liable to be charged with duty in respect of the
consideration paid by the sub-purchaser, original price
for the whole and the aggregate price paid by the
sub-purchasers, subject to a minimum duty of Re. 1/-.
28(5) When a person contracts to sell a property to another
person and again contracts to sell the same property to
a third person and such third person obtains a
conveyance first from the seller with whom he had
contracted and later gets another conveyance of the
same property from original seller, the duty is to be
charged on the consideration received by the original
seller subject to a maximum of Rs. 5/-.
29 Persons liable to pay stamp – Persons are free to
decide, if not they can resort to this section
30 Receipts - any person receiving
any money exceeding twenty rupees in amount or
any bill of exchange, cheque or promissory note for an
amount exceeding five hundred rupees or
receiving in satisfaction of a debt any movable
property exceeding five hundred 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
31 It gives the power to the collector to adjudicate as to
the proper stamp duty payable for a particular
instrument. The duty of the Collector is only to
determine the stamp duty payable upon the
instrument.
32 It deals with certificate by the Collector of Stamps as
well as the time limit within which such a certificate
can be given by the Collector of Stamps that when an
instrument is brought to the Collector with an
application for having an opinion as to the proper duty
chargeable
33 Instruments NOT Duly Stamped –
It provides that every person having by law or consent
of parties, authority to receive evidence and every
person in charge of a public office, except an officer of
police before whom any instrument, chargeable in his
opinion, with duty is produced or comes in the
performance of his functions, shall, if it appears to him
that the instrument is not duly stamped, impound the
same
The Section also provides that the instrument must be
impounded, before it can be admitted in evidence.
Once it is admitted in evidence, the instrument cannot
be impounded at a later stage and a court, after it
becomes functus officio, cannot rectify an earlier error
34 Unstamped Receipt
It provides that where the instrument is an unstamped
receipt produced in the course of an audit of any
public account, the officer before whom the receipt is
produced has a discretion either to impound or to
require the receipt to be stamped
35 It provides that no instrument chargeable with
duty shall be –
Admitted as an evidence in the court of law;
Registered; Acted upon; Authenticated by any such
person as aforesaid or by any public officer
Exceptions Under 35
A receipt can be accepted as an evidence by paying
penalty of Re. 1; A document is admissible in
Criminal Court; Any instrument unduly stamped can
be accepted as evidence on payment of penalty of 10
 times of the difference on duty; A document certified
by Collector of Stamps;
36 where an instrument has been admitted in evidence,
such an admission shall not be called in question at
any stage of the same suit or proceeding on the ground
that the instrument has not been duly stamped
37 an opportunity is given to a party, of getting a mistake
rectified when a stamp of proper amount, but of
improper description has been used
38 It deals with instruments impounded under Section 33.
A person impounding an instrument under Section 33
and receiving the same in evidence shall send, to the
Collector of Stamps, an authenticated copy of such
instrument, together with a certificate in writing,
stating the amount of duty and penalty levied in
respect thereof and shall send such amount to the
Collector or to such person as the Collector may
appoint in this behalf
39 It vests the Collector with certain powers to refund
penalty recovered by a court on impounding a
document not duly stamped when produced before it.
40 Collector’s Power to Stamp the Instruments
Impounded
41 It deals with cases where a person, of his own motion
bring it to the Collector’s notice that the instrument is
not duly stamped
42 It deals with cases where duty and penalty, if any, have
been levied and realised by the court or any other
body or by the Collector.
 In such cases, the authority refunding and collecting
the duty and penalty must make an endorsement on
the instrument as to the amount paid and the name and
the residence of the person paying the same.
Upon such certification, the instrument becomes
admissible in evidence
43 This section provides that a levy of a penalty or
payment thereof in respect of an unstamped or
insufficiently stamped document does not necessarily
exempt a person from liability for prosecution for such
offence
44 It deals with the circumstances in which persons
paying duty or penalty may recover the same in
certain cases. For the purpose of such recovery, any
certificate granted in respect of such instruments under
the Act shall be conclusive evidence of the matters
therein certified
45 It deals with power of the Revenue Authority to
refund the penalty in excess of duty payable on
instrument in certain cases. It further empowers the
Chief Controlling Revenue Authority to order refunds.
But this is purely a discretionary power and the Chief
Controlling Revenue Authority cannot be compelled
to exercise his power
46 It provides that where any instrument sent to the
Collector under Section 38 is lost, destroyed during
transmission, the person sending the same, shall not be
liable for such loss, destruction or damage
51 the Act enables the Chief Controlling Revenue
Authority or the Collector if authorised by the Chief
 Controlling Revenue Authority, for such purpose to
allow refunds in cases where refunds of stamps on
printed forms used by bankers, incorporated
companies/bodies corporate if required
55 Debentures
It 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
A debenture shall be deemed to be renewed in the
same terms within the meaning of this section
notwithstanding the following changes:
● the issue of two or more debentures in place of
one original debenture, the total amount secured
being the same;
● the issue of one debenture in place of two or more
original debentures, the total amount secured
being the same;
● the substitution of the name of the holder at the
time of renewal for the name of the original
holder; and
● the alteration of the rate of interest of the date of
payment hereof
57 If any Collector, acting under Sections 31, 40 or 41,
feels doubt as to the amount of duty with which any
instrument is chargeable, he may draw up a statement
of the case, and refer it, with his own opinion thereon,
for the decision of the Chief Controlling Revenue
Authority
 As per Section 57, the Chief Controlling Revenue
Authority may state any case referred to it under
Section 56 or otherwise coming to its notice, and refer
such case, with its own opinion thereon to the High
Court and the same shall be decided by not less than
three Judges of the High Court and the majority
decision shall prevail.
58 If the High Court is not satisfied that the statements
contained in the case are sufficient to enable it to
determine the questions raised thereby, the court may
refer the case back to the Revenue Authority for
further feedback
60 Any subordinate Court can also refer such case to the
High Court like the Revenue Authority but should be
through proper channel
61 Under this section, the Collector has got the power
notwithstanding anything contained in the order of the
lower court, to prosecute a person if any offence
against the Stamp Act which he considers that the
person has committed in respect of such an instrument
63 Any person required by Section 12 to cancel an
adhesive stamp, and failing to cancel such stamp in
the manner prescribed by that section, shall be
punishable with fine which may extend to one
hundred rupees
64 Any person who, with intent to defraud the
Government does any act calculated to deprive the
Government of any duty or penalty under this Act
shall be punishable with fine which may extend to five
thousand rupees
 66 any person shall be punishable with fine which may
extend to Rs. 200/- if he –
receives, or takes credit for any premium or
consideration for any contract of insurance and does
not, within one month after receiving or taking credit
for, such premium or consideration, make out and
execute a duly stamped policy of such insurance; or
makes, executes or delivers out any policy which is
not duly stamped or pays or allows in account, or
agrees to pay or to allow in account, any money upon,
or in respect of, any such policy
67 if any person drawing or executing a bill of exchange
(payable otherwise than on demand) or a policy of
marine insurance purporting to be drawn or executed
in a set of two or more, and not at the same time
drawing or executing on paper duly stamped the
whole number of bills or policies of which such bill or
policy purports the set to consist, shall be punishable
with fine which may extend to one thousand rupees
E-Stamp It is a computer-based application and a secured way
ing of paying Non-Judicial stamp duty to the Government.
The benefits of e-Stamping are e-Stamp Certificate
● can be generated within minutes;
● e- Stamp Certificate generated is tamper proof;
● Easy accessibility and faster processing; Security;
● Cost savings and User friendly
 To achieve the rationalization of stamp duty
structures, the amendments, inter-alia, provide for
the following structural reforms —
i. 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.
ii. In order to prevent multiple incidences of taxation,
no stamp duty shall be collected by the States on
any secondary record of transaction associated with
a transaction on which the depository / stock
exchange has been authorised to collect the stamp
duty.
iii. In the extant scenario, stamp duty was payable by
both seller and buyer whereas in the new system it
is levied only on one side (payable either by the
buyer or by the seller but not by both, except in
case of certain instrument of exchange where the
stamp duty shall be borne by both parties in equal
proportion).
iv. The collecting agents shall be the Stock Exchanges
or authorized Clearing Corporations and the
Depositories.
v. For all exchange based secondary market
transactions in securities, Stock Exchanges shall
collect the stamp duty; and for off-market
transactions (which are made for a consideration as
disclosed by trading parties) and initial issue of
 securities happening in demat form, Depositories
shall collect the stamp duty.
vi. The Central Government has also notified the
Clearing Corporation of India Limited (CCIL)
under the jurisdiction of RBI and the Registrars to
an Issue and/or Share Transfer Agents (RTI/STAs)
to act as a collecting agent. The objective is to
bring OTC derivative transactions reported to
CCIL and physical space (non-demat) transactions
in mutual funds handled through RTI/STAs under
the ambit of stamp duty regime so as to avoid any
tax arbitrage.
vii. The collecting agents shall within three weeks of
the end of each month transfer the stamp duty
viii. collected to the State Government where the
residence of the buyer is located and in 5 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.
ix. 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, as informed to the
collecting agent by the Reserve Bank of India or
the concerned State Government.
x. 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.
xi. For many segments, there is reduction in duty. For
example, the rate prescribed is lower for issue of
equity/debentures and for transfer of debentures
(including re-issue) to aid capital formation and to
promote corporate bond market.
xii. For equity cash segment trading (both delivery and
non-delivery-based transactions) and options, since
rates are to be charged only on one side in line with
the new scheme, it can be stated that there is an
overall reduction in tax burden.
xiii. Secondary market transfer of instruments which are
traded with differences in a few basis points, like
interest rate / currency derivatives or corporate
bonds are being charged at a very lower rate from
the existing rates. For the newly introduced ‘repo
on corporate bonds’, a far lower rate is specified,
since similarly positioned repo on Government
Securities is not subject to duty.
xiv. No stamp duty shall be chargeable in respect of the
Instruments of transaction in stock exchanges and
depositories established in any International
Financial Services Centre set up under section 18
of the Special Economic Zones Act, 2005.
xv. Tax arbitrage is avoided by providing the same rate
of stamp duty for issue or re-issue or sale or
transfer of securities happening outside stock
exchanges and depositories.
xvi. Mutual funds, being delivery-based transactions in
securities, were supposed to have been paying the
duty as per various State Acts. All mutual fund
transactions are thus liable for stamp duty and the
new system has only standardized the charges
across states and the manner of collection of stamp
duty.

The Regulators (RBI & SEBI) have been authorized by

the Central Government under the Indian Stamp Act,
1899 to issue clarificatory circulars/ operational
guidelines on specific issues so as to ensure smooth
implementation from 1st July, 2020
 CHAPTER 15
REGISTRATION ACT, 1908

Introduction
● The Registration Act, 1908 is the law relating to
registration of documents.
Objectives
● To secure the interest of the person dealing with
immovable property
● To prevent fraud and forgery for providing
evidence of the genuineness of a document

Section 17(1) - Documents whose Registration is

Compulsory
Section 17(2) – Exceptions to Section 17(1)
The registration of the non-testamentary documents
mentioned in Section 17(1) is subject to the
exceptions provided in Sub-section (2) of Section 17.
(few points for your reference)
● any composition deed, i.e., every deed the essence
of which is composition; or
● any instrument relating to shares in Joint Stock
Company; or
● any debentures issued by any such Company; or
● any endorsement upon or transfer of any debenture;
or
● any document which creates any right in
immovable property not exceeding ₹100/-
● any decree or order of a court; or

Section 18 – Documents of which Registration is

Optional
● Instruments which create, assign, limit or
extinguish any right, title or interest of value less
than one hundred rupees, to or in immovable
property; leases term not exceeding 1 year; any
instrument assigning any order or decree or award
value less than ₹100; wills etc

Time Limit for Registration

Section Provision

23A Re-registration of documents – time limit - 4

months from a person becoming aware of
such registration is invalid
24 Several Executants - The registration is
“partial” in regard to each part
27 Presentation of will - Optional
28 Place of Registration – Immovable property –
shall be registered in the office of the
sub-registrar where the relevant property is
situated
29 Place of Registration – Movable property – it
can be presented where it is executed or in
the office of any other Sub-Registrar under
the State Government at which all the persons
executing desire the document to be
registered
30 & 31 Registration in Certain Cities – Sec 30 - any
city comprising a Presidency town (Madras,
Bombay, Calcutta) or in Delhi, a document
relating to property situated anywhere in
India may be registered
Sec 31 - registration is permitted in cases of
necessity under extra-ordinary circumstances,
at the residence of the executant (Eg:
Seriously ill, celebrity etc)
32 Who can present the documents for
registration –
 Person claiming under order or decree of the
court; or
The representative or assign; or
Power of attorney
33 Special power of attorney is required and
general POA will not do
47 Registered Document when Operative
As between two registered documents, the
date of execution determines the priority. Of
the two registered documents, executed by
same persons in respect of the same property
to two different persons at two different
times, the one which is executed first gets
priority over the other, although the former
deed is registered subsequently to the later
one
48 Refers to the priority of the registered
agreements over oral agreements
50 Refers to the priority of registered agreements
over nonregistered agreements.
49 Provides that no document required by
Section 17 or by any provision of the
Transfer of Property Act, 1882 to be
registered shall:
● affect any immovable property
comprised therein; or
● confer any power to adopt; or
● be received as evidence in the court of
law
 Exceptions –
● Unregistered document (as per 53A of
TOPA, 1882)
● Suit for specific performance
● Title not yet passed or conveyed
71 Refusal by Sub Registrar – to register the
document produced before him shall make an
order of refusal and record his reasons for
such order and endorse the words
“Registration refused” on the document.
Registration cannot be refused on the ground
of undervaluation for stamp or any other
irrelevant reason
72 Appeal to Registrar - an appeal shall lie
against an order of a Sub-Registrar refusing
to admit a document to registration. This does
not apply where the refusal is on the ground
of denial of execution. If Registrar orders to
register the same, sub-registrar shall obey the
same
73 Application to Registrar - Refusal to
register on the ground of denial of execution
is governed by Section 73, under which the
aggrieved party can make an “application”
not appeal to the Registrar
The aggrieved party within 30 days after the
making of order of refusal, apply to the
Registrar to whom such sub-registrar
 subordinate in order to establish his right to
have the document registered
If Registrar orders to register the same, the
Sub – registrar shall register the same
Such registration shall take effect as if the
document has been registered when it was
first presented for registration.
77 Where the Registrar refuses to order the
document to be registered within thirty days
after the making of the order of refusal,
institute in the Civil Court, within the local
limits of whose original jurisdiction is situate
the office in which the document is sought to
be registered a suit for a decree directing the
document to be registered
Exemption of Certain Documents Executed by or in
Favour of Government
Documents related to –
● settlement or revision of settlement of land revenue
● on behalf of the Govt in making survey of land
● Sanads, inam, title deeds
● Notice given U/s 74 or 76 of the Bombay Land
Revenue Code, 1879 of relinquishment of
occupancy by occupants or of land by holders of
such land
 CHAPTER 16
RIGHT TO INFORMATION ACT, 2005
Introduction
● In India, the Government enacted Right to
Information (RTI) Act in 2005 which came into
force w.e.f. October 12, 2005
● The Supreme Court held that right to know is a
necessary ingredient of participatory democracy
● The Right to Information Act, 2005 provides an
effective framework for effectuating the right to
information recognized under Article 19 of the
Constitution
Objective
● The Act provides for setting out the practical
regime of right to information for citizens to secure
access to information held by public authorities to
promote transparency and accountability in the
working of every public authority
Features of RTI Act, 2005
● It provides a definite day for its commencement
● It is applicable to public authorities
● All citizens shall have the right to information
● Section 8 and 9 mentions about exemption from
disclosure
● Prescribed fee shall be payable by the applicant
● Intelligence and Security agencies specified in
Schedule II to the Act have been exempted
Definitions
"Right to information"
It means the right to information accessible under this
Act which is held by or under
the control of any public authority and includes the
right to—
(i) taking notes, extracts, or certified copies of
documents or records;
(ii) inspection of work, documents, records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes,
floppies, tapes, video cassettes or in any other electronic
mode or through printouts where such information is
stored in a computer or in any other device; [Section
2(j)]

As per Section 4(1)(b), every public authority has to

publish within 120 days of the enactment of this Act:

Particulars of its organization; powers and duties of its

officers; procedure followed in its decision-making
process; norms set by it; functions, rules, regulations
used by its employees;

documents held by it; a directory of its officers;

monthly remuneration received by each of its officers
and employees; budget allocated; manner of execution
of subsidy programmes; particulars of facilities
available to citizens for obtaining information; names,
designations and other particulars of the Public
 Information Officers; Such other information as may be
prescribed

Section 5 Designation of Public Information Officers

(PIO)
Every public authority has to—
● Designate in all administrative units or offices
Central or State Public Information Officers to
provide information to persons
● Designate at each sub-divisional level or
sub-district level Central Assistant or State
Assistant Public Information Officers to
receive the applications for information or
appeals for forwarding the same to the Central
or State Public Information Officers
Request for obtaining information
● Application is to be submitted in writing or
electronically, with prescribed fee, to Public
Information Officer (PIO).
● Information to be provided within 30 days
● within 35 days if request is given to Assistant
PIO (Additional 5 days is given)
● 40 days if interest of third party is involved
● 48 hours where life or liberty is involved
Time taken for calculation and intimation of fees
excluded from the time frame;
No action on application for 30 days is a deemed
refusal; No fee for delayed response
Duties of a PIO
● He shall deal with requests from persons
seeking information
● If the information requested
● is closely connected with the function of
another public authority, the PIO shall transfer,
within 5 days, the request to that other public
authority and inform the applicant immediately
● PIO may seek the assistance of any other
officer
● PIO, on receipt of a request
● within 30 days of the receipt of the request,
either provide the information
● or reject the request
● If the PIO fails to give decision on the request
within the period specified, he shall be deemed
to have refused the request
 Where a request has been rejected, the PIO shall
communicate to the requester –
● the reasons for such rejection,
● the period within which an appeal against such
rejection may be preferred, and
● the particulars of the Appellate Authority

Section 8 Exemption from Disclosure

Certain categories of information have been
exempted from disclosure under the Act, which
are given below –
It affects the sovereignty and integrity of India;
expressly forbidden by any court; cause a breach of
privilege of Parliament or the State Legislature;
Information including commercial confidence,
trade secrets or intellectual property etc; Cabinet
papers; Information that would impede the process
of investigation;
Section 9 Rejection of Request
PIO is empowered to reject a request for
information where an infringement of a copyright
would be involved

Section Partial Disclosure Allowed

10 Where a part of the information asked can be
provided, then PIO can provide that part of
information and reject the other part

Second Exclusion
Schedule The Act excludes Central Intelligence and
Security agencies specified in the Second
Schedule like –
IB; Research & Analysis Wing; Central Economic
Intelligence Bureau; Special Frontier Force; Border
Security Force (BSF); Central Reserve Police Force
(CRPF); National Security Guard; Assam Rifles;
Special Service Bureau; Special Branch (CID) etc
A CHART TO UNDERSTAND THE HIERARCHY
IN RTI ACT, 2005

Information Commissions
Central Information Commission (CIC)
● The Central Information Commission is to be
constituted by the Central Government through a
Gazette Notification
● consists of the Chief Information Commissioner
and Central Information Commissioners not
exceeding 10.
● These shall be appointed by the President of India
on the recommendations of a committee
● CIC/IC shall not be a Member of Parliament or
Member of the Legislature of any State or Union
Territory
● The general superintendence, direction and
management of the affairs of the Commission vests
in the Chief Information Commissioner
● Commission shall have its Headquarters in Delhi
 ● Commission will exercise its powers without being
subjected to directions by any other authority
● CIC is not eligible for reappointment.
● Salary will be the same as that of the Chief Election
Commissioner.

State Information Commission (SIC)

● The State Information Commission will be
constituted by the State Government through a
Gazette notification.
● 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
● 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
● The Commission will exercise its powers without
being subjected to any other authority.
● The headquarters of the State Information
Commission shall be at such place as the State
Government may specify
 Appellate Authorities
● Any person who does not receive a decision within
the specified time or is aggrieved by a decision of
the PIO may file an appeal under the Act

Section 19 Disposal of the Appeal – Burden of proving that

denial of information was justified lies with the
PIO.
Section 20 Penalties - Every PIO will be liable for fine of
Rs. 250 per day, up to a maximum of Rs. 25,000
for - Not accepting an application; Delaying
information release without reasonable cause;
Malafidely denying information; Knowingly
giving incomplete information; Destroying
information
Section 23 Lower Courts are barred from entertaining suits or
applications against any order made under this
Act.

Section 26 Role of Central/State Governments - Develop

and organise educational programme especially
for disadvantaged communities on RTI; Promote
timely and effective dissemination of accurate
information; Train officers and develop training
materials
Compile and disseminate a user guide for the
public in their respective official language.
 CHAPTER 17
INFORMATION TECHNOLOGY ACT, 2000
Introduction
● Information technology means that technology
which is connected with information
● The use of such technology for the storage,
retrieval and dissemination of information has
given rise to several legal, social and ethical
problems
● With the changing needs and requirement of the
information technology, Information Technology
Act, 2000 has been introduced and substantially
amended in 2008
Objectives
● Providing legal recognition to ‘electronic
commerce’; facilitating Govt agencies electronic
filing; electronic fund transfer; e-storage of data;
legal recognition to Digital Signature; to amend
IPC, Bankers’ Book, Indian Evidence Act, 1891,
RBI Act, 1934
Non – applicability of the Act
Negotiable Instruments; Trusts; Power of Attorney;
Wills; Conveyance of immovable property
Some important definitions
“Asymmetric crypto system”
means a system of a secure key pair consisting of a
private key for creating a digital signature and a public
key to verify the digital signature [Section 2(1)(f)]
“Certification practice statement”
means a statement issued by a Certifying Authority to
specify the practices that the Certifying Authority
employs in issuing electronic signature Certificates.
[Section 2(1) (h)]
“Key pair” in an asymmetric crypto system, means a
private key and its mathematically related public key,
which are so related that the public key can verify a
digital signature created by the private key. [Section
2(1)(x)]
“Originator” means a person who sends, generates,
stores or transmits any electronic message or causes any
electronic message to be sent, generated, stored or
transmitted to any other person, but does not include an
intermediary. [Section 2(1)(za)]
“Prescribed” means prescribed by rules made under
this Act. [Section 2(1)(zb)]
“Private Key” means 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. [Section 2(1) (zd)]
Digital Signature and Electronic Signature
 ● Any subscriber may authenticate an electronic
record by affixing his Digital Signature
● It is to be effected by the use of ‘asymmetric crypto
system and hash function’ which acts as an
envelope and transform electronic record into
another electronic record
● The private key and the public key are unique to
the subscriber and constitute a functioning “key
pair”
Electronic Signature [Section 3A]
● It provides that subscriber may authenticate any
electronic record by such electronic signature or
electronic authentication technique which—
(a) is considered reliable; and
(b) may be specified in the Second Schedule
Electronic Governance
Section Provision
4 Legal Recognition of Electronic Records
(where law requires you to maintain any
record in handwritten or typewritten form,
you can maintain it electronically)
5 Recognition of Electronic Signatures –
Electronic signatures are valid as physical
signature, if procedures are followed properly
as per the Act
 6 Recognition of e-records in Government
offices – the filing of any form with a
Governmental office grant of any licence
receipt or payment of money can be done
using electronic means

6A Delivery of Services by a Service Provider –

The individual or entity has been granted
permission by the appropriate Government to
offer services through electronic means in
accordance with the policy governing such
service sector.

7 Retaining the data electronically

7A Audit of Documents Retained
Electronically
8 Subordinate Legislation – Subordinate
legislation is also authorised, by the Act, to be
published in the Official Gazette or the
electronic Gazette
9 Sections 6, 7 & 8 do not Confer Right to a
Person - shall not confer any right upon any
person to insist, that any Government agency
shall accept, issue any document
electronically

10A Validation of E-contracts

 11&12 Attribution and Dispatch of Electronic
Records – Attribution means the act of
considering that the message has come from
the concerned person only.
An electronic record is always attributed to
the ‘originator’ if it is sent by originator or
authorised person or programmed message
13 Time and Place of Dispatch – Please refer
the chart below

Place of Dispatch - An electronic record is

deemed to be dispatched at the place where
originator has his place of business, and is
deemed to be received at the place where the
addressee has his place of business
14, 15 & Secure Electronic Signatures
16
15 An electronic signature shall be deemed to be a
secure electronic signature if— It was under the
 exclusive control of signatory and no other person
and was stored and affixed in such exclusive
manner as may be prescribed
16 The Central Government to prescribe the security
procedure for electronic records
14 When the procedure has been applied to an
electronic record at a specific point of time, then
such record is deemed to be a secure electronic
record
17-34 Certifying Authorities – Issuer of DSCs –
Controller of Certifying Authorities regulates
Certifying Authorities
35-39 Electronic Signature Certificates – Procedure
Apply; such application be accompanied by
prescribed fee; application shall be accompanied
by a certification practice statement; On receipt of
an application
after making such enquiries as it may deem fit,
grant the electronic signature Certificate
43 Provides that if any person without permission
of the owner or any other person who is in
charge of a computer, computer system or
computer network –
accesses or secures access; downloads; copies or
extracts any data; introduces computer
contaminant; damages any computer; disrupts any
computer; denies access to any person; charges
the services availed of by a person to the account
of another person; destroys any information
 residing in a computer; steal, conceal, destroys or
alters any computer source code
43A Compensation for Failure to Protect the Data
(body corporate)
44 Penalty for Failing to Furnish the Return –
may extend upto ₹10,000 per day
45 Contravention of a rule or regulation attracts
liability to pay compensation upto ₹25,000
46 Adjudicating Officer - An adjudication officer is
to be appointed by the Central Government for
adjudging whether any person has committed a
contravention of the Act or of any rule,
regulation, direction or order issued under the Act
48-62 Appellate Tribunal – The Central Government
shall specify, by notification the matters and
places in relation to which the Appellate Tribunal
may exercise jurisdiction
Jurisdiction of Civil Courts is barred, in respect of
any matter which an adjudicating officer or the
Appellate Tribunal has power to determine
65 Offence - Punishable with imprisonment up to 3
years, or with fine which may extend up to two
lakh rupees, or with both
66 Computer Related Offences - Imprisonment for
a term which may extend to 3 years or with fine
which may extend to five lakh rupees or with both
68 Contains certain provisions empowering the
Controller of Certifying Authorities to issue
certain directions to certifying Authorities
69 Where the Central Government or a State
Government or any of its officers direct any
agency of the appropriate Government to
intercept, monitor or decrypt or cause to be
intercepted or monitored or decrypted any
information generated, transmitted, received or
stored in any computer resource.
The subscriber or intermediary shall support the
investigation and provide the required
information.
If they fail to assist, they shall be punished with
an imprisonment which may extend upto 7 years
and shall be liable to fine
75 Extra Territorial Jurisdiction - applies to any
offence or contravention committed outside India
by any person, irrespective of his nationality, if
the act or conduct in question involves a
computer, computer system or computer network
located in India

79 Network Service Provider - In his capacity as an

intermediary, a network service provider may
have to handle matter which may contravene the
Act. In order to avoid the consequence, the Act
declares that no network service provider shall be
liable if he proves that the offence or
contravention was committed without his
knowledge