YES Academy for CS & Law Mindset is Everything….

CS Executive - JIGL

CHAPTER 1 – SOURCES OF LAW

MEANING OF LAW
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. The reason for lack of
unanimity is that the subject has been viewed and dealt with by different jurists at different
times and from different point of views, that is to say, from the point of view of nature,
source, function and purpose of law, to meet the needs of some given period of legal
development.
In broader sense law refers to the whole process, or legal system which is applied by the
government personnel and bodies in society so as to establish and maintain peaceful and orderly
relation between people.
Under the Constitution of India, the inclusive definition of the term “Law” and “Laws in force”
has been provided under Article 13(3), Which says:
a) “Law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage
having in the territory of India the force of law;
b) “Laws in force” includes laws passed or made by a Legislature or other competent authority
in the territory of India before the commencement of the Constitution and not previously
repealed.

JURISPRUDENCE & LEGAL THEORY

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 philosophies underpinning it.
Howsoever, the term jurisprudence is defined; it remains a study relating to law. The word ‘law’
itself is used to refer more than one thing. Hence one of the first tasks of jurisprudence is to
attempt to throw light on the nature of law.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 1
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

LEGAL THEORY
a. Legal theory is a field of intellectual enterprise within jurisprudence that involves the
development and analysis of the foundations of law. Two most prominent legal theories are
the normative legal theory and the positive legal theory.
b. Positive legal theory seeks to explain what the law is and why it is that way, and how laws
affect the world, whereas normative legal theories tell us what the law ought to be.

JEREMY BENTHAM
1. According to him ‘a law’ may be defined as a collection of signs, declarative of will, conceived
or adopted by a sovereign in a state, concerning the conduct to be observed in a certain case
by a certain person or a class of persons, who in the case in question are subject to his power.
2. He claimed that nature has placed man under the command of two sovereigns- pain and
pleasure. Where pleasure means rewards for those who obey the law and pain signifies
punishments in the event of violation of law.
3. 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.
4. The justification for having laws is that they are an important means of ensuring happiness of
the members of community generally. Hence, the sovereign power of making laws should be
used, not to guarantee the selfish desires of individuals, but consciously to secure the common
good.

Bentham said that every law may be considered in eight different respects:
1. Source: The source of a law is the will of the sovereign, who may conceive laws which he
personally issues, or adopt laws previously issued by sovereigns or subordinate authorities, or he
may adopt laws to be issued in future by subordinate authorities. Sovereign according to
Bentham is any person to whose will a whole political community is supposed to be in a
disposition to pay obedience.
2. Subjects: These may be persons or things on which a law applies.
3. Objects: The goals of a given law are its objects.
4. Extent: Direct extent means that a law covers a portion of land on which it applies; indirect
extent refers to the relation of a person to a thing.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 2
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

5. Aspects: Every law has ‘directive’ and a ‘sanctional’ part. The former concerns the sovereign’s
will towards an act or situation and the latter concerns the force of a law.
6. Force: The motivation to obey a law is generated by the force behind the law.
7. Remedial appendage: These are a set of subsidiary laws addressed to the judges through which
the judges cure the evil (compensation), stop the evil or prevent future evil.
8. Expression: A law, in the ultimate, is an expression of a sovereign’s will.

CRITICISM OF BENTHAM’S THEORY OF LAW

1. As per Bentham all laws have to be either command or permission, it does not take proper
account of laws conferring power like the power to make contracts etc.
2. He did not give a fair treatment to custom as a source of law. He said customs could never
be ‘complete’.
3. His theory did not allow for judge made laws and hoped that such laws would be gradually
eliminated by having ‘complete laws’.
4. To judge an action according to the pleasure- pain criterion is to judge it subjectively. The
theory did not provide how a subjective criterion of pain and pleasure can be converted into an
objective one.
5. It is not always true that an increase in the happiness of a certain segment of society will
lead to an increase in the overall happiness level because it might be associated with a
diminution in the happiness of some other rival section of the society.

JOHN AUSTIN
John Austin a noted English legal theorist was the first occupant of the chair of Jurisprudence
at the University of London. Austin is known for the Command Theory of law. Austin was a
positivist, meaning that he concerned himself on what the law was instead of going into its
justness or fairness.
According to Austin, law is the command of sovereign that is backed by sanction. Austin has
propagated that law is a command which imposes a duty and the failure to fulfil the duty is
met with sanctions (punishment).

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 3
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

Thus, Law has three main features:

1. It is a command.
2. It is given by a sovereign.
3. It has a sanction behind it.
In order to properly appreciate Austin’s theory of law, we need to understand his conception
of command, sovereign and sanction.

Command
It is an expression of wish of an intelligent person, directing another person to do or to forbear
from doing some act, and the violation of this wish will be followed by evil consequences.
Command requires the presence of two parties- the commander (political superior) and the
commanded (political inferior).

Sovereign
Sovereign is politically and legally superior. He is independent, He has defined sovereign as an
authority that receives habitual obedience from the people but itself does not obey some other
authority habitually. According to Austin, the sovereign is the source of all laws.

Sanction
It is the evil consequence that follows on the violation of a command. To identify a law, the
magnitude of the sanction is not relevant but the absence of sanction disentitles an expression
of the sovereign from being a law in Austinian sense. Sanction should not also be confused
with a reward that might be on offer if a given conduct is followed or refrained from. Reward
confers a positive right whereas a sanction is a negative consequence.

CRITICISM OF AUSTIN’S COMMAND THEORY OF LAW

1. Welfare states pass a number of social legislations that do not command the people but confer
rights and benefits upon them. Such laws are not covered under the command theory.
2. According to Austin the sovereign does not have to obey anyone but the modern states have
their powers limited by national and international laws. For example, the Government of India
cannot make laws that are violative of the provisions of the Constitution of India.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 4
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

3. Austin does not provide for judges made laws. He said that judges work under the strict
command of the sovereign but in reality, judges make positive laws as well.
4. Since the presence of sovereign is a pre-requisite for a proposition to be called law, Austin did
not recognize international laws as such because they are not backed by any sovereign.

JOHN WILLIAM SALMOND

1. John William Salmond was a law professor in New Zealand, Salmond claimed that the purpose
of law was the deliverance of justice to the people and in this sense, he differed from Bentham
and Austin who went into the analysis of law as it stood without going into its purpose. But
Salmond also necessitated the presence of the state for implementation of laws just like
Bentham and Austin.
2. According to Salmond law is the body of principles which are recognized and applied by the
state in the administration of justice. His other definition said that law consists of a set of
rules recognized and acted on in courts of justice.
3. Since law was defined by a reference to the administration of justice, it needs to be understood
as well. Salmond says that human experience has made it clear that some form of compulsion
is required to maintain justice and men cannot be left to do what they believe is right in their
own eyes.
4. Therefore, if a just society is to be maintained, it is necessary to add compulsion so as to
complement to walk on the desired path. Hence, there exists various regulative systems, the
purpose of which is the upholding and enforcement of right and justice.
5. The administration of justice may therefore be defined as the maintenance of right within a
political community by means of physical force of the state. Another is the control exercised
over men by the opinion of the society in which they live. Censure, ridicule, contempt are the
sanctions by which society (as opposed to the state) enforces the rules of morality.
6. He argued that the administration of justice was the primary task of a state and the laws
were made to achieve that objective.
7. Salmond further said that the administration of justice is perfectly possible without laws
though such a system is not desirable. A court with an unfettered discretion in the absence
of laws is capable of delivering justice if guided by equity and good conscience, however the
same is prone to abuse of power as well.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 5
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

CRITICISM OF SALMOND’S THEORY

1. Salmond’s assertion that justice is the end and law is only a medium to realize it does not
always hold true because there are a number of laws that can be called ‘unjust’.
2. The pursuit of justice is not the only purpose of law, the law of any period serves many ends
and these ends themselves change with the passage of time.
3. There is a contradiction when Salmond says that the purpose of law is the administration of
justice but limits ‘jurisprudence’ to the study of the ‘first principles’ of civil law of a national
legal system because justice is a universal concept, the jurisprudential analysis of law should
not be constrained by national boundaries.

ROSCOE POUND
1. Roscoe Pound a distinguished American legal scholar was a leading jurist of 20th century and
was one of the biggest proponents of sociological jurisprudence which emphasized taking into
account of social facts in making, interpretation and application of laws.
2. Roscoe Pound drew a similarity between the task of a lawyer and an engineer and gave his
theory of social engineering.
3. The goal of this theory was to build such a structure of society where the satisfaction of
wants of maximum was achieved with the minimum of friction and waste. Such a society
according to Roscoe Pound would be an ‘efficient’ society.
4. Realisation of such a social structure would require balancing of competing interests. Roscoe
Pound defined interests as claims or wants or desires which men assert and about which law
must do something, if organised societies are to be developed.
5. For any legal order to be successful in structuring an efficient society, there has to be:
i. A recognition of certain interests- individual, public and social.
ii. A definition of the limits within which such interest will be legally recognized and given
effect to.
iii. Securing of those interests within the limits as defined.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 6
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

According to Roscoe Pound, for determining the scope and the subject matter of the legal
system, following five things are required to be done:
1. Preparation of an inventory of interests and their classification.
2. Selection of the interests which should be legally recognized.
3. Demarcation of the limits of securing the interest so selected.
4. Consideration of the means whereby laws might secure the interests, and
5. Evolution of the principles of valuation of interests.

Roscoe Pound’s classification of interests are as follows:

1. Individual interest: These are claims or demands determined from the standpoint of individual’s
life and concern. They are:
i. Interest of personality: This includes physical integrity, freedom of will, honour and reputation.
ii. Interest in domestic relations: This includes relationships of parents-children, husband-wife.
iii. Interest of substance: This includes interests of property, freedom of association.

2. Public interest: These interests are asserted by individual from the standpoint of political life.
They are:
i. Interests of the state as a juristic person
ii. Interests of the state as guardian of social interest.

3. Social interests: These are claims or demands thought of in terms of social life and generalized
as claims of the social group. It is from the point of view of protecting the general interest of
all members of the society. Social interests include-
i. Social interest in the general security: This includes general safety, peace and order.
ii. Social interest in the security of social institutions.
iii. Social interest in general morals like laws dealing with prostitution, gambling, bigamy,
drunkenness.
iv. Social interest in the conservation of social resources like the natural and human resources.
v. Social interest in general progress.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 7
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

CRITICISM OF ROSCOE POUND’S THEORY OF LAW

1. Pound said that interest pre-exist laws and the function of legal system should be to achieve
a balance between competing interests but we see that a lot of interests today are a creation
of laws.
2. The theory does not provide any criteria for the evaluation of interest. It is not interests as
such, but the yardstick with reference to which they are measured that matter.
3. Pound’s theory of balancing interests can be effectuated most effectively by judges because
the judges get to translate the activity, thus his theory gives more importance to judiciary in
comparison to the legislature.
4. Pound’s distinction between Public and Social interests is doubtful and even the distinction
between Individual and Social Interest is of minor significance.
5. The recognition of a new interest is a matter of policy. The mere presence of a list of interests
is, therefore, of limited assistance in helping to decide a given dispute.

PROF. HLA HART

He was a British Legal Philosopher who listed many meanings associated with the term
‘positivism’ as follows:
1. Laws are commands.
2. The analysis of legal concepts is
a) worth pursuing,
b) distinct from sociological and historical enquiries into law, and
c) distinct from critical evaluation
3. Decisions can be deduced logically from predetermined rules without recourse to social aims,
policy or morality.
4. Moral judgments cannot be established or defended by rational argument, evidence or proof.
5. The law as it is laid down should be kept separate from the law that ought to be.
Positivism is most commonly understood as the fifth description above. Natural law theory
claims that a proposition is ‘law’ not merely because it satisfies some formal requirement, but
by virtue of an additional minimum moral content. According to it, an immoral rule cannot be
‘law’ even if it satisfies all the formal requirements.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 8
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

HANS KELSEN
1. Hans Kelsen was an Austrian philosopher and jurist who is known for his ‘Pure Theory of Law’.
Kelsen believed that the contemporary study and theories of law were impure as they were
drawn upon from various other fields like religion and morality to explain legal concepts. Kelsen,
like Austin was a positivist, in that he focused his attention on what the law was and divested
moral, ideal or ethical elements from law. He discarded the notion of justice as an essential
element of law because many laws, though not just, may still continue as law.
2. He considered sanction as an essential element of law but he preferred to call it ‘norm’.
According to Kelsen, ‘law is a primary norm which stipulates sanction’.
3. According to Kelsen, ‘norm (sanction) is rules forbidding or prescribing a certain behaviour’.
He saw legal order as the hierarchy of norms having sanction, and jurisprudence was the study
of these norms which comprise legal order. Kelsen distinguished moral norm with legal norm
and said that though moral norms are ‘ought’ prepositions, a violation of it does not have any
penal fallout.
4. 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. In his
view the basic norm is the result of social, economic, political and other conditions and it is
supposed to be valid by itself.
5. For example, in India a statue or law is valid because it derives its legal authority from being
duly passed by the Parliament and receiving the accent of the President, the Parliament and
the President, derive their authority from a norm i.e., the Constitution. As to the question from
where does the Constitution derive its validity there is no answer and, therefore, it is the
Grundnorm.
6. Grundnorms are generally followed by the Superior Norms. Superior norms are laws which govern
the subordinate laws. They are inferior to Grundnorm but superior to subordinate laws. Whereas
Subordinate Norm are derived or made to assist the superior norm. These norms derive their
justification from superior norm.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 9
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

GrundNorm ( fundamental law/supreme law/law of land).

Example: Constitution of India

Supreme Law(justified and controlled by grund norm).

Example: Indian Penal Code,The Code of Criminal
Procedure,1908,etc.

Subordinate Norm(derives justification and are controlled by

superior norms).Example:Regulations under SEBI Act,1992 and
Rules under the Companies Act,2013,etc.

CRITICISM OF KELSEN’S PURE THEORY

1. It is difficult to trace ‘grundnorm’ in every legal system. Also, there is no rule or yardstick to
measure the effectiveness of grundnorm.
2. The Pure Theory also did not give the timeframe for which the effectiveness should hold for
the requirement of validity to be satisfied. Validity is a matter to be determined in the context
of a given point of time and depends on what judges are prepared to accept at that moment
as imparting law quality.
3. Kelsen’s theory ceases to be ‘pure’ the moment one tries to analyse the grundnorm because
then one will have to draw upon subjects other than law like sociology, history and morality.
4. International law does not sit well with Kelsen’s Pure theory.

SCHOOLS OF LAW

NATURAL SCHOOL OF LAW

Natural law says that certain rights are inherent by virtue of human nature and can be
understood universally through human reason. The law of nature, divine law, or the law that
exists in all of nature is how the natural school of law is typically understood.
This school of law is divided into four theories:
1. Ancient Theory
2. Medieval Theory

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 10
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

3. Renaissance Theory
4. Modern theory

1. Ancient Theory
There were two groups of philosophers.
a. Roman philosopher
Ulpine defined Law as “the art or science of what is equitable and good.”
Cicero said that Law is “the highest reason implanted in nature.”
Justinian’s Digest defines Law as “the standard of what is just and unjust.”
In all these definitions, propounded by Romans, “justice” is the main and guiding element of
law.

b. Greek philosopher
Heraclitus – He was one of the first Greek philosopher who identified three main features of
law of nature- destiny, reason and order. He stated that all these three elements are
interconnected and interrelated.
Plato - natural law was characterized by two main aspects – wisdom and reason.

2. Medieval Theory
Medieval Theory is based on the theological idea i.e., the God. This stage provides a divine
based law i.e., law of nature is then law of God. And the law of God is actually the true
Dharma connecting law with that of God. Thus, ‘law’ is a part of “Dharma”.

3. Renaissance Theory
This theory is marked by rationalism. It has two distinct features –
a. More secular, political and was founded on human reasons
b. It advocates natural rights of a man and the state.

4. Modern Theory
This modern theory rejects then older theories and conceptions. This modern theory rejects
then older theories and conceptions.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 11
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

ANALYTICAL SCHOOL OF LAW

This school of jurisprudence is also known as the positivist school of law. John Austin, “Law
is the aggregate of rules set by man as politically superior, or sovereign, to men as political
subject.” In other words, law is the “command of the sovereign”. It obliges a certain course
of conduct or imposes a duty and is backed by a sanction. Thus, the command, duty and
sanction are the three elements of law.
Hans Kelsen gave a ‘pure theory of law’. The science of law to Kelsen is the knowledge of
hierarchy of normative relations. All norms derive their power from the ultimate norm called
‘Grundnorm’.

Grundnorm

Superior Norm

Subordinate Norms

HISTORICAL SCHOOL OF LAW

The law originates from long drawn process of customs, ongoing conventions, social habits,
traditions.
Von Savigny’s theory of law can be summarised as follows:
1. That law is a matter of unconscious and organic growth. Therefore, law is found and not made.
2. Law is not universal in its nature. Like language, it varies with people and age.
3. Custom not only precedes legislation but it is superior to it. Law should always conform to the
popular consciousness.
4. Law has its source in the common consciousness (Volkgeist) of the people.
5. Legislation is the last stage of law making, and, therefore, the lawyer or the jurist is more
important than the legislator.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 12
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

PHILOSOPHICAL/ETHICAL SCHOOL
The exponents of this school believe that law and ethical values are co-related. The law, in
order to command respect in society must have an element of ethical value and ethical purpose.
It considers law as a means to achieve its end by which individual will is to harmonize with
the general will.

SOCIOLOGICAL SCHOOL OF LAW

This school focuses on the effect of law and society on none another. This school treats law
as a social phenomenon. It is a synthesis of philosophy, psychology, history, social science etc
with law.
Duguit defines law as “essentially and exclusively a social fact.”

REALIST SCHOOL OF LAW

Realists define law in terms of judicial process.
According to Holmes, “Law is a statement of the circumstances in which public force will be
brought to bear upon through courts.”
According to Cardozo, “A principle or rule of conduct so established as to justify a prediction
with reasonable certainty that it will be enforced by the courts if its authority is challenged,
is a principle or rule of law.”

Laws are made effective:

By requiring one,
By requiring
in some By
damages to be
instances,to By preventing administrating
paid for an
complete an disobedience some form of
injury due to
obligation he has punishment
disobiendence
failed to perform

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 13
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

The modern Indian law as administered in courts is derived from various sources and these
sources fall under the following two heads:
i. Primary sources of Indian Laws.
ii. Secondary sources of Indian Laws.

PRIMARY SOURCES OF INDIAN 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, though its importance is now diminishing with the growth of legislation and
precedent.
A study of the ancient law shows that in primitive society, the lives of the people were
regulated by customs which developed spontaneously according to circumstances. It was felt
that a particular way of doing things was more convenient than others. 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. Most of the law
given in Smritis and the commentaries had its origin in customs. The Smritis have strongly
recommended that the customs should be followed and recognised. Customs worked as a re-
orienting force in Indian Law.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 14
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

Classification of Customs
Customs may be divided into two classes:
a. Customs without sanction.
b. Customs having sanction.
Customs without sanction are those customs which are non-obligatory and are observed due
to the pressure of public opinion. These are called as “positive morality”.
Customs having sanction are those customs which are enforced by the State. It is with these
customs that we are concerned here.
These may be divided into two classes:
a. Legal, and
b. Conventional.

Legal Customs: These customs operate as a binding rule of law. They have been recognised
and enforced by the courts and therefore, they have become a part of the law of land. Legal
customs are again of two kinds:
a. Local Customs: Local custom is the custom which prevails in some definite locality and
constitutes a source of law for that place only. But there are certain sects or communities
which take their customs with them wherever they go. They are also local customs.
Thus, local customs may be divided into two classes:
i. Geographical Local Customs
ii. Personal Local Customs
These customs are law only for a particular locality, section or community.

b. General Customs: A general custom is that which prevails throughout the country and
constitutes one of the sources of law of the land. The Common Law in England is equated
with the general customs of the realm.

Conventional Customs: These are also known as “usages”. These customs are binding due to
an agreement between the parties, and not due to any legal authority independently possessed
by them. Before a Court treats the conventional custom as incorporated in a contract, following
conditions must be satisfied:

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 15
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

a. It must be shown that the convention is clearly established and it is fully known to the
contracting parties.
b. Convention cannot alter the general law of the land.
c. It must be reasonable.

REQUISITES OF A VALID CUSTOM

1. Immemorial (Antiquity): A custom to be valid must be proved to be immemorial; it must be
ancient. According to Blackstone, “A custom, in order that it may be legal and binding must
have been used so long that the memory of man runs not to the contrary, so that, if anyone
can show the beginning of it, it is no good custom”.
2. Certainty: The custom must be certain and definite, and must not be vague and ambiguous.
3. Reasonableness: A custom must be reasonable. It must be useful and convenient to the
society. A custom is unreasonable if it is opposed to the principles of justice, equity and good
conscience.
4. Compulsory Observance: A custom to be valid must have been continuously observed without
any interruption from times immemorial
5. Conformity with Law and Public Morality: A custom must not be opposed to morality or
public policy nor must it conflict with statute law. If a custom is expressly forbidden by
legislation and abrogated by a statute, it is inapplicable.
6. Unanimity of Opinion: The custom must be general or universal. If practice is left to individual
choice, it cannot be termed as custom.
7. Peaceable Enjoyment: The custom must have been enjoyed peaceably without any dispute in
a law court or otherwise.
8. Consistency: There must be consistency among the customs. Custom must not come into
conflict with the other established customs.

JUDICIAL DECISION OR PRECEDENTS

In general use, the term “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.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 16
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

Judicial precedents are an important source of law. They have enjoyed high authority at all
times and in all countries. The principles of law expressed for the first time in court decisions
become precedents to be followed as law in deciding problems and cases identical with them
in future. The rule that a court decision becomes a precedent to be followed in similar cases
is known as doctrine of stare decisis.

HIGH COURTS
1. The decisions of High Court are binding on all the subordinate courts and tribunals within its
jurisdiction. The decisions of one High Court have only a persuasive value in a court which is
within the jurisdiction of another High Court. But if such decision is in conflict with any
decision of the High Court within whose jurisdiction that court is situated, it has no value and
the decision of that High Court is binding on the court. In case of any conflict between the
two decisions of co-equal Benches, generally the later decision is to be followed.
2. In a High Court, a single judge constitutes the smallest Bench. A Bench of two judges is
known as Division Bench. Three or more judges constitute a Full Bench. A decision of such a
Bench is binding on a Smaller Bench. Thus, a decision by a Bench of the High Court should
be followed by other Benches unless they have reason to differ from it, in which case the
proper course is to refer the question for decision by a Full Bench.
3. The Supreme Court is the highest court and its decisions are binding on all courts and other
judicial tribunals of the country. Article 141 of the Constitution makes it clear that the law
declared by the Supreme Court shall be binding on all courts within the territory of India.
Only the statement of ratio of the judgement is having the binding force.

SUPREME COURT
The expression ‘all courts’ used in Article 141 refers only to courts other than the Supreme
Court. Thus, the Supreme Court is not bound by its own decisions. However, in practice, the
Supreme Court has observed that the earlier decisions of the Court cannot be departed from
unless there are extraordinary or special reasons to do so. If the earlier decision is found
erroneous and is thus detrimental to the general welfare of the public, the Supreme Court will
not hesitate in departing from it.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 17
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

Precedents may be classified as:

Declaratory and Orginal Precedents

Persuasive Precedents

Absolutely Authorative Precedents

Conditionally Authoritative Precedents

1. Declaratory and Original Precedents: According to Salmond, a declaratory precedent is one

which is merely the application of an already existing rule of law. An original precedent is one
which creates and applies a new rule of law. In the case of an original precedent, it is law for
the future because it is now applied.

Example: “Vishaka Guidelines” were stipulated by the Supreme

Court of India, in Vishaka and others v. State of Rajasthan case
in 1997, regarding prevention of sexual harassment at workplace.
They acted as precedent for many cases during 1997 to 2013.

2. Persuasive Precedents: A persuasive precedent is one which the judges are not obliged to
follow but which they will take into consideration and to which they will attach great weight
as it seems to them to deserve. Thus, in India, the decisions of one High Court are only
persuasive precedents in the other High Courts.

3. Absolutely Authoritative Precedents: An authoritative precedent is one which judge must

follow whether they approve of it or not. Its binding force is absolute and the judge’s discretion
is altogether excluded as he must follow it. Such a decision has a legal claim to implicit

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 18
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

obedience, even if the judge considers it wrong. Unlike a persuasive precedent which is merely
historical, an authoritative precedent is a legal source of law.

Example: The decisions of Higher Court are authoritatively

binding on the lower courts.

4. Conditionally Authoritative Precedents: A conditionally authoritative precedent is one which,

though ordinarily binding on the court before which it is cited, is liable to be disregarded in
certain circumstances. The court is entitled to disregard a decision if it is a wrong one, i.e.,
contrary to law and reason.

Example: In India, for instance, the decision of a single Judge

of the High Court is absolutely authoritative so far as
subordinate judiciary is concerned, but it is only conditionally
authoritative when cited before a Division Bench of the same
High Court.

DOCTRINE OF STARE DECISIS

1. The doctrine of stare decisis means “adhere to the decision and do not unsettle things which
are established”. It originated from Latin term which means “to abide by things decided” It
is a useful doctrine intended to bring about certainty and uniformity in the law.
2. Under the stare decisis doctrine, a principle of law which has become settled by a series of
decisions generally is binding on the courts and should be followed in similar cases. In simple
words, the principle means that like cases should be decided alike. This rule is based on public
policy.
3. Although doctrine should be strictly adhered to by the courts, it is not universally applicable.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 19
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

4. The doctrine should not be regarded as a rigid and inevitable doctrine which must be applied
at the cost of justice. It is a legal doctrine that obligates courts to follow historical cases
(precedents) while making ruling in similar cases.

RATIO DECIDENDI
1. The underlying principle of a judicial decision, which is only authoritative, is termed as ratio
decidendi. The proposition of law which is necessary for the decision or could be extracted
from the decision constitutes the ratio. The concrete decision is binding between the parties
to it. The abstract ratio decidendi alone has the force of law as regards the world at large.
2. In other words, the authority of a decision as a precedent lies in its ratio decidendi.
Prof. Goodhart says that ratio decidendi is nothing more than the decision based on the
material facts of the case.
3. Where an issue requires to be answered on principles, the principles which are deduced by way
of abstraction of the material facts of the case eliminating the immaterial elements is known
as ratio decidendi and such principle is not only applicable to that case but to other cases
also, which are of similar nature.
4. However, the determination or separation of ratio decidendi from obiter dictum is not so easy.
It is for the judge to determine the ratio decidendi and to apply it on case to be decided.

OBITER DICTA
1. The literal meaning of this Latin expression is “said by the way”. The expression is used
specially to denote those judicial utterances in the course of delivering a judgement which
taken by themselves, were not strictly necessary for the decision of the particular issue raised.
2. These statements thus go beyond the requirement of a particular case and have the force of
persuasive precedents only. The judges are not bound to follow them although they can take
advantage of them. They sometimes help the cause of the reform of law.
3. It is quite often too difficult for lawyers and courts to see whether an expression is the ratio
of judgement or just a casual opinion by the judge. It is open, no doubt, to other judges to
give a decision contrary to such obiter dicta.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 20
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

STATUTES OR LEGISLATION
1. Legislation is that source of law which consists in the declaration of legal rules by an authority
duly empowered by the Constitution in that behalf. It is sometimes called jus scriptum (written
law) as contrasted with the customary law or jus non-scriptum (unwritten law).
2. 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.
3. 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.
4. In our legal system, Acts of Parliament and the Ordinances and other laws made by the
President and Governors in so far as they are authorised to do so under the Constitution are
supreme legislation while the legislation made by various authorities like Corporations,
Municipalities, etc. under the authority of the supreme legislation are subordinate legislation.

PERSONAL LAWS
In many cases, the courts are required to apply the personal law of the parties where the point
at issue is not covered by any statutory law or custom. In the case of Hindus, for instance,
their personal law is to be found in:
i. The Shruti which includes four Vedas.
ii. The ‘Smritis’ which are recollections handed down by the Rishis or ancient teachings and
precepts of God, the commentaries written by various ancient authors on these Smritis. There
are three main Smritis; the Codes of Manu, Yajnavalkya and Narada.
iii. Hindus are governed by their personal law as modified by statute law and custom in all matters
relating to inheritance, succession, marriage, adoption, coparcenary, partition of joint family
property, pious obligations of sons to pay their father’s debts, guardianship, maintenance and
religious and charitable endowments.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 21
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

The personal law of Mohammedans is to be found in: –

1. The holy Quran.
2. The actions, percept and sayings of the Prophet Mohammed which though not written during
his life time were preserved by tradition and handed down by authorised persons. These are
known as Hadis.
3. Ijmas, i.e., a concurrence of opinion of the companions of the Prophet and his disciples.
4. Kiyas or reasoning by analogy. These are analogical deductions derived from a comparison of
the Koran, Hadis and Ijmas when none of these apply to a particular case.
5. Digests and Commentaries on Mohammedan law
Mohammedans are governed by their personal law

SECONDARY SOURCES OF INDIAN LAW

Secondary
Sources of Indian
Law

Justice,Equity & Source of English

Good Conscience Law

i. Common Law

ii. Law Merchant

iii. Principle of Equity
iv. Statue Law

1. JUSTICE, EQUITY AND GOOD CONSCIENCE

i) The concept of “justice, equity and good conscience” was introduced by Impey’s Regulations
of 1781. In personal law disputes, the courts are required to apply the personal law of the
defendant if the point at issue is not covered by any statute or custom.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 22
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

ii) In the absence of any rule of a statutory law or custom or personal law, the Indian courts
apply to the decision of a case what is known as “justice, equity and good conscience”, which
may mean the rules of English Law in so far as they are applicable to Indian society and
circumstances.
iii) In its modern version, justice, equity and good conscience as a source of law, owes its origin
to the beginning of the British administration of justice in India. The Charters of the several
High Courts established by the British Government directed that when the law was silent on
a matter, they should decide the cases in accordance with justice, equity and good conscience.
iv) The Supreme Court has stated that it is now well established that in the absence of any rule
of Hindu Law, the courts have authority to decide cases on the principles of justice, equity and
good conscience unless in doing so the decision would be repugnant to, or inconsistent with,
any doctrine or theory of Hindu Law.

2. SOURCES OF ENGLISH LAW/ MERCANTILE LAW

The chief sources of English law are:
c. Common Law
d. Law Merchant
e. Principle of Equity
f. Statute Law

1. Common Law: Principles of law evolved by the judges in making decisions on cases that are
brought before them. These principles have been built up over many years so as to form a
complete statement of the law in particular areas. Thus, Common Law denotes that body of
legal rules, the primary sources of which were the general immemorial customs, judicial decisions
and text books on Jurisprudence. Common Law is unwritten law of England which is common
to the whole of the realm.
2. Law Merchant: 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
3. 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

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 23
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

developed in the Courts of Chancery. In some cases, there was no remedy or inadequate remedy
at Common Law. The King was considered as the fountain head of justice; when people were
dissatisfied or aggrieved with the decision of the Common Law Court, they could always file a
mercy petition with the King-in-Council. The King would refer these petitions to his Chancellor.
The Chancellor, who was usually a Bishop, would dispose of these petitions not according to
the rigid letter of the law but according to his own dictates of commonsense, natural justice
and good conscience. The law so administered by the Chancellor came to be known as ‘Equity’
and such courts as ‘Equity Courts’.
These ‘Equity Courts’ acted on number of maxims, meaning of few is as under:
“He who seeks equity must do equity”,
“He who comes to equity must come with clean hands”.
Some of the important principles and remedies developed by Equity Courts are recognition of
the right of beneficiary to trust property, remedy of specific performance of contracts, equity
of redemption in case of mortgages etc.
4. Statute Law: Statute law is that portion of law which is derived from the legislation or
enactment of Parliament or the subordinate and delegated legislative bodies. It is now a very
important source of Law.

MERCANTILE OR COMMERCIAL LAW

Branches of Mercantile Law
There are many branches of law; viz
1. Constitutional Law
2. Administrative Law
3. Criminal Law
4. Mercantile of Commercial Law

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 24
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

SOURCES OF INDIAN MERCANTILE LAW

The main sources of Indian Mercantile Law are:

English Mercantile Law

Acts enacted by Indian Legislature

Judicial Decisions

Customs and Trade Usages

1. English Mercantile Law: The Indian Mercantile Law is mainly an adaptation of English
Mercantile Law. Now in the absence of provisions relating to any matter in the Indian Law,
recourse is to be had to the English Mercantile Law.
2. Acts enacted by Indian Legislature or Statute Law:
i. The Indian Contract Act, 1872
ii. The Sale of Goods Act, 1930
iii. The Indian Partnership Act, 1932
iv. The Negotiable Instruments Act, 1881
v. The Arbitration and Conciliation Act, 1996
vi. The Insurance Act, 1938.
3. Judicial Decisions: Judges interpret and explain the statutes. Whenever the law is silent on a
point, the judge has to decide the case according to the principles of justice, equity and good
conscience.
4. Customs and Trade Usages

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 25
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

LIFE IS LIKE A MCQ, SOMETIMES IT’S THE CHOICE THAT CONFUSES YOU, NOT THE
QUESTION ITSELF. LET’S CRACK IT!

Important
Points

what a thing is only if one examines

what it does. LEVANCE OF LAW TO CIVIL SOCIETY

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 26
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

RELRELEVANCE OF LAW TO CIVIL SOCIETYEVANCE OF LAW TO CIVIL SOCIETY

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 1. 27
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

CHAPTER 2 – CONSTITUTION OF INDIA

BROAD FRAMEWORK OF THE CONSTITUTION

The Constitution of India came into force on January 26, 1950. It is a comprehensive document
containing 395 Articles (divided into 22 Parts) and 12 Schedules.
All public authorities – legislative, administrative and judicial derive their powers directly or
indirectly from it and the Constitution derives its authority from the people. The Constitution
of the country reflects the basic principles and laws of a nation, state, or social group that
determine the powers and duties of the government and guarantee certain rights to the people
in it. It reflects the ideology and system of the Nation. It is the prime source of other laws.

STRUCTURE
Constitution of India is basically federal but with certain unitary features.
The majority of the Supreme Court judges in Kesavananda Bharati v. State of Kerala, were
of the view that the federal features form the basic structure of the Indian Constitution.
However, there is some controversy as to whether the Indian Constitution establishes a federal

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.1
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

system or it stipulates a unitary form of Government with some basic federal features Thus,
to decide whether our Constitution is federal, unitary or quasi federal, it would be better to
have a look at the contents of the Constitution.

The essential features of a Federal Polity or System are:

i. Dual Government,
ii. Distribution of powers,
iii. Supremacy of the Constitution,
iv. Independence of Judiciary,
v. Written Constitution,
vi. Rigid procedure for the amendment of the Constitution.

The political system introduced by our Constitution possesses all the aforesaid essentials
of a federal polity as follows:
1. In India, there are Governments at different levels, like Union and States.
2. Powers to make laws have been suitably distributed among them by way of various lists as per
the Seventh Schedule.
3. Both Union and States have to follow the Constitutional provisions when they make laws.
4. The Judiciary is independent.
5. The Constitution is supreme and if it is to be amended, it is possible only by following the
procedure explained in Article 368 of the Constitution itself.
From the above, it is clear that the Indian Constitution basically has federal features.

JUDICIAL VIEW
The question as to whether the Indian Constitution has a federal form of Government or a
unitary constitution with some federal features came up in various cases before the Supreme
Court and the High Courts. The question rests mostly on value judgement, i.e., on one’s own
philosophy.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.2
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

Indian Constitution differs from the federal systems of the world in certain fundamental
aspects, which are as follows:
1. The Mode of Formation: India had a thoroughly Centralised Unitary Constitution until the
Government of India Act, 1935 which for the first time set up a federal system in the manner
as in Canada viz., by creation of autonomous units and combining them into a federation by
one and the same Act.
2. Position of the States in the Federation: In India, as the States were not previously sovereign
entities, the rights were exercised mainly by Union, e.g., residuary powers.
3. Citizenship etc.: There is single citizenship in India, with no division of public services or of
the judiciary.
4. Residuary Power: Residuary power is vested in the Union.
In other words, the Constitution of India is neither purely federal nor purely unitary. It is a
combination of both hence it is ‘Quasi Federal’

FUNDAMENTAL RIGHTS
The Constitution seeks to secure to the people “liberty of thought, expression, belief, faith and
worship; equality of status and of opportunity; and fraternity assuring the dignity of the
individual”. With this object, the fundamental rights are envisaged in Part III of the
Constitution.
Part III of the Indian Constitution guarantees six categories of fundamental rights. These
are:

Right to Equality

(Article 14 & 18)

Right to Constitutional
Remedies Right to Freedom

(Article 32) (Article 19& 22)

Cultural and
Educational Rights Right against Exploitation

(Article 29 & 30) (Article 23&24)

Right to Freedom of
Religion

(Article 25 & 28)

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.3
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

Earlier the right to property under Article 31 was also guaranteed as a Fundamental Right
which has been removed by the 44th Constitutional Amendment Act, 1978. Now right to
property is not a fundamental right, it is only a legal right.

DEFINITION OF STATE
The State includes:
1. The Government and Parliament of India;
2. The Government Legislature of each of the States; and
3. All local or other authorities:
i. within the territory of India; or
ii. under the control of the Government of India.

1. The expression ‘local authorities’ refers to authorities like Municipalities, District Boards,
Panchayats, Improvement Trusts, Port Trusts and Mining Settlement Boards.
2. The Supreme Court has held that ‘other authorities will include all authorities created by the
Constitution or statute on whom powers are conferred by law and it is not necessary that the
authority should engage in performing government functions.
3. Electricity authorities being State within the meaning of Article 12, their action can be judicially
reviewed by this Court under Article 226 of the Constitution of India. (Angur Bala Parui)
4. University is an authority (University of Madras v. Shanta Bai)
5. The Gujarat High Court has held that the President is “State” when making an order. In Bidi
Supply Co. v. Union of India, State was interpreted to include its Income-tax department.
6. Statutory and Non-statutory bodies which are not substantially generally financed by the
government don’t come under definition of state. Examples are autonomous bodies,
Cooperatives, NCERT etc. In Chandra Mohan Khanna v. NCERT it was held that NCERT is
not a State.
7. Satish Nayak v. Cochin Stock Exchange Ltd. the Kerala High Court held that since a Stock
Exchange was independent of Government control and was not discharging any public duty, it
cannot be treated as ‘other authority’ under Article 12.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.4
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

8. In Ajay Hasia v. Khalid Mujib, the Supreme Court has enunciated the following test for
determining whether an entity is an instrumentality or agency of the State:
i. If the entire share capital of the Corporation is held by the Government, it would go a long
way towards indicating that the corporation is an instrumentality or agency of the Government.
ii. Where the financial assistance of the State is so much as to meet almost the entire expenditure
of the corporation it would afford some indication of the corporation being impregnated with
government character.
iii. Whether the corporation enjoys a monopoly status which is conferred or protected by the State.
iv. Existence of deep and pervasive State control may afford an indication that the corporation is
a state agency or an instrumentality.
v. If the functions of the corporation are of public importance and closely related to government
functions, it would be a relevant factor in classifying a corporation as an instrumentality or
agency of government.
vi. If a department of government is transferred to a corporation, it would be a strong factor
supporting an inference of the corporation being an instrumentality or agency of government.

9. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, CSIR is an instrumentality of

“the State” falling within the scope of Article 12.
10. In Zee Telefilms Ltd. v. Union of India, Board of Control for Cricket in India (BCCI) was not
State for purposes of Article 12 because it was not shown to be financially, functionally or
administratively dominated by or under the control of the Government and control exercised
by the Government was not pervasive but merely regulatory in nature.
11. Judiciary although an organ of State like the executive and the legislature, is not specifically
mentioned in Article 12. However, the position is that where the Court performs judicial
functions, e.g., determination of scope of fundamental rights vis-a-vis legislature or executive
action, it will not occasion the infringement of fundamental rights and therefore it will not
come under ‘State’ in such situation. While in exercise of non-judicial functions e.g., in exercise
of rule-making powers, where a Court makes rules which contravene the fundamental rights of
citizens, the same could be challenged treating the Court as ‘State’.
(While performing Judicial Functions – Judiciary will not be treated as ‘State’ on the other
hand while performing non judicial functions – Judiciary will be treated as ‘State’)

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.5
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

JUSTIFIABILITY OF FUNDAMENTAL RIGHTS

Article 13 gives teeth to the fundamental rights. It lays down the rules of interpretation in
regard to laws inconsistent with or in derogation of the Fundamental Rights.
Further it divides law into two:
1. Existing Laws:
Article 13(1) relates to the laws already existing in force, i.e., laws which were in force before
the commencement of the Constitution (pre constitutional laws). A declaration by the Court
of their invalidity, however, will be necessary before they can be disregarded and declares that
pre-constitution laws are void to the extent to which they are inconsistent with the
fundamental rights.

2. Future Laws:
i. Article 13(2) relates to future laws, i.e., laws made after the commencement of the
Constitution. After the Constitution comes into force the State shall not make any law which
takes away or abridges the rights conferred by Part III and if such a law is made, it shall be
void to the extent to which it curtails any such right.
ii. The word ‘law’ according to the definition given in Article 13 itself includes –
“any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the
territory of India, the force of law.”
iii. An issue came up before the Supreme Court as to whether a Constitutional Amendment by
which a fundamental right included in Part III is taken away or abridged is also a law within
the meaning of Article 13. The Court twice rejected the view that it includes a Constitutional
Amendment, but third time in the famous Golaknath case the Court took the view that it
includes such an amendment and, therefore, even a Constitutional amendment would be void
to the extent it takes away or abridges any of the fundamental rights.
iv. By the Constitution (Twenty-Fourth Amendment) Act, 1971 a new clause has been added to
Article 13 which provides that – “Nothing in this Article shall apply to any amendment of this
Constitution made under Article 368”
v. Article 13 came up for judicial review in a number of cases and the Courts have evolved
doctrines like doctrine of eclipse, severability, prospective overruling, acquiescence etc. for
interpreting the provisions of Article 13.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.6
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

DOCTRINE OF SEVERABILITY
i. One thing to be noted in Article 13 is that, it is not the entire law which is affected by the
provisions in Part III, but the law becomes invalid only to the extent to which it is inconsistent
with the Fundamental Rights.
ii. So only that part of the law will be declared invalid which is inconsistent, and the rest of the
law will stand.
iii. However, on this point a clarification has been made by the Courts that invalid part of the
law shall be severed and declared invalid if really it is severable, i.e., if after separating the
invalid part the valid part is capable of giving effect to the legislature’s intent, then only it
will survive, otherwise the Court shall declare the entire law as invalid. This is known as the
rule of severability.
iv. Article 13 only says that any law which is inconsistent with the fundamental rights is void “to
the extent of inconsistency” and this has been interpreted to imply that it is not necessary
to strike down the whole Act as invalid, if only a part is invalid and that part can survive
independently.
v. In A.K. Gopalan v. State of Madras, the Supreme Court ruled that where an Act was partly
invalid, if the valid portion was severable from the rest, the valid portion would be maintained,
provided that it was sufficient to carry out the purpose of the Act.

DOCTRINE OF ECLIPSE
i. A law made before the commencement of the Constitution remains eclipsed or dormant to the
extent it comes under the shadow of the fundamental rights, i.e., is inconsistent with it, but
the eclipsed or dormant parts become active and effective again if the prohibition brought
about by the fundamental rights is removed by the amendment of the Constitution. This is
known as the doctrine of eclipse.
ii. The doctrine was first evolved in Bhikaji Narain Dhakras v. State of M.P. In this case, the
validity of C.P. and Berar Motor Vehicles Amendment Act, 1947, empowering the Government
to regulate, control and to take up the entire motor transport business was challenged.
iii. The Act was perfectly a valid piece of legislation at the time of its enactment. But on the
commencement of the Constitution, the existing law became inconsistent under Article 13(1),
as it contravened the freedom to carry on trade and business under Article 19(1)(g).

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.7
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

iv. To remove the infirmity the Constitution (First Amendment) Act, 1951 was passed which
permitted creation by law of State monopoly in respect of motor transport business.
v. “The true position is that the impugned law became as it were, eclipsed, for the time being,
by the fundamental right. The effect of the Constitution amendment was to remove the
shadow and to make the impugned Act free from all infirmity.”

WAIVER
The doctrine of waiver of rights is based on the premise that a person is his best judge and
that he has the liberty to waive the enjoyment of such rights as are conferred on him by the
State. However, the person must have the knowledge of his rights and that the waiver should
be voluntary. The doctrine was discussed in Basheshar Nath v. C.I.T, where the majority
expressed its view against the waiver of fundamental rights. It was held that it was not open
to citizens to waive any of the fundamental rights. Any person aggrieved by the consequence
of the exercise of any discriminatory power, could be heard to complain against it.

SINGLE PERSON LAW

i. A law may be constitutional, even though it relates to a single individual, if that single individual
is treated as a class by himself on some peculiar circumstances.
ii. The case is Charanjit Lal Chowdhary v. Union of India, In this case, the petitioner was an
ordinary shareholder of the Sholapur Spinning and Weaving Co. Ltd. The company through its
directors had been managing and running a textile mill of the same name.
iii. Later, on account of mis-management, a situation had arisen that brought about the closing
down of the mill, thus affecting the production of an essential commodity, apart from causing
serious unemployment amongst certain section of the community.
iv. The Central Government issued an Ordinance which was later replaced by an Act, known as
Sholapur Spinning & Weaving Co. (Emergency Provisions) Act, 1950. With the passing of this
Act, the management and the administration of the assets of the company were placed under
the control of the directors appointed by the Government. As regards the shareholders, the Act
declared that they could neither appoint a new director nor could take proceedings against the
company for winding up.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.8
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

v. The petitioner filed a writ petition on the ground that the said Act infringed the rule of equal
protection of laws as embodied in Article 14, because a single company and its shareholders
were subjected to disability as compared with other companies and their shareholders.
vi. The Supreme Court dismissed the petition and held the legislation as valid. It laid down that
the law may be constitutional even though it applies to a single individual if on account of
some special circumstances or reasons applicable to him only, that single individual may be
treated as a class by himself.

RIGHT OF EQUALITY
Articles 14 to 18 of the Constitution deal with equality and its various facets.

ARTICLE 14: EQUALITY BEFORE THE LAW AND EQUAL PROTECTION OF THE LAWS
1. Article 14 of the Constitution says that “the State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India”.
2. Article 14 guarantees to every person the right to equality before the law or the equal protection
of the laws. The expression ‘equality before the law’ which is borrowed from English Common
Law is a declaration of equality of all persons within the territory of India, implying thereby
the absence of any special privilege in favour of any individual. Every person, whatever be his
rank or position is subject to the jurisdiction of the ordinary courts.
3. The second expression “the equal protection of the laws” which is based on the last clause of
the first section of the Fourteenth Amendment to the American Constitution directs that equal
protection shall be secured to all persons within the territorial jurisdiction of the Union in the
enjoyment of their rights and privileges without favouritism or discrimination. Article 14 applies
to all persons and is not limited to citizens.
4. A corporation, which is a juristic person, is also entitled to the benefit of this Article.
5. Equals are to be governed by the same laws. But as regards unequal’s, the same laws are not
complemented. In fact, that would itself lead to inequality.
6. Equality is a comparative concept. A person is treated unequally only if that person is treated
worse than others, and those others (the comparison group) must be those who are ‘similarly
situated’ to the complainant.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.9
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

Legislative classification
A right conferred on persons that they shall not be denied equal protection of the laws does
not mean the protection of the same laws for all. It is here that the doctrine of classification
steps in and gives content and significance to the guarantee of the equal protection of the
laws.
The Supreme Court in a number of cases has upheld the view that Article 14 does not rule out
classification for purposes of legislation. Article 14 does not forbid classification which rests
upon reasonable grounds of distinction, it forbids class legislation.

Test of valid classification

Supreme Court in State of West Bengal v. Anwar Ali Sarkar, Permissible classification must
satisfy two conditions, namely:
1. It must be founded on an intelligible differentia which distinguishes persons or things that are
grouped together from others left out of the group; and
2. The differentia must have a rational nexus with the object sought to be achieved by the
statute in question.
A law based on a permissible classification fulfils the guarantee of the equal protection of the
laws and is valid. On the other hand, if it is based on an impermissible classification, it violates
that guarantee and is void.

Scope of Article 14
The true meaning and scope of Article 14 has been explained in several decisions of the Supreme
Court. The rules with respect to permissible classification as evolved in the various decisions
have been summarised by the Supreme Court in Ram Kishan Dalmiya v. Justice Tendulkar, as
follows:
1. Article 14 forbids class legislation, but does not forbid classification.
2. Permissible classification must satisfy two conditions,
i. Intelligible differentia,
ii. the differentia must have a relation to the object sought to be achieved by the statute in
question.
3. In permissible classification, mathematical nicety and perfect equality are not required.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.10
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

4. Even a single individual may be treated a class by himself on account of some special
circumstances.
5. Article 14 condemns discrimination not only by substantive law but by a law of procedure.
6. There is always a presumption in favour of the constitutionality of an enactment and the
burden is upon him who attacks it to show that there has been a clear transgression of the
constitutional principles.
A remarkable example of the application of the principle of equality under the Constitution is
the decision of the Constitution Bench of the Supreme Court in R.K. Garg v. Union of India,
the legislation under attack was the Special Bearer Bonds (Immunities and Exemptions) Act,
1981. It permitted investment of black money in the purchase of these Bonds without any
questions being asked as to how this money came into the possession.
In public interest litigation it was contended that Article 14 had been violated, because honest
tax payers were adversely discriminated against by the Act, which legalized evasion. But the
Supreme Court rejected the challenge, taking note of the magnitude of the problem of black
money which had brought into being a parallel economy.

ARTICLE 15: PROHIBITION OF DISCRIMINATION ON GROUNDS OF RELIGION ETC.

Article 15(1) prohibits the State from discriminating against any citizen on grounds only of:

Place of Any of
Religion Race Caste Sex
Birth them

Article 15(2) lays down that no citizen shall be subjected to any disability, restriction or
condition with regard to:
1. Access to shops, public restaurants, hotels and places of public entertainment; or
2. The use of wells, tanks, bathing ghats, roads and places of public resort, maintained wholly or
partially out of State funds or dedicated to the use of the general public.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.11
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

Under Article 15(3) the State can make special provision for women and children.
Article 15(4) permits the State to make special provision for the advancement of:
1. Socially and educationally backward classes of citizens;
2. Scheduled castes; and
3. Scheduled tribes.
Article 15(5) inserted in the Constitution of India under the Constitution (Ninety-third
Amendment) Act, 2005, permits the State to make special provision for the advancement of
any socially and educationally backward classes of citizens or for the Scheduled Castes or the
Scheduled Tribes in so far as such special provisions relate to their admission to educational
institutions including private educational institutions, whether aided or unaided by the State.
Article 15(6) inserted in the Constitution of India provides that nothing in this article shall
prevent the State from making:
1. Any special provision for the advancement of any economically weaker sections of citizens.
2. Any special provision for the advancement of any economically weaker sections of citizens in
so far as such special provisions relate to their admission to educational institutions including
private educational institutions, whether aided or unaided by the State, which in the case of
reservation would be in addition to the existing reservations and subject to a maximum of ten
per cent. of the total seats in each category.

ARTICLE 16: EQUALITY OF OPPORTUNITY IN MATTERS OF PUBLIC EMPLOYMENT

Article 16(1) guarantees to all citizens’ equality of opportunity in matters relating to
employment or appointment of office under the State.
Article 16(2) prohibits discrimination against a citizen on the grounds of religion, race, caste,
sex, descent, place of birth or residence.
However, there are certain exceptions provided in Article 16(3), 16(4) and 16(5). These are as
under:
1. Parliament can make a law that in regard to a class or classes of employment or appointment
to an office under the Government of a State on a Union Territory, under any local or other
authority within the State or Union Territory, residence within that State or Union Territory
prior to such employment or appointment shall be an essential qualification. [Article 16(3)]

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.12
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

2. A provision can be made for the reservation of appointments or posts in favour of any backward
class of citizens which in the opinion of the State is not adequately represented in the services
under the State. [Article 16(4)]
3. The State may make a law for reservation in matters of promotion, with consequential seniority,
to any class or classes of posts in the services under the State in favour of the Scheduled
Castes and the Scheduled Tribes. [Article 16(4A)]
4. The State may consider any unfilled vacancies of a year which are reserved for being filled up
in that year in accordance with any provision for reservation made under clause (4) or clause
(4A) as a separate class of vacancies to be filled up in any succeeding year or years and such
class of vacancies shall not be considered together with the vacancies of the year in which
they are being filled up for determining the ceiling of fifty per cent. reservation on total number
of vacancies of that year. [Article 16(4B)]
5. A law shall not be invalid if it provides that the incumbent of an office in connection with
the affair of any religious or denominational institution or any member of the governing body
thereof shall be a person professing a particular religion or belonging to a particular
denomination. [Article 16(5)]
6. The State may make a law for the reservation of appointments or posts in favour of any
economically weaker sections of citizens in addition to the existing reservation and subject to
a maximum of ten per cent. of the posts in each category. [Article 16(6)]

RIGHTS RELATING TO FREEDOM

Articles 19-22 guarantee certain fundamental freedoms.
Article 19(1), of the Constitution, guarantees to the citizens of India six freedoms, namely:

Freedom of Speech and Expression

Assemble peaceably and without arms.
Form associations or unions or co-operative societies
Move freely throughout the territory of India
Reside and settle in any part of the territory of India
Practise any profession, or to carry on any occupation, trade or business

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.13
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

The Constitution under Articles 19(2) to 19(6) permits the imposition of restrictions on these
freedoms subject to the following conditions:
1. The restriction can be imposed by law and not by a purely executive order issued under a
statute;
2. The restriction must be reasonable;
3. The restriction must be imposed for achieving one or more of the objects specified in the
respective clauses of Article 19.

Reasonableness
It is very important to note that the restrictions should be reasonable. The following factors
are usually considered to assess the reasonableness of a law:
1. The objective of the restriction;
2. The nature, extent and urgency of the evil sought to be dealt with by the law in question;
3. How far the restriction is proportion to the evil in question;
4. Duration of the restriction;
5. The conditions prevailing at the time when the law was framed.

Scope and Limitations on the Freedoms

1. Right to freedom of speech and expression
i. A democratic Government attaches a great importance to this freedom because without freedom
of speech and expression the appeal to reason which is the basis of democracy cannot be
made. The right to speech and expression includes right to make a good or bad speech and
even the right of not to speak.
ii. The Supreme Court in Cricket Association of Bengal v. the Secretary, Ministry of Information
& Broadcasting has held that this freedom includes the right to communicate through any
media - print, electronic and audio visual.
iii. The freedom of speech and expression under Article 19(1)(a) means the right to express one’s
convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode.
This freedom includes the freedom of press as it partakes of the same basic nature and
characteristic. However no special privilege is attached to the press as such, distinct from
ordinary citizens.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.14
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

iv. The right to know, ‘receive and impart information’ has been recognized within the right to
freedom of speech and expression.
v. The right to reply, i.e., the right to get published one’s reply in the same news media in which
something is published against or in relation to a person has also been recognised under Article
19(1)(a)
vi. Clause (2) of Article 19 specifies the limits up to which the freedom of speech and expression
may be restricted. It enables the Legislature to impose by law reasonable restrictions on the
freedom of speech and expression under the following heads:

Soverignity and integrity of India

Security of the State

Friendly relations with foreign states

Permissible Public order

Restrictions
Decency or morality

Contempt of court

Defamation

Incitment to an offence

Reasonable restrictions under these heads can be imposed only by a duly enacted law and not
by the executive action.

2. Freedom of assembly
The next right is the right of citizens to assemble peacefully and without arms State is also
authorised to impose reasonable restrictions on this right in the interests of:
i. the sovereignty and integrity of India, or
ii. public order.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.15
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

3. Freedom of association
The freedom of association includes freedom to hold meeting and to takeout processions without
arms. Right to form associations for unions is also guaranteed so that people are free to have
the members entertaining similar views.
This right is also, however, subject to reasonable restrictions which the State may impose in
the interests of:
i. the sovereignty and integrity of India, or
ii. public order, or
iii. morality.
The Supreme Court observed that assuming the right to form an association “implies a right
not to form an association, it does not follow that the negative right must also be regarded
as a fundamental right”.
However, the High Court of Andhra Pradesh has held, that this right necessarily implies a right
not to be a member of an association. Hence, the rules which made it compulsory for all
teachers of elementary schools to become members of an association were held to be void as
being violative of Article 19(1)(c)

4. Freedom of movement
Right to move freely throughout the territory of India is another right guaranteed under Article
19(1)(d). The State may impose:
i. in the interests of the general public, or
ii. for the protection of the interests of any scheduled tribe.

5. Freedom of residence
Article 19(1)(e) guarantees to a citizen the right to reside and settle in any part of the
territory of India. This freedom is also subject to reasonable restrictions in the interests of
general public or for the protection of the interests of any Scheduled Tribe under Article 19(5).

6. Right to acquire, hold and dispose of property – deleted by 44th Amendment in 1978.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.16
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

7. Freedom to trade and occupations

Article 19(1)(g) provides that all citizens shall have the right to practise any profession, or to
carry on any occupation, trade or business. The words ‘trade’, ‘business’, ‘profession’ used in
this Article have received a variety of interpretations. The word ‘trade’ has been held to include
the occupation of men in buying and selling, barter or commerce, work, especially skilled, thus
of the widest scope.
The word ‘business’ is more comprehensive than the word ‘trade’. Each case must be decided
according to its own circumstances, applying the common-sense principle as to what business
is. A profession on the other hand, has been held ordinarily as an occupation requiring
intellectual skill, often coupled with manual skill. Like other freedoms discussed above, this
freedom is also subject to reasonable restrictions.
Nothing in sub-clause (g) shall affect the operation of any existing law or prevent the State
from making any law relating to:
i. the professional or technical qualifications necessary for practising any profession or carrying
on any occupation, trade or business, or
ii. the carrying on by the State, or by a corporation owned or controlled by the State, of any
trade, industry or service whether to the exclusion, complete or partial, of citizens or otherwise.
Article 19(1)(g) of the Constitution guarantees that all citizens have the right to practice any
profession or to carry on any occupation or trade or business. The freedom is not uncontrolled
and permits those legislation which:
i. imposes reasonable restrictions on this freedom in the interests of the general public;
ii. prescribes professional or technical qualifications necessary for carrying on any profession,
trade or business; and
iii. enables the State to carry on any trade or business to the exclusion of private citizens,
wholly or partially.

8. Monopoly
i. The Supreme Court’s decision in Chintamana Rao v. State of M.P., AIR is a leading case on
the point where the constitutionality of Madhya Pradesh Act was challenged.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.17
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

ii. The State law prohibited the manufacture of bidis in the villages during the agricultural season.
No person residing in the village could employ any other person nor engage himself, in the
manufacture of bidis during the agricultural season.
iii. The object of the provision was to ensure adequate supply of labour for agricultural purposes.
The bidi manufacturer could not even import labour from outside, and so, had to suspend
manufacture of bidis during the agricultural season. Even villager’s incapable of engaging in
agriculture, like old people, women and children, etc., who supplemented their income by
engaging themselves manufacturing bidis were prohibited without any reason. The prohibition
was held to be unreasonable.
iv. However, after the Constitutional (Amendment) Act, 1951, the State can create a monopoly in
favour of itself and can compete with private traders.

PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES

Articles 20, 21 and 22 provide a system of protection, relevant to the criminal law. Article 20
guarantees to all persons – whether citizens or non-citizens-three rights namely –
1. Protection against ex-post facto laws
i. According to Article 20(1), no person shall be convicted of any offence except for violation
of a law in force at the time of the commission of the act charged as an offence, nor be
subjected to a penalty greater than that which might have been inflicted under the law in
force at the time of the commission of the offence.
ii. Ex-post facto laws are laws which punished what had been lawful when done. If a particular
act was not an offence according to the law of the land at the time when the person did
that act, then he cannot be convicted under a law which with retrospective declares that act
as an offence.
iii. Even the penalty for the commission of an offence cannot be increased with retrospective
effect.
iv. it was clarified that Article 20(1) prohibited the conviction under an ex post facto law, and
that too the substantive law. This protection is not available with respect to procedural law.
Thus, no one has a vested right in procedure.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.18
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

2. Protection against double jeopardy

According to Article 20(2), no person can be prosecuted and punished for the same offence
more than once. It is, however, to be noted that the conjunction “and” is used between the
words prosecuted and punished, and therefore, if a person has been let off after prosecution
without being punished, he can be prosecuted again.

3. Protection against self-incrimination

According to Article 20(3), no person accused of any offence shall be compelled to be a
witness against himself. In other words, an accused cannot be compelled to state anything
which goes against him. But it is to be noted that a person is entitled to this protection, only
when all the three conditions are fulfilled:
i. that he must be accused of an offence;
ii. that there must be a compulsion to be a witness; and
iii. such compulsion should result in his giving evidence against himself.

PROTECTION OF LIFE AND PERSONAL LIBERTY

1. Article 21 confers on every person the fundamental right to life and personal liberty. It says
that, “No person shall be deprived of his life or personal liberty except according to procedure
established by law.”
2. The right to life includes those things which make life meaningful. For example, the right of
a couple to adopt a son is a constitutional right guaranteed under Article 21 of the Constitution.
The right to life enshrined in Article 21 guarantees right to live with human dignity. Right to
live in freedom from noise pollution is a fundamental right protected by Article 21 and noise
pollution beyond permissible limits is an inroad into that right.
3. Personal liberty’ is not limited to bodily restraint or to confinement to prison, only is well
illustrated in Kharak Singh v. State of U.P, In that case the question raised was of the validity
of the police regulations authorising the police to conduct what are called as domiciliary visits
against bad characters and to have surveillance over them.
4. The court held that such visits were an invasion, on the part of the police, of the sanctity of
a man’s home and an intrusion into his personal security and his right to sleep, and therefore
violative of the personal liberty of the individual, unless authorised by a valid law.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.19
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

5. As regards the regulations authorising surveillance over the movements of an individual the
court was of the view that they were not bad, as no right to privacy has been guaranteed in
the Constitution.
6. Refusal of an application to enter a medical college cannot be said to affect person’s personal
liberty under Article 21.
7. In Satwant Singh Sawhney v. A.P.O., New Delhi, it was held that right to travel is included
within the expression ‘personal liberty’ and, therefore, no person can be deprived of his right
to travel, except according to the procedure established by law.
8. Since a passport is essential for the enjoyment of that right, the denial of a passport amounts
to deprivation of personal liberty. In the absence of any procedure prescribed by the law of
land sustaining the refusal of a passport to a person, it’s refusal amounts to an unauthorised
deprivation of personal liberty guaranteed by Article 21. This decision was accepted by the
Parliament and the infirmity was set right by the enactment of the Passports Act, 1967.

Procedure established by law

1. The expression ‘procedure established by law’ means procedure laid down by statute or procedure
prescribed by the law of the State. Accordingly, first, there must be a law justifying interference
with the person’s life or personal liberty, and secondly, the law should be a valid law, and
thirdly, the procedure laid down by the law should have been strictly followed.
2. The procedure must be fair, just and reasonable. It must not be arbitrary, fanciful or oppressive.
3. Presently, this term personal liberty extends to variety of matters like right to bail, right not
to be handcuffed except under very few cases, right to speedy trial, right to free legal aid etc

ARTICLE 21A: RIGHT TO EDUCATION

This was introduced by the Constitution (Eighty sixth Amendment) Act, 2002. 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.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.20
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

PROTECTION AGAINST ARREST AND DETENTION

Although Article 21 does not impose a limitation on the legislature in so far as the deprivation
of life or personal liberty is concerned, yet a legislative Act providing for such deprivation is
subject to the procedural safeguards provided in Article 22 and if it 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:
i. alien enemies,
ii. person arrested or detained under preventive detention law.
So far as alien enemies are concerned the article provides no protection to them.

PREVENTIVE DETENTION
Preventive detention means detention of a person without trial. The object of preventive
detention is not to punish a person for having done something but to prevent him from doing
it. 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.
Parliament and State Legislatures are both entitled to pass a law of preventive detention for
reasons connected with the security of State, the maintenance of public order, or the
maintenance of supplies and services essential to the community.

Safeguards against Preventive Detention

Article 22 contains following safeguards against preventive detention:
1. such a person cannot be detained for a longer period than three months unless:
i. An Advisory Board constituted of persons who are or have been or are qualified to be High
Court judges has reported, before the expiration of the said period of three months that there
is, in its opinion sufficient cause for such detention.
ii. Parliament may by law prescribe the maximum period for which any person may in any class
or classes of cases be detained under any law providing for preventive detention and the
procedure to be followed by an Advisory Board.
2. The authority ordering the detention of a person under the preventive detention law shall:
i. communicate to him, the grounds on which the order for his detention has been made, and
ii. afford him the earliest opportunity of making the representation against the order.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.21
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

RIGHT AGAINST EXPLOITATION

1. Prohibition of traffic in human beings and forced labour

Did you know?
Article 23 imposes a complete ban on traffic in human beings,
Is there any Law which
beggar and other similar forms of forced labour. The contravention
prohibits trafficking?
of these provisions is declared punishable by law. Thus the Yes, there is the Immoral
traditional system of beggary particularly in villages, becomes Traffic (Prevention) Act,
1956 which deals with this
unconstitutional and a person who is asked to do any labour
subject.
without payment or even a labourer with payment against his desire
can complain against the violation of his fundamental right under Article 23.
‘Traffic’ in human beings means to deal in men and women like goods, such as to sell or let
or otherwise dispose them of. ‘Beggar’ means involuntary work without payment.

2. Prohibition of employment of children

Article 24 prohibits the employment of children below the age of fourteen in any factory or
mine.

RIGHT TO CONSTITUTIONAL REMEDIES

Article 32 guarantees the enforcement of Fundamental Rights.

REMEDIES FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS

1. Article 32 makes it a fundamental right that a person whose fundamental right is violated has
the right to move the Supreme Court by appropriate proceedings for the enforcement of this
fundamental right.
2. It is really a far-reaching provision in the sense that a person need not first exhaust the other
remedies and then go to the Supreme Court.
3. He can directly raise the matter before highest Court of the land and the Supreme Court is
empowered to issue directions or orders or writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of
the right, the violation of which has been alleged.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.22
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

4. the Supreme Court can always be approached for appropriate remedy against the violation of
such rights by private individuals.
5. A petitioner’s challenge under Article 32 extends not only to the validity of a law but also to
an executive order issued under the authority of the law. Court’s jurisdiction under Article 32
is ‘wide enough to reach out to injustice in any form’.
6. Article 32 empowers the Supreme Court to issue orders which enforce fundamental rights.

AMENDABILITY OF THE FUNDAMENTAL RIGHTS

1. Since 1951, questions have been raised about the scope of amending process contained in Article
368 of the Constitution. The basic question raised was whether the Fundamental Rights are
amendable, in I.C. Golak Nath v. State of Punjab, the Supreme Court had been holding that no
part of our Constitution was unamenable and that Parliament might, by passing a Constitution
Amendment Act, in compliance with the requirements of Article 368, amend any provision of
the Constitution, including the Fundamental Rights and Article 368 itself.
2. But, in Golak Nath’s case, a majority overruled the previous decisions and held that the
Fundamental Rights are outside the amendatory process if the amendment takes away or
abridges any of the rights. The majority, in Golak Nath’s case, rested its conclusion on the
view that the power to amend the Constitution was also a legislative power conferred by Article
245 by the Constitution, so that a Constitution Amendment Act was also a ‘law’ within the
purview of Article 13(2).
3.
i. To nullify the effect of Golak Nath’s case, Parliament passed the Constitution (Twenty-Fourth
Amendment) Act in 1971 introducing certain changes in Article 13 and Article 368, so as to
assert the power of Parliament (denied to it in Golak Nath’s case) to amend the Fundamental
Rights.
ii. The Constitutional validity of the 24th Amendment was challenged in the case of Kesavanand
Bharti v. State of Kerala the Supreme Court upheld the validity of 24th Constitutional
Amendment holding that Parliament can amend any Part of the Constitution including the
Fundamental Rights. But the Court made it clear that Parliament cannot alter the basic
structure or framework of the Constitution.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.23
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

iii. The doctrine of ‘basic structure’ placed a limitation on the powers of the Parliament to
introduce substantial alterations or to make a new Constitution. To neutralise the effect of
this limitation, the Constitution (Forty-Second Amendment) Act, 1976 added to Article 368
two new clauses.
iv. By new clause (4), it has been provided that no amendment of the Constitution made before
or after the Forty-Second Amendment Act shall be questioned in any Court on any ground.
v. New clause (5) declares that there shall be no limitation whatever on the Constitutional power
of parliament to amend by way of addition, variation or repeal the provisions of this Constitution
made under Article 368. The scope and extent of the application of the doctrine of basic
structure again came up for discussion before the Supreme Court in Minerva Mill Ltd. v. Union
of India.
vi. The Supreme Court unanimously held clauses (4) and (5) of Article 368 and Section 55 of
the 42nd Amendment Act as unconstitutional transgressing the limits of the amending power
and damaging or destroying the basic structure of the Constitution.
vii. The doctrine of basic structure provides a touchstone on which validity of the constitutional
amendment Act could be judged. Core constitutional values/ overarching principles like
secularism, 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.
viii. the Court held that under our Constitution, while some features are capable of being amended
by Parliament, pursuant to the amending power granted by Article 368, the essential features,
the basic structure of the Constitution is beyond such powers of Parliament. 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

The Sub-committee on Fundamental Rights constituted by the Constituent Assembly had
suggested two types of Fundamental Rights – one which can be enforced in the Courts of law
and the other which because of their different nature cannot be enforced in the law Courts.
Later on, however, the former was put under the head ‘Fundamental Rights’ as Part III which

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.24
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

we have already discussed and the latter were put separately in Part IV of the Constitution
under the heading ‘Directive Principles of State Policy’ which are discussed in the following
pages.
The Directives, however, differ from the Fundamental Rights contained in Part-III of the
Constitution or the ordinary laws of the land in the following respects:
1. The Directives are not enforceable in the courts and do not create any justiciable rights in
favour of individuals.
2. The Directives require to be implemented by legislation and so long as there is no law carrying
out the policy laid down in a Directive neither the state nor an individual can violate any
existing law.
3. The Directives per-se do not confer upon or take away any legislative power from the appropriate
legislature.
4. The courts cannot declare any law as void on the ground that it contravenes any of the
Directive Principles.
5. The courts are not competent to compel the Government to carry out any Directives or to make
any law for that purpose.
6. Though it is the duty of the state to implement the Directives, it can do so only subject to
the limitations imposed by the different provisions of the Constitution upon the exercise of
the legislative and executive power by the state.

CONFLICT BETWEEN A FUNDAMENTAL RIGHT AND A DIRECTIVE PRINCIPLE

“The Directive Principles of State Policy have to conform to and run as subsidiary to the
chapter of Fundamental Rights.”
The Court ruled that while the Fundamental Rights were enforceable, the Directive Principles
were not, and so the laws made to implement Directive Principles could not take away
Fundamental Rights.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.25
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

IMPORTANT DIRECTIVE PRINCIPLES

The important Directive Principles are enumerated below:
1. State to secure a social order for the promotion of welfare of the people:
i. The State must strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and political should inform
all the institutions of the national life
ii. The State shall, in particular, strive to minimise the inequalities in income and endeavour to
eliminate inequalities in status, facilities, and opportunities, not only amongst individuals but
also among groups of people residing in different areas or engaged in different vocations.
(Introduced by Constitution 44th Amendment Act).
2. Within the limits of economic capacity and development the State must make effective provision
for securing the right to work, to education and to public assistance in case of unemployment,
old age, etc.
3. Provision must be made for just and humane conditions of work and for maternity relief
4. The State must endeavour to secure living wage and good standard of life to all types of
workers and must endeavour to promote cottage industries on an individual of co-operative
basis in rural areas
5. The State take steps, by suitable legislation or in any other way, to secure the participation of
workers in the management of undertakings, establishments or other organisations engaged in
any industry
6. The State must endeavour to provide a uniform civil code for all Indian citizens
7. Provision for free and compulsory education for all children up to the age of fourteen years
8. The State must promote the educational and economic interests of Scheduled Castes, Scheduled
Tribes and other weaker sections
9. The State must regard it one of its primary duties to raise the level of nutrition and the
standard of living and to improve public health and in particular it must endeavour to bring
about prohibition of the consumption, except for medicinal purposes, in intoxicating drinks and
of drugs which are injurious to health
10. The State shall endeavour to protect and improve the environment and to safeguard the forests
and wild life of the country

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.26
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

11. Protection of monuments and places and objects of national importance is obligatory upon the
State
12. The State must separate executive from judiciary in the public services of the State

FUNDAMENTAL DUTIES
These Fundamental Duties are:

a. To abide by the constitution and respect its ideals and institutions, the National Flag
and the National Anthem,
b. To cherish and follow the noble ideals which inspired our national struggle for
freedom,
c. To uphold and protect the sovereignty, unity and integrity of India,
d. To defend the country and render national service when called upon to do so,
e. To promote harmony and the spirit of common brotherhood amongst all the people of
India transcending, religious, linguistic and regional or sectional diversities; to renounce
practices derogatory to the dignity of women,
f. To value and preserve the rich heritage of our composite culture,
g. To protect and improve the natural environment including forests, lakes, rivers and
wild life, and to have compassion for living creatures,
h. To develop the scientific temper, humanism and the spirit of Inquiry and reform,
i. To safeguard public property and to abjure violence,
j. To strive towards excellence in all spheres of individual and collective activity so that
the nation constantly rises to higher levels of endeavour and achievement,
k. To provide opportunities for education to one’s child or, as the case may be, ward
between the age of six and fourteen years.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.27
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

ORDINANCE MAKING POWERS

I. OF THE PRESIDENT
In Article 53 the Constitution lays down that the “executive power of the Union shall be
vested in the President”. The President of India shall, thus, be the head of the ‘executive
power’ of the Union. various powers that are included within the comprehensive expression
‘executive power’ in a modern state have been classified under various heads as follows:
i. Administrative Power
ii. Military Power
iii. Legislative Power
iv. Judicial Power

Ordinance-making power
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. The ambit of this Ordinance-making
power of the President is co-extensive with the legislative powers of Parliament, that is to say
it may relate to any subject in respect of which parliament has the right to legislate and is
subject to the same constitutional limitations as legislation by Parliament.
According to Article 13(3)(a) “Law” includes an “Ordinance”. But an Ordinance shall be of
temporary duration. This independent power of the executive to legislate by Ordinance has the
following peculiarities:
i. The Ordinance-making power will be available to the President only when both the Houses of
Parliament are not in session or either house is not in session, so that it is not possible to
have a law enacted by Parliament.
ii. This power is to be exercised by the President on the advice of his Council of Ministers.
iii. The President must be satisfied about the need for the Ordinance and he cannot be compelled.
The Ordinance must be laid before Parliament when it re-assembles, and shall automatically
cease to have effect at the expiration of 6 weeks from the date of re-assembly or before
resolutions have been passed disapproving the Ordinance.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.28
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

iv. The period of six weeks will be counted from the latter date if the Houses reassemble on
different dates.

II. OF THE GOVERNOR

The executive power of the State is vested in the Governor and all executive action of the
State has to be taken in the name of the Governor. Normally there shall be a Governor for
each State but the same person can be appointed as Governor for two or more States. The
Governor of a State is not elected but is appointed by the President and holds his office at
the pleasure of the President. The head of the executive power to a State is the Governor just
as the President for the Union.
The Governor possesses executive, legislation and judicial powers as the President’s except that
he has no diplomate or military powers like the President.

Ordinance making power

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. He can
make Ordinance only when the State Legislature or either of the two Houses (where it is
bicameral) is not in session. He must be satisfied that circumstances exist which render it
necessary to take immediate action. While exercising this power Governor must act with the
aid and advise of the Council of Ministers.
But in following cases the Governor cannot promulgate any Ordinance without instructions from
the President:
i. If a Bill containing the same provisions would under this Constitution have required the previous
section of the President.
ii. He would have deemed it necessary to reserve a Bill containing the same provisions for the
consideration of the President.
iii. An Act of the State legislature containing the same provisions would under this Constitution
have been invalid under having been reserved for the consideration of the President, it had
received the assent of the President.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.29
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

The Ordinance must be laid before the state legislature (when it re-assembles) and shall
automatically cease to have effect at the expiration of six weeks from the date of the re-
assembly unless disapproved earlier by that legislature.

LEGISLATIVE POWERS OF THE UNION AND THE STATES

1. Two Sets of Government

i. The Indian Constitution is essentially federal.
ii. A federal constitution establishes a dual polity as it comprises two levels of Government.
iii. At one level, there exists a Central Government having jurisdiction over the whole country and
reaching down to the person and property of every individual therein.
iv. At the other level, there exists the State Government each of which exercises jurisdiction in
one of the States into which the country is divided under the Constitution.
v. A citizen of the federal country thus becomes subject to the decrees of two Government –
the central and the state.
vi. The Union of India is now composed of 29 States and both the Union and the States derive
their authority from the Constitution which divides all powers-legislative, executive and
financial, between them.
vii. The result is that the States are not delegates of the Union and though there are agencies
and devices for Union control over the States in many matters, the States are autonomous
within their own spheres as allotted to them by the Constitution.

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. Thus, while the laws of the Union
can be enforced throughout the territory of India, the laws of a State cannot be operative
beyond the territorial limits of that State.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.30
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

A. Parliament
i. 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.
ii. A law made by Parliament is not invalid merely because it has an extraterritorial operation.
Article 246(4) provides that Parliament can make a law for a Union and also for any state
Territory with respect to any matter, even if it is one which is enumerated in the State List.
iii. With regard to Union Territories, there is no distribution of legislative powers. Parliament has
thus plenary powers to legislate for the Union Territories with regard to any subject.

B. State Legislature
a) 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”.
b) 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. The sufficiency
of the nexus is to be seen on the basis of the test laid down by our Supreme Court in State
of Bombay v. R.M.D.C., according to which two conditions, must be fulfilled:
i. the connection must be real and not illusory; and
ii. the liability sought to be imposed by that law must be pertinent to that connection.
To illustrate:
A newspaper in the name of “Sporting Star” was published and printed at Bangalore. It
contained crossword puzzles and engaged in prize competitions. It had wide circulation in the
State Maharashtra and most of its activities such as the standing invitations, the filling up of
the forms and the payment of money took place within that State. Maharashtra imposed a
tax on the newspaper. The publishers challenged the validity of the law on the ground that it
was invalid in so far it covered a subject matter falling beyond the territory of that State
because the paper was published in another State. The Supreme Court, applying the doctrine
of territorial nexus, held that the nexus was sufficient between the law and its subject-matter
to justify the imposition of the tax. So, in this way, the state laws may also have a limited
extra-territorial operation.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.31
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

DISTRIBUTION OF SUBJECT MATTER OF LEGISLATION

i. The Government of India Act, 1935 followed the Canadian pattern in regards to distribution of
subject matter of Legislation.
ii. The Constitution of India, substantially follows the pattern of the Government of India Act,
1935 subject to the modification that the residuary subjects have been left for the Union as
in Canada.
iii. To understand the whole scheme, the Constitution draws three long lists of all the conceivable
legislative subjects. These lists are contained in the VIIth Schedule to the Constitution.
iv. List I is named as the Union List. List II as the State List and III as the Concurrent List.
v. Thus, those subjects which are of national interest or importance, or which need national
control and uniformity of policy throughout the country have been included in the Union List;
the subjects which are of local or regional interest and on which local control is more expedient,
have been assigned to the State List and those subjects which ordinarily are of local interest
yet need uniformity on national level or at least with respect to some parts of the country,
i.e., with respect, to more than one State have been allotted to the Concurrent List.

POWER OF PARLIAMENT TO MAKE LAWS ON STATE LIST

The State legislatures have the exclusive powers to make laws with respect to the subjects
included in the State List and Parliament has no power to encroach upon them. However, our
Constitution makes a few exceptions to this general rule by authorising Parliament to make
law even on the subjects enumerated in the State List.
Following are the exceptions which the Constitution so recognises:
A. In the National Interest (Article 249)
i. Parliament can make a law with respect to a matter enumerated in the State List if the
Council of States declares by a resolution supported by two-thirds of its members present and
voting, that it is necessary or expedient in the national interest that Parliament should make
a law on that matter.
ii. By such declaration Parliament gets the authority to legislate on that matter for the whole or
part of the country so long as the resolution of the Council of States remains in force.
iii. But such resolution shall remain in force for a period not exceeding one year. However, a fresh
resolution can be passed at the end of one year to give extended lease to the law of Parliament

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.32
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

and that way the law of Parliament can be continued to remain in force for any number of
years.
iv. The laws passed by Parliament under the provision cease to have effect automatically after six
months of the expiry of the resolution period. Beyond that date, such Parliamentary law
becomes inoperative except as regards the thing done or omitted to be done before the expiry
of that law.

B. During a proclamation of emergency (Article 250)

i. While a Proclamation of Emergency is in operation, Article 250 of the Constitution of India
removes restrictions on the legislative authority of the Union Legislature in relation to the
subjects enumerated in the State List.
ii. Thus, during emergency, Parliament shall have power to make laws for the whole or any part
of the territory of India with respect to all matters in the State List. These laws will cease to
have effect on the expiration of six months after the proclamation ceases to operate. After
that date, such Union laws shall become inoperative.
iii. It is not necessary that there is an actual war or armed rebellion. It is enough that the
President is satisfied that there is an imminent danger of such war or armed rebellion as the
case may be.
iv. The proclamation of emergency shall not be issued except when the decision of the Union
Cabinet that such proclamation may be issued, has been communicated to the President in
writing. Every such proclamation shall be laid before each House of Parliament and unless it
is approved by both the Houses by a majority of not less than two-thirds of the members
present and voting within a period of 30 days thereof, such proclamation shall cease to operate.
v. If any such proclamation is issued at a time when the House of People (Lok Sabha) has been
dissolved, or the dissolution of the House of People takes place during the period of one month
referred to above but before passing the resolution, and if a resolution approving the
proclamation has been passed by the Council of State (Rajya Sabha), the proclamation shall
cease to operate at the expiry of thirty days from the date on which the House of the People
(Lok Sabha) first sits after it’s reconstitution, unless before the expiration of the said period
of thirty days a resolution approving the proclamation has also been passed by the House of
the People.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.33
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

vi. A proclamation so approved shall, unless revoked, cease to operate on the expiration of a period
of six months from the date of passing of the second resolution approving the proclamation.
But this period of six months may be extended by a further period of six months, if, within
the first six months, both the Houses of Parliament pass a resolution approving the continuance
in force of such proclamation.

C. Breakdown of Constitutional Machinery in a State (Article 356 and 357)

i. In case the Governor of a State reports to the President, or he is otherwise satisfied that the
Government of a State cannot be carried on according to the provisions of the Constitution,
then he (President) can make a proclamation to that effect.
ii. By that proclamation, he can assume to himself all or any of the functions of the Government
of the State and all or any of the powers vested in or exercisable by the Governor or any body
or authority in the State, and declare that the powers of Legislature of that State shall vest
in Parliament.
iii. Parliament can make laws with respect to all State matters as regards the particular State in
which there is a breakdown of constitutional machinery and is under the President’s rule.
iv. Further it is not necessary that the legislature of the concerned State should be suspended or
dissolved before it is brought under the President’s rule, but practically it so happens.
v. It is important to note that the President cannot, however, assume to himself any of the
powers vested in or exercisable by a High Court or to suspend, either in whole or in part, the
operation of any provision of the Constitution relating to the High Courts.
vi. The report(s) of the Governor – is a precondition. The satisfaction must be formed on relevant
materials.
vii. The action of the President under Article 356 is a constitutional function and the same is
subject to judicial review. The Supreme Court or High Court can strike down the proclamation
if it is found to be mala fide or based on wholly irrelevant or extraneous grounds.
viii. If the Court strikes down the proclamation, it has the power to restore the dismissed
government to office and revive and reactivate the Legislative Assembly wherever it may have
been dissolved or kept under suspension.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.34
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

D. On the request of two or more states (Article 252)

i. Article 252 of the Constitution enumerates the power of Parliament to legislate for state. The
exercise of such power is conditional upon an agreement between two or more States requesting
Parliament to legislate for them on a specified subject.
ii. This Article provides that, if two or more States are desirous that on any particular item
included in the State List there should be a common legislation applicable to all such State
then they can make a request to Parliament to make such law on that particular subject. Such
request shall be made by passing a resolution in the legislatures of the State concerned. If
request is made in that form, then parliament can make law on that subject as regards those
States.
iii. The law so made may be adopted by other States also, by passing resolutions in their
legislatures. Once, however, such law has been made, the power of those State legislatures
which originally requested or which later on adopted such law is curtailed as regards that
matter and only Parliament can amend, modify or repeal such a law on similar request being
made by any State or States.
iv. If any of the consenting States makes a law on that subject then its law will be invalid to
the extent to which it is inconsistent with a law of Parliament. To take an example, Parliament
passed the Prize Competitions Act, 1955 under the provisions of the Constitution.

E. Legislation for enforcing international agreements (Article 253)

Parliament has exclusive power with respect to foreign affairs and entering into treaties and
agreements with foreign countries and implementing of treaties and agreements and
conventions with foreign countries. But a treaty or agreement concluded with another country
may require national implementation and for that purpose a law may be needed. To meet such
difficulties, the Constitution authorises Parliament to make law on any subject included in any
list to implement:
i. any treaty, agreement or convention with any other country or countries, or
ii. any decision made at any international conference, association or other body.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.35
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

INTERPRETATION OF THE LEGISLATIVE LISTS

A. 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, without, rendering another item nugatory.
Thus, a legislature to which a power is granted over a particular subject may make law on any
aspect or on all aspects of it, it can make a retrospective law or a prospective law and it can
also make law on all matters ancillary to that matter.
For example, if power to collect taxes is granted to a legislature, the power not to collect taxes
or the power to remit taxes shall be presumed to be included within the power to collect taxes.

B. 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. It must be
accepted that the Constitution does not want to create conflict and make any entry nugatory.
Therefore, when there appears a conflict between two entries in the two different lists the
two entries should be so interpreted, that each of them is given effect and, for that purpose
the scope and meaning of one may be restricted so as to give meaning to the other also.

C. Pith and Substance Rule:

i. 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.
ii. In a federal Constitution, “it must inevitably happen from time to time that legislation though
purporting to deal with a subject in one list touches also upon a subject in another list, and
the different provisions of the enactment may be so closely intertwined that blind adherence
to a strictly verbal interpretation would result in a large number of statutes being declared
invalid because the legislature enacting them may appear to have legislated in a forbidden
sphere”
iii. Therefore, where such overlapping occurs, the question must be asked, what is, “pith and
substance” of the enactment in question and in which list its true nature and character is to

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.36
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

be found. For this purpose, the enactment as a whole with its object and effect must be
considered.
iv. By way of illustration, acting on entry 6 of List II which reads “Public Health and Sanitation”.
Rajasthan Legislature passed a law restricting the use of sound amplifiers. The law was
challenged on the ground that it dealt with a matter which fell in entry 31 of List I which
reads: “Post and telegraphs, telephones, wireless broadcasting and other like forms of
communication”, and, therefore, the State Legislature was not competent to pass it.
v. The Supreme Court rejected this argument on the ground that the object of the law was to
prohibit unnecessary noise affecting the health of public and not to make a law on broadcasting,
etc. Therefore, the pith and substance of the law was “public health” and not “broadcasting”

D. Colourable Legislation:
i. A legislature may pass a law in such a way that it gives it a colour of constitutionality while,
in reality, that law aims at achieving something which the legislature could not do. Such
legislation is called colourable piece of legislation and is invalid.
ii. In Kameshwar Singh v. State of Bihar, the Bihar Land Reforms Act, 1950 provided that the
unpaid rents by the tenants shall vest in the state and one half of them shall be paid back
by the State to the landlord or zamindar as compensation for acquisition of unpaid rents.
iii. According to the provision in the State List under which the above law was passed, no property
should be acquired without payment of compensation. The question was whether the taking of
the whole unpaid rents and then returning half of them back to them who were entitled to
claim, (i.e., the landlords) is a law which provides for compensation.
iv. The Supreme Court found that this was a colourable exercise of power of acquisition by the
State legislature, because “the taking of the whole and returning a half means nothing more
or less than taking off without any return and this is naked confiscation, no matter in whatever
specious form it may be clothed or disguised”.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.37
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

FREEDOM OF TRADE, COMMERCE AND INTERCOURSE

1. The concept of trade, commerce and intercourse today is so wide that from ordinary sale and
purchase it includes broadcasting on radios, communication on telephone and even to non-
commercial movement from one place to another place.
2. If such is the scope of trade and commerce then any law relating to any matter may affect
the freedom of trade, commerce and intercourse, e.g., it may be said that the law which
imposes the condition of licence for having a radio violates the freedom of trade and commerce,
or a law which regulates the hours during which the electricity in a particular locality shall be
available may be called as affecting the freedom of trade and commerce because during those
hours one cannot use the radio or television or one cannot run this factory.
3. If that view is taken then every law shall become contrary to Articles 301 and unless saved by
Articles 302 to 307 shall be unconstitutional.
4. To avoid such situations the Supreme Court in the very first case on the matter declared that
only those laws which “directly and immediately” restrict or impede the freedom of trade and
commerce are covered by Article 301 and such laws which directly and incidentally affect the
freedom guaranteed in that article are not within the reach of Article 301.
5. Trade and commerce which are protected by Article 301 are only those activities which are
regarded as lawful trading activities and are not against policy. The Supreme Court held that
gambling is not “trade”.
6. Similarly, prize competitions being of gambling in nature, cannot be regarded as trade or
commerce and as such are not protected under Article 301.
7. The freedom guaranteed by Article 301 is not made absolute and is to be read subject to the
following exceptions as provided in Articles 302-305.

CONSTITUTIONAL PROVISIONS RELATING TO STATE MONOPOLY

After the Constitution (Amendment) Act, 1951, the State can create monopoly in favour of
itself, without being called upon to justify its action in the Court as being reasonable.
If a law is passed creating a State monopoly the Court should enquire as to what are the
provisions of the said law which are basically and essentially necessary for creating the state
monopoly.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.38
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

THE JUDICIARY
The Courts in the Indian legal system, broadly speaking, consist of:
1. The Supreme Court,
2. The High Courts, and
3. The subordinate courts.

THE SUPREME COURT

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.
Immediately before independence, the Privy Council was the highest appellate authority for
British India, for matters arising under ordinary law. But appeals from High Courts in
constitutional matters lay to the Federal Court (created under the Government of India Act,
1935) and thence to the Privy Council. The Supreme Court of India, in this sense, has inherited
the jurisdiction of both the Privy Council and the Federal Court. However, the jurisdiction of
the Supreme Court under the present Constitution is much more extensive than that of its
two predecessors mentioned above.

HIGH COURTS
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. The High Courts in (British) India were established first
under the Indian High Courts Act, 1861 (an Act of the U.K. Parliament). The remaining High
Courts were established or continued under the Constitution or under special Acts.

SUBORDINATE COURTS
Finally, there are various subordinate civil and criminal courts (original and appellate),
functioning under ordinary law. Although their meaning 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. Civil Courts are created mostly
under the Civil Courts Act of each State. Criminal courts are created mainly under the Code
of Criminal Procedure. These are in the form of Civil Courts, Criminal Courts, Special Tribunals.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.39
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

WRIT JURISDICTION OF HIGH COURTS AND SUPREME COURT

1. In the words of Dicey, prerogative writs are ‘the bulwark of English Liberty’. The expression
‘prerogative writ’ is one of English common law which refers to the extraordinary writs granted
by the sovereign, as fountain of justice on the ground of inadequacy of ordinary legal remedies.
2. In course of time these writs were issued by the High Court as extraordinary remedies in cases
where there was either no remedy available under the ordinary law or the remedy available was
inadequate.
3. Under the Constitution by virtue of Article 226, every High Court has the power to issue
directions or orders or writs including writs.
4. The Supreme Court could be moved by appropriate proceedings for the issue of directions or
orders or writs, as referred to under Article 226 for the enforcement of the rights guaranteed
by Part III of the Constitution.
5. Article 32 itself being a fundamental right, the Constitutional remedy of writ is available to
anyone whose fundamental rights are infringed by state action. Thus, we see the power of the
High Courts to issue these writs is wider than that of the Supreme Court.

TYPES OF WRITS

Habeas Quo
Mandamus Certiorari Prohibition
corpus Warranto

1. Habeas Corpus
i. The writ of Habeas corpus – is a remedy available to a person who is confined without legal
justification.
ii. The words ‘Habeas Corpus’ literally mean “to have the body”. When a prima facie case for the
issue of writ has been made then the Court issues a rule nisi upon the relevant authority to

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.40
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

show-cause why the writ should not be issued.

iii. This is in national order to let the Court know on what grounds he has been confined and to
set him free if there is no justification for his detention. This writ has to be obeyed by the
detaining authority by producing the person before the Court.
iv. Under Articles 32 and 226 any person can move for this writ to the Supreme Court and High
Court respectively.
v. The applicant may be the prisoner or any person acting on his behalf to safeguard his liberty
for the issuance of the writ of Habeas Corpus as no man can be punished or deprived of his
personal liberty except for violation of law.

2. Mandamus
i. The word ‘Mandamus’ literally means ‘we command’.
ii. The writ of mandamus is, a command issued to direct any person, corporation, inferior court,
or Government requiring him or it do a particular thing specified therein which pertains to his
or its office and is further in the nature of a public duty.
iii. This writ is used when the inferior tribunal has declined to exercise jurisdiction while resort to
certiorari and prohibition arises when the tribunal has wrongly exercised jurisdiction or exceeded
its jurisdiction and are available only against judicial and quasi-judicial bodies.
iv. Mandamus can be issued against any public authority. It commands activity. The writ is used
for securing judicial enforcement of public duties.
v. Mandamus does not lie against the President or the Governor of a State for the exercise of
their duties and power. It does not lie also against a private individual or body except where
the state is in collusion with such private party.
vi. It is a discretionary remedy and the High Court may refuse if alternative remedy exists except
in case of infringement of fundamental rights.

3. Prohibition
i. A writ of prohibition is issued to an Inferior Court preventing the latter from usurping
jurisdiction which is not legally vested in it.
ii. When a tribunal acts without or in excess of jurisdiction, or in violation of rules or law, a writ
of prohibition can be asked for. It is generally issued before the trial of the case.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.41
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

iii. While mandamus commands activity, prohibition commands inactivity, it is available only
against judicial or quasi-judicial authorities and is not available against a public officer who is
not vested with judicial functions.
iv. If abuse of power is apparent this writ may be of right and not a matter of discretion.

4. Certiorari.
i. It is available to any person, wherever any body of persons having legal authority to determine
questions affecting the rights of subjects and having the duty to act judicially in excess of
their legal authority.
ii. The writ removes the proceedings from such body to the High Court, to quash a decision that
goes beyond its jurisdiction. Under the Constitution of India, all High Courts can issue the writ
of certiorari throughout their territorial jurisdiction when the subordinate judicial authority acts
a) without or in excess of jurisdiction or in
b) contravention of the rules of natural justice or
c) commits an error apparent on the face of the record.
iii. The jurisdiction of the Supreme Court to issue such writs arises under Article 32.
iv. Although the object of both the writs of prohibition and of certiorari is the same, prohibition
is available at an earlier stage whereas certiorari is available at a later stage but in similar
grounds, i.e., Certiorari is issued after authority has exercised its powers.

5. Quo Warranto
The writ of quo warranto enables enquiry into the legality of the claim which a person asserts,
to an office or franchise and to oust him from such position if he is a usurper. The holder of
the office has to show to the court under what authority he holds the office.
It is issued when:
i. the office is of public and of a substantive nature,
ii. created by statute or by the Constitution itself, and
iii. the respondent has asserted his claim to the office.
It can be issued even though he has not assumed the charge of the office. The fundamental
basis of the proceeding of Quo warranto is that the public has an interest to see that an

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.42
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

unlawful claimant does not usurp a public office. It is a discretionary remedy which the court
may grant or refuse.

DELEGATED LEGISLATION
The increasing complexity have made it necessary for the legislatures to delegate its powers.
Further, the Parliamentary procedure and discussions in getting through a legislative measure
in the Legislatures is usually time consuming.
The three relevant justifications for delegated legislation are:
i. the limits of the time of the legislature;
ii. 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
iii. the need of some weapon for coping with situations created by emergency.

CLASSIFICATION OF SUBORDINATE LEGISLATION

1. Executive Legislation
This system empowers the executive to make rules and orders which do not require express
confirmation by the legislature. Thus, the rules framed by the Government under the various
Municipal Acts fall under the category.

2. Judicial Legislation
Under various statues, the High Courts are authorised to frame rules for regulating the procedure
to be followed in courts. Such rules have been framed by the High Courts under the Guardians
of Wards Act, Insolvency Act, Succession Act and Companies Act, etc.

3. Municipal Legislation
Municipal authorities are entrusted with limited and sub-ordinate powers of establishing special
laws applicable to the whole or any part of the area under their administration known as bye-
laws.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.43
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

4. Autonomous Legislation
Under this head fall the regulations which autonomous bodies such as Universities make in
respect of matters which concern themselves.

5. Colonial Legislation
The laws made by colonies under the control of some other nation, which are subject to
supreme legislation of the country under whose control they are.

While delegating the powers to an outside authority the legislature must act within the ambit
of the powers defined by the Constitution, a number of principles in various judicial decisions
have been laid down which are as follows:
i. The primary duty of law-making has to be discharged by the Legislature itself.
ii. The essential legislative function consists in laying down the ‘the policy of the law’ and ‘making
it a binding rule of conduct’.
iii. If the legislature has performed its essential function of laying down the policy of the law and
providing guidance for carrying out the policy, there is no constitutional bar against delegation
of subsidiary or ancillary powers in that behalf to an outside authority.
iv. an Act delegating law-making powers to a person or body shall be invalid, if it lays down no
principles and provides no standard for the guidance of the rule-making body.
v. In every case, it would be necessary to consider the relevant provisions of the Act in relation
to the delegation made and the question as to whether the delegation made is intra vires or
not will have to be decided by the application of the relevant tests.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.44
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

LEGISLATIVE FUNCTIONS

BILL

Finance Bill
Ordinary Bill
Money Bill
(Category -1 may be
(It may be introduced in
(It may be introduced in introduced only in lok sabha
either house of
Lok sabha only) and Category -II may be
parliament)
introduced in any house)

Amendment to the
Constitution Bill Ordinance a replacing bill
(Article 368) (It may be introduced in either
(It may be introduced in house of parliament)
either house of parliament)

Types of Bills and their Specific Features

1. Bills may be broadly classified into Government Bills and Private Members’ Bills depending
upon their initiation in the House by a Minister or a Private Member.

2. Content wise, Bills are further classified into:

i. Original Bills which embody new proposals, ideas or policies,
ii. Amending Bills which seek to modify, amend or revise existing Acts,
iii. Consolidating Bills which seek to consolidate existing law/enactments on a particular subject,
iv. Expiring Laws (Continuance) Bills which seek to continue Acts which, otherwise, would expire
on a specified date,
v. Repealing and amending Bill to cleanse the Statute Book,
vi. Validating Acts to give validity to certain actions,
vii. Bills to replace Ordinances,
viii. Money and Financial Bills, and
ix. Constitution Amendment Bills.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.45
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

3. However, procedurally, the Bills are classified as

i. Ordinary Bills
ii. Money Bills and Financial Bills
iii. Ordinance Replacing Bills and
iv. Constitution Amendment Bills.

4. Financial Bills can be further classified as Financial Bills Categories A and B. Category A Bills
contain provisions dealing with any of the matters specified in sub-clauses (a) to (f) of clause
(1) of article 110 and other matters and Category B Bills involve expenditure from the
Consolidated Fund of India.

5. Financial Bill Category A can only be introduced in the Lok Sabha on the recommendation of
the President. However, once it has been passed by the Lok Sabha, it is like an ordinary Bill
and there is no restriction on the powers of the Rajya Sabha on such Bills.

6. Financial Bill Category B and Ordinary Bills can be introduced in either House of Parliament.

7. Ordinance replacing Bills are brought before Parliament to replace an Ordinance, with or without
modifications, promulgated by the President under article 123 of the Constitution of a subject.
To provide continuity to the provisions of the Ordinance, such a Bill has to be passed by the
Houses of Parliament and assented to by the President within six weeks of the reassembly of
Parliament.

8. Under provisions of Article 108 of the Constitution, if after a Bill passed by one House and
transmitted to the other House: -
i. is rejected by the other House; or
ii. the Houses have finally disagreed as to the amendments to be made in the Bill; or
iii. more than six months elapse from the date of its receipt by the other House without the Bill
being passed by it, the President may, unless the Bill has elapsed by reason of a dissolution
of the Lok Sabha, summon them to meet in a joint sitting for the purpose of deliberating and
voting on the Bill. If at the joint sitting of the two Houses, the Bill, with such amendments,

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.46
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

if any, as are agreed to in joint sitting, is passed by a majority of the total number of members
of both Houses present and voting, it shall be deemed to have been passed by both Houses.
However, there is no provision of joint sittings on a Money Bill or a Constitution Amending
Bill.

LAW MAKING PROCESS (HOW A BILL BECOMES AN ACT)

A Bill is the draft of a legislative proposal which has to pass through various stages before it
becomes an Act of Parliament.

1. First Reading
The legislative process starts with the introduction of a Bill in either House of Parliament –
Lok Sabha or Rajya Sabha. A Bill can be introduced either by a Minister or by a Private
Member. In the former case, it is known as a Government Bill and in the latter case it is
called a Private Member’s Bill.
It is necessary for a member-in-charge of the Bill to ask for leave to introduce the Bill. If
leave is granted by the House, the Bill is introduced. This stage is known as the First Reading
of the Bill. If the motion for leave to introduce a Bill is opposed, the Speaker may, allow a
brief explanatory statement to be made by the Member who opposes the motion and the
Member-in-charge who moved the motion.
Thereafter, the question is put to the vote of the House.

2. Reference of Bill to Standing Committee

After a Bill has been introduced, the presiding Officer of the house concerned can refer the
Bill to the Standing Committee concerned for examination and make report thereon.
If a Bill is referred to the Standing Committee, the Committee shall consider the general
principles and clauses of the Bill referred to them and make report thereon. After the Bill has
thus been considered, the Committee submits its report to the House. The report of the
Committee, being of persuasive value, shall be treated as considered advice given by the
Committee.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.47
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

3. Second Reading
The Second Reading consists of consideration of the Bill which is in two stages:
First Stage: The first stage consists of general discussion on the Bill as a whole when the
principle underlying the Bill is discussed.
Second Stage: The second stage of the Second Reading consists of clause-by-clause
consideration of the Bill.

4. Third Reading
Thereafter, the Member-in-charge can move that the Bill be passed. This stage is known as
the Third Reading of the Bill. At this stage, the debate is confined to arguments either in
support or rejection of the Bill. In passing an ordinary Bill, a simple majority of Members
present and voting is necessary. But in the case of a Bill to amend the Constitution, a majority
of the total membership of the House and a majority of not less than two-thirds of the
Members present and voting is required in each House of Parliament.

5. Bill in the other House

After the Bill is passed by one House, it is sent to the other House for concurrence with a
message to that effect, and there also it goes through the stages described above, except the
introduction stage.

6. Consideration of the Bill at a Joint Sitting

If a Bill passed by one House is rejected by the other House, or, the Houses have finally
disagreed as to the amendments to be made in the Bill, or more than six months elapse from
the date of the receipt of the Bill by the other House without the Bill being passed by it, the
President may call a joint sitting of the two Houses to resolve the deadlock. If, at the joint
sitting of the Houses, the Bill is passed by a majority of the total number of Members of both
the Houses present and voting, with the amendments, if any, accepted by them, the Bill is
deemed to have been passed by both the Hoses.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.48
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

7. Assent of the President

When a Bill is passed by both Houses, the Secretariat of the House which is last in possession
of the Bill obtains the assent of the President. The Bill becomes an Act only after the President
has given assent to it.

PARLIAMENTARY COMMITTEES
1. Parliamentary Committees play a vital role in the Parliamentary System. They are a vibrant
link between the Parliament, the Executive and the general public.
2. The need for Committees arises out of two factors, the first one being the need for vigilance
on the part of the Legislature over the actions of the Executive, while the second one is that
the modern Legislature these days is over-burdened with heavy volume of work with limited
time at its disposal.
3. It thus becomes impossible that every matter should be thoroughly and systematically
scrutinized and considered on the floor of the House.
4. If the work is to be done with reasonable care, naturally some Parliamentary responsibility has
to be entrusted to an agency in which the whole House has confidence.
5. Entrusting certain functions of the House to the Committees has, therefore, become a normal
practice. The Committees aid and assist the Legislature in discharging its duties and regulating
its functions effectively, expeditiously and efficiently. Through Committees, Parliament exercises
its control and influence over administration.

AD HOC AND STANDING COMMITTEES

Parliamentary Committees are of two kinds: Ad hoc Committees and the Standing Committees.
Ad hoc Committees are appointed for a specific purpose and they cease to exist when they
finish the task assigned to them and submit a report. The principal Ad hoc Committees are
the Select and Joint Committees on Bills. Others like the Railway Convention Committee, the
Committees on the Draft Five Year Plans and the Hindi Equivalents Committee were appointed
for specific purposes. Apart from the Ad hoc Committees, each House of Parliament has
Standing Committees like the Business Advisory Committee, the Committee on Petitions, the
Committee of Privileges and the Rules Committee, etc.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.49
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

I. OTHER COMMITTEES
Other Committees of special importance is yet another class of Committees which act as
Parliament’s ‘Watch Dogs’ over the executive. These are the Committees on Subordinate
Legislation, the Committee on Government Assurances, the Committee on Estimates, the
Committee on Public Accounts and the Committee on Public Undertakings and Departmentally
Related Standing Committees (DRSCs). The Committee on Estimates, the Committee on Public
Accounts, the Committee on Public Undertakings and DRSCs play an important role in
exercising a check over governmental expenditure and Policy formulation.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.50
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

LIFE IS LIKE A MCQ, SOMETIMES IT’S THE CHOICE THAT CONFUSES YOU, NOT THE
QUESTION ITSELF. LET’S CRACK IT!

Important
Points

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.51
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 2.52
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

CHAPTER 3 - INTERPRETATION OF STATUTES

INTRODUCTION
A statute has been defined as “the will of the legislature”
A statute is thus a written “will” of the legislature expressed according to the form necessary
to constitute it as a law of the State, and rendered authentic by certain prescribed forms and
solemnities.
The Constitution of India does not use the term ‘statute’ but it employs the term “law” to
describe an exercise of legislative power.

Statutes are commonly divided into following classes

1. Codifying, when they codify the unwritten law on a subject;
2. Declaratory, when they do not profess to make any alteration in the existing law, but merely
declare or explain what it is;
3. Remedial, when they alter the common law, or the judge made (non-statutory) law;
4. Amending, when they alter the statute law;
5. Consolidating, when they consolidate several previous statutes relating to the same subject
matter, with or without alterations of substance;
6. Enabling, when they remove a restriction or disability;
7. Disabling, when they restrain the alienation of property;
8. Penal, when they impose a penalty or forfeiture.

NEED FOR INTERPRETATION OF STATUTE

1. When a defect appears, a judge cannot simply fold his hands and blame the draftsman. He
must set to work on the constructive task of finding the intention of Parliament, and he must
do this, not only from the language of the statute, but also from a consideration of the social
conditions which gave rise to it, and of the mischief which it was passed to remedy, and then
he must supplement the written word so as to give ‘force and life’ to the intention of the
legislature.
2. To put into other words: A judge should ask himself the question: If the makers of the Act
had themselves come across this luck in the texture of it, how would they have straight ended

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.1
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

it out? He must then do as they would have done. A judge must not alter the material of
which it is woven, but he can and should iron out the creases.
3. “The object of all interpretation of a ‘Written Document’ is to discover the intention of the
author, the written declaration of whose mind the document is always considered to be.
4. Consequently, the construction must be as near to the minds and apparent intention of the
parties as possible, and as the law will permit. The function of the court is to ascertain what
the parties meant by the words which they have used; to declare the meaning of what is
written in the instrument, and not of what was intended to have been written; to give effect
to the intention as expressed, the expressed meaning being, for the purpose of interpretation,
equivalent of the intention.
5. The object of interpretation, thus, in all cases is to see what is the intention expressed by the
words used. The words of the statute are to be interpreted so as to ascertain the mind of the
legislature from the natural and grammatical meaning of the words which it has used.
6. The object of interpretation is to see what is intended by the words used by the lawmaker.
But sometimes it is very difficult to understand the meaning without making further inquiry.
7. Therefore, it becomes necessary to find out the correct meaning by applying various rules of
interpretation. However, there is no hierarchy of one rule over the other. The interpreter has to
analyse which rule has to apply after giving due consideration to the facts of the situation and
intent of the statute.

CASUS OMISSUS RULE

There are two basic rules of interpretation:

1. Every word in a statute to be given meaning.
2. The court cannot read anything into a statute or rewrite a provision which is unambiguous.

It is corollary to the general rule of literal construction that nothing is to be added to or taken
out from a statute unless there are adequate grounds to justify the inference the legislature
intended something which it omitted to express. When the language is clear and unambiguous
then there is no need to apply the tools of interpretation

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.2
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

However, the judge may read in or read out words which he considers to be necessarily implied
or surplus by words which are already in the statute; and the judge has a limited power to add
to, alter or ignore statutory words in order to prevent a provision from being unintelligible,
absurd or totally unreasonable with the rest of the statute.

Primary Rules
1. The Primary Rule: Literal Construction
2. The Mischief Rule or Heydon’s Rule
3. Rule of Reasonable Construction i.e., Ut Res Magis Valeat Quam Pareat
4. Rule of Harmonious Construction
5. Rule of Ejusdem Generis

Other Rules of Interpretation

1. Expressio Unis Est Exclusio Alterius
2. Contemporanea Expositio Est Optima Et Fortissima in Lege
3. Noscitur a Sociis
4. Strict and Liberal Construction

1. PRIMARY RULES
The Primary Rule: Literal Construction
i. According to this rule, the words, phrases and sentences of a statute are ordinarily to be
understood in their natural, ordinary or popular and grammatical meaning unless such a
construction leads to an absurdity.
ii. Interpretation should not be given which would make other provisions unnecessary.
iii. “The safer and more correct course of dealing with a question of construction is to take the
words themselves and arrive, if possible, at their plain meaning without, in the first instance,
reference to cases.”
iv. It is a corollary to the general rule of literal construction that nothing is to be added to or
taken from a statute unless there are adequate grounds to justify the inference that the
legislature intended something which it omitted to express.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.3
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

v. Similarly, the main part of the section must not be construed in such a way as to render a
proviso to the section redundant. Some of the other basic principles of literal construction are:
a. Every word in the law should be given meaning as no word is unnecessarily used.
b. One should not presume any omissions and if a word is not there in the Statute, it shall not
be given any meaning.
vi. Supreme Court in State of H.P v. Pawan Kumar held:
a. One of the basic principles of interpretation of statutes is to construe them according to plain,
literal and grammatical meaning of the words.
b. If that is contrary to, or inconsistent with, any express intention or declared purpose of the
Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical
sense must then be modified, so far as to avoid such an inconvenience, but no further.
c. The onus of showing that the words do not mean what they say lies heavily on the party who
alleges it.

1. The Mischief Rule or Heydon’s Rule

In Heydon’s Case, it was resolved that four things are to be considered:
i. What was the Common Law before the making of the Act;
ii. What was the mischief and defect for which the Common Law did not provide;
iii. What remedy the Parliament had resolved and appointed to cure the disease of the
Commonwealth; and
iv. The true reason of the remedy.
when the material words are capable of bearing two or more constructions, the most firmly
established rule for construction of such words is the rule laid down in Heydon’s case which
has “now attained the status of a classic”. The rule directs that the Courts must adopt that
construction which “shall suppress the mischief and advance the remedy”. But this does not
mean that a construction should be adopted which ignores the plain natural meaning of
the words or disregard the context and the collection in which they occur.
The Supreme Court in Sodra Devi’s case has expressed the view that the rule in Heydon’s case
is applicable only when the words in question are ambiguous and are reasonably
capable of more than one meaning.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.4
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

2. Rule of Reasonable Construction, i.e., Ut Res Magis Valeat Quam Pereat

i. Normally, the words used in a statute have to be construed in their ordinary meaning, but in
many cases, judicial approach finds that the simple device of adopting the ordinary meaning
of words, does not meet the ends as a fair and a reasonable construction.
ii. Exclusive reliance on the bare dictionary meaning of words may not necessarily assist a proper
construction of the statutory provision in which the words occur.
iii. Often enough interpreting the provision, it becomes necessary to have regard to the subject
matter of the law and the object which it is intended to achieve.
iv. According to this rule, the words of a statute must be construed ut res magis valeat quam
pereat, so as to give a sensible meaning to them.
v. A provision of law cannot be so interpreted as to divorce it entirely from common sense; every
word or expression used in an Act should receive a natural and fair meaning.
vi. It is the duty of a Court in constructing a statute to give effect to the intention of the
legislature. If, therefore, giving of literal meaning to a word used by the draftsman particularly
in penal statute would defeat the object of the legislature, which is to suppress a mischief,
the Court can depart from the dictionary meaning which will advance the remedy and suppress
the mischief.
vii. In RBI v. Peerless General Finance and Investment Co. Ltd. The Supreme Court stated that if
a law is looked at in the context of its enactment, with the glasses of the law makers, then
the words may appear different than when the statute is looked at without the glasses provided
by the context.
viii. With these glasses we must look at the Act as a whole and discover what each section, each
clause each phrase and each word is meant and designed to say as to fit into the scheme of
the entire Act.

3. Rule of Harmonious Construction

i. A statute must be read as a whole and one provision of the Act should be construed with
reference to other provisions in the same Act so as to make a consistent enactment of the
whole statute.
ii. Such a construction has the merit of avoiding any inconsistency or repugnancy either within
a section or between a section and other parts of the statute.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.5
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

iii. It is the duty of the Courts to avoid “a head on clash” between two sections of the same Act
and, “whenever it is possible to do so, to construct provisions which appear to conflict so that
they harmonise” Where in an enactment, there are two provisions which cannot be reconciled
with each other, they should be so interpreted that, if possible, effect may be given to both.
This is what is known as the “rule of harmonious construction”.
iv. In M/s New India Sugar Mills Ltd. vs. Commissioner of Sales Tax, Bihar It was observed by
Supreme Court that It is a recognised rule of interpretation of statutes that the expressions
used therein should ordinarily be understood in a sense in which they best harmonise with the
object of the statute, and which effectuate the object of the Legislature.

4. Rule of Ejusdem Generis

Ejusdem Generis, literally means “of the same kind or species”. The rule can be stated thus:
i. In an enumeration of different subjects in an Act, general words following specific words may
be construed with reference to the specific matters, and the construction may be narrowed
down by treating them as applying to things of the same kind as those previously mentioned.
ii. If the particular words exhaust the whole genus, then the general words are construed as
embracing a larger genus.
In other words, the ejusdem generis rule is that, where there are general words following
particular and specific words, the general words must be confined to things of the same kind
as those specified, unless there is a clear intention of a contrary purpose.
It is merely a rule of construction to aid the Courts to find out the true intention of the
Legislature.
To apply the rule the following conditions must exist:
a. The statute contains an enumeration by specific words,
b. The members of the enumeration constitute a class,
c. The class is not exhausted,
d. A general term follows the enumeration,
e. There is a distinct genus which comprises more than one species.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.6
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

OTHER RULES OF INTERPRETATION

1. Expressio Unis Est Exclusio Alterius
i. The rule means that express mention of one thing implies the exclusion of another.
ii. At the same time, general words in a statute must receive a general construction, unless there
is in the statute some ground for limiting and restraining their meaning by reasonable
construction, because many things are put into a statute ex abundanti cautela (with utmost
caution), and it is not to be assumed that anything not specifically included is for that reason
alone excluded from the protection of the statute.
iii. The method of construction according to this maxim must be carefully watched. The failure to
make the ‘expression’ complete may arise from accident.
iv. Similarly, the ‘exclusion’ is often the result of inadvertence or accident because it never struck
the draftsman that the thing supposed to be excluded requires specific mention.
v. The maxim ought not to be applied when its application leads to inconsistency or injustice.
Similarly, it cannot be applied when the language of the Statute is plain with clear meaning.

2. Contemporanea Expositio Est Optima Et Fortissima in Lege

i. The maxim means that a contemporaneous exposition is the best and strongest in law.
ii. Where the words used in a statute have undergone alteration in meaning in course of time,
the words will be construed to bear the same meaning as they had when the statute was
passed on the principle expressed in the maxim.
iii. In simple words, old statutes should be interpreted as they would have been at the date when
they were passed and prior usage and interpretation by those who have an interest or duty in
enforcing the Act, and the legal profession of the time, are presumptive evidence of their
meaning when the meaning is doubtful.
iv. But if the statute appears to be capable of only interpretation, the fact that a wrong meaning
had been attached to it for many years, will be immaterial and the correct meaning will be
given by the Courts except when title to property may be affected or when every day
transactions have been entered into on such wrong interpretation.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.7
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

3. Noscitur a Sociis
‘Noscitur a Sociis’, i.e., “It is known by its associates”.
In other words, meaning of a word should be known from its accompanying or associating
words. It is not a sound principle in interpretation of statutes, to lay emphasis on one word
disjuncted from its preceding and succeeding words. A word in a statutory provision is to be
read in collocation with its companion words.
The same words bear the same meaning in the same statute. But this rule will not apply:
i. When the context excluded that principle.
ii. If sufficient reason can be assigned, it is proper to construe a word in one part of an Act in
a different sense from that which it bears in another part of the Act.
iii. Where it would cause injustice or absurdity.
iv. Where different circumstances are being dealt with.
v. Where the words are used in a different context.

4. Strict and Liberal Construction

i. It is said that what is meant by ‘strict construction’ is that “Acts, are not to be regarded as
including anything which is not within their letter as well as their spirit, which is not clearly
and intelligibly described in the very words of the statute, as well as manifestly intended”,
ii. While ‘liberal construction’ is meant that “everything is to be done in advancement of the
remedy that can be done consistently with any construction of the statute”. Beneficial
construction to suppress the mischief and advance the remedy is generally preferred.
iii. A Court invokes the rule which produces a result that satisfies its sense of justice in the case
before it.
iv. “Although the literal rule is the one most frequently referred to in express terms, the Courts
treat all three (viz., the literal rule, the golden rule and the mischief rule) as valid and refer
to them as occasion demands, but do not assign any reasons for choosing one rather than
another.
v. Sometimes a Court discusses all the three approaches. Sometimes it expressly rejects the
‘mischief rule’ in favour of the ‘literal rule’. Sometimes it prefers, although never expressly, the
‘mischief rule’ to the ‘literal rule’.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.8
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

PRESUMPTIONS
Where the meaning of the statute is clear, there is no need for presumptions. But if the
intention of the legislature is not clear, there are number of presumptions. These are:
1. That the words in a statute are used precisely and not loosely.
2. That vested rights, i.e., rights which a person possessed at the time the statute was passed,
are not taken away without express words, or necessary implication or without compensation.
3. That “mens rea”, i.e., guilty mind is required for a criminal act.
4. That the state is not affected by a statute unless it is expressly mentioned as being so
affected.
5. That a statute is not intended to be inconsistent with the principles of International Law.
Although the judges cannot declare a statute void as being repugnant to International Law, yet
if two possible alternatives present themselves, the judges will choose that which is not at
variance with it.
6. That the legislature knows the state of the law.
7. That the legislature does not make any alteration in the existing law unless by express
enactment.
8. That the legislature knows the practice of the executive and the judiciary.
9. Legislature confers powers necessary to carry out duties imposed by it.
10. That the legislature does not make mistake.
11. The law compels no man to do that which is futile or fruitless.
12. The doctrine of natural justice is really a doctrine for the interpretation of statutes, under
which the Court will presume that the legislature while granting a drastic power must intend
that it should be fairly exercised.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.9
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

AIDS TO INTERPRETATION

Aids to Interpretation

Internal Aids in External Aids in

Interpretation Interpretation

- Title
- Preamble - Parliamentary History

- Heading and Titles of - Reference to Reports of

chapter committees
- Marginal Notes - Reference to other
- Interpretation Clauses Statutes
- Proviso - Dictionaries
- Illustrations or Explanation - Use of Foreign Decisions
-Schedules

A. Internal Aids in Interpretation

1. Title
The long title of an Act is a part of the Act and is admissible as an aid to its construction.
The long title sets out in general terms, the purpose of the Act and it often precedes the
preamble. The true nature of the law is determined not by the name given to it but by its
substance. However, the long title is a legitimate aid to the construction.

2. Preamble
i. “The preamble of a statute is not part thereof, but contains generally the motives or
inducement thereof”.
ii. On the other hand, it was said that “the preamble is to be considered, for it is the key to
open the meaning of the makers of the Act, and the mischief it was intended to remedy”.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.10
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

iii. The modern rule lies between these two extremes and is that where the enacting part is
explicit and unambiguous the preamble cannot be resorted to, control, but where the enacting
part is ambiguous, the preamble can be referred to explain and elucidate it.
iv. Supreme Court in Kamalpura Kochunni v. State of Madras, pointed out that the preamble may
be legitimately consulted in case any ambiguity arises in the construction of an Act and it
may be useful to fix the meaning of words used so as to keep the effect of the statute within
its real scope.

3. Heading and Title of a Chapter

i. “Headings or titles prefixed to sections or group of sections may be referred to as to
construction of doubtful expressions; but the title of a chapter cannot be used to restrict the
plain terms of an enactment”.
ii. The Supreme Court observed that, “Only in the case of ambiguity or doubt the heading or the
sub-heading may be referred to as an aid for construing the provision but even in such a case
aid could not be used for cutting down the wide application of the clear words used in the
provision”

4. Marginal Notes
i. The marginal notes to the sections are not to be referred to for the purpose of construction.
ii. The Supreme Court in Western India Theatres Ltd. v. Municipal Corporation of Poona, has also
held, that a marginal note cannot be invoked for construction where the meaning is clear.
iii. Marginal notes appended to the Articles of the Constitution have been held to constitute part
of the Constitution as passed by the Constituent Assembly and therefore, they have been
made use of in consulting the Articles, e.g., Article 286, as furnishing prima facie, “some clue
as to the meaning and purpose of the Article”.
iv. When reference to marginal note is relevant? The Supreme Court has held that the marginal
note although may not be relevant for rendition of decisions in all types of cases but where
the main provision is sought to be interpreted differently, reference to marginal note would be
permissible in law.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.11
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

5. Interpretation Clauses
A definition section may borrow definitions from an earlier Act and definitions so borrowed
need not be found in the definition section but in some provisions of the earlier Act.
When a word has been defined in the interpretation clause, prima facie that definition governs
whenever that word is used in the body of the statute. When a word is defined to bear a
number of meanings, the sense in which the word is used in a particular provision must be
ascertained from the context of the scheme of the Act, the language, the provision
and the object intended to be served thereby.

6. Proviso
In the words of Lord Macmillan: “The proper function of a proviso is to except and to deal
with a case which would otherwise fall within the general language of the main enactment,
and its effect is confined to the case”.
“As a general rule, a proviso is added to an enactment to qualify or create an exception to
what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule”.
A distinction is said to exist between the provisions worded as ‘proviso’, ‘exception’ or ‘saving
clause’. ‘Exception’ is intended to restrain the enacting clause to particular cases; ‘proviso’ is
used to remove special cases from the general enactment and provide for them specially; and
‘saving clause’ is used to preserve from destruction certain rights, remedies or privileges already
existing.

7. Illustrations or Explanation
“Illustrations attached to sections are part of the statute and they are useful so far as they
help to furnish same indication of the presumable intention of the legislature. An explanation
is at times appended to a section to explain the meaning of words contained in the section. It
becomes a part and parcel of the enactment. But illustrations cannot have the effect of
modifying the language of the section.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.12
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

8. Schedules
The schedules form a part of the statute and must be read together with it for all purposes
of construction. But expression in the schedule cannot control or prevail against the express
enactment, the Allahabad High Court has held that, if there is any appearance of inconsistency
between the schedule and the enactment, the enactment shall prevail. If the enacting part
and the schedule cannot be made to correspond, the latter must yield to the former.

B. EXTERNAL AIDS IN INTERPRETATION

1. Parliamentary History
On many occasions, the Court used this aid in resolving questions of construction. The Court
has now steered to the view that legislative history within circumspect limits may be consulted
by Courts in resolving ambiguities.
It has already been noticed that the Court is entitled to take into account “such external or
historical facts as may be necessary to understand the subject-matter of the statute”, or to
have regard to “the surrounding circumstances” which existed at the time of passing of the
statute.

2. Reference to Reports of Committees

The report of a Select Committee or other Committee on whose report an enactment is based,
can be looked into “so as to see the background against which the legislation was enacted,
the fact cannot be ignored that Parliament may, and often does, decide to do something
different to cure the mischief. So, we should not be unduly influenced by the Report
When Parliament has enacted a statute as recommended by the Report of a Committee and
there is ambiguity or uncertainty in any provision of the statute, the Court may have regard
to the report of the Committee for ascertaining the intention behind the provision but where
the words used are plain and clear, no intention other than what the words convey can be
imported in order to avoid anomalies.

3. Reference to other Statutes

i. It has already been stated that a statute must be read as a whole as words are to be
understood in their context.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.13
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

ii. Extension of this rule of context, permits reference to other statutes in pari materia, i.e.,
statutes dealing with the same subject matter or forming part of the same system.
iii. Viscount Simonds conceived it to be a right and duty to construe every word of a statute in
its context and he used the word in its widest sense including other statutes in pari materia.
iv. “Statutes are in pari materia which relate to the same person or thing, or to the same class
of persons or things. It is a phrase applicable to public statutes or general laws made at
different times and in reference to the same subject.
v. When the two pieces of legislation are of differing scopes, it cannot be said that they are in
pari materia.
vi. It is well accepted legislative practice to incorporate by reference, if the legislature so chooses,
the provisions of some other Act in so far as they are relevant for the purposes of and in
furtherance of the scheme and subjects of the Act.

4. Dictionaries
When a word is not defined in the Act itself, it is permissible to refer to dictionaries to find
out the general sense in which that word is understood in common parlance. However, in
selecting one out of the various meanings of the word, regard must always be had to the
context as it is a fundamental rule that “the meaning of words and expressions used in an
Act must take their colour from the context in which they appear”. Therefore, when the context
makes the meaning of a word quite clear, it becomes unnecessary to search for and select a
particular meaning out of the diverse meanings a word is capable of, according to
lexicographers”.

5. Use of Foreign Decisions

Use of foreign decisions of countries following the same system of jurisprudence as ours and
rendered on statutes in pari materia has been permitted by practice in Indian Courts. The
assistance of such decisions is subject to the qualification that prime importance is always to
be given to the language of the relevant Indian Statute, the circumstances and the setting in
which it is enacted and the Indian conditions where it is to be applied.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.14
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

READING A BARE ACT & CITATION OF CASES

Reading a Bare Act
Reading a bare act requires skills such as interpretational, comprehension, analytical and
command over the language in which the act has been written. The purpose of reading a bare
act is to understand the correct meaning of a provision.
Few important rules are as under:
i. A Bare Act should be read according to the context
ii. Definition clause of the Act & pari materia statutes and General Clauses Act may be referred
to
iii. Literal interpretation should be given initially
iv. Break the sentence but understand a provision as a whole
v. Read – understand – apply rule would be beneficial
vi. Read the updated version of the bare act

Citation of Cases
The decisions of Higher Court are having binding force on the subordinate courts. This results
to the need of citation of cases in the pleadings to made before the authorities and courts.
Citations are also used by the authors in referring the cases in the books and publications.
The examples of the law reports used are as under:
1. All India Reporter (AIR)
2. Supreme Court Cases (SCC)
3. Supreme Court Journal (SCJ)
4. Supreme Court Reports (SCR)
5. Delhi Law Times (DLT)

PROSPECTIVE AND RETROSPECTIVE OPERATION

1. Statutory provisions creating substantive rights or taking away substantive rights are ordinarily
prospective. However, they are retrospective only if by express words or by necessary implication
the Legislature has made them retrospective.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.15
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

2. Generally, an amendment of substantive law is not retrospective unless expressly laid down.
It may be noted that Declaration about existing law is not an amendment. Whether the law
is declaratory and therefore retrospective or not depends upon the language of the Statute.
3. With respect to provisions of procedural nature, no person has a vested right in any course of
procedure. He has only the right of prosecution or defence in the manner prescribed for the
time being by or for the Court in which the case is pending and if by an Act of Parliament,
the mode of procedure is altered he has no other right than to proceed according to the altered
mode.
4. A change in the law of procedure may operate retrospectively and unlike the law relating to
vested right is not only prospective.

USE OF “MAY” AND “SHALL”

The words “shall” or “may” used in a provision depends on the nature of compliance and
gravity of noncompliance. The standard rule is that the provision containing ‘shall’ is mandatory
and the provision containing ‘may’ is either permissive or discretionary. In other words, ‘shall’
conveys mandatory nature of the provision, while ‘may’ conveys permissive or discretionary
nature. The word ‘may’ be used where a power, permission, benefit or privilege given to some
person may but need not be exercised: exercise is discretionary. The provision using the word
‘may’ is an enabling provision and permissive in nature.

CONFLICT BETWEEN GENERAL PROVISION AND SPECIAL PROVISION

1. Another well-known rule of construction is that general provisions yield to special provisions.
2. The rule that general provisions must give way to specific provisions is not an arbitrary principle
laid down by lawyers and judges, but derives from the common idea that when the same
person gives two directives, one bearing on a large number of matters in general and the other
on some of them only, its intention is that the latter should prevail whenever there is a conflict
between the two.
3. “The rule is that whenever there is a particular enactment and a general enactment in the
same statute and the latter, taken in its most comprehensive sense, would overrule the former,
the particular enactment must be operative, and the general enactment must be taken to
affect only the other parts of the statute to which it may properly apply.”

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.16
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

SOCIALLY BENEFICIAL CONSTRUCTION

For a sure and true interpretation of all statutes in general, four things are to be discerned
and considered:
1. what was the common law before the making of the Act,
2. what was the mischief and defect for which the common law did not provide,
3. what remedy the Parliament had resolved and appointed to cure the disease
4. the true reason of the remedy
In construing social welfare legislation, the courts should adopt a beneficent rule of construction
and in any event, that construction should be preferred which fulfils the policy of the legislation.
Construction to be adopted should be more beneficial to the purpose in favour of and in whose
interest the Act has been passed. So, it is clear that in the matter of interpretation of a
beneficial legislation, the approach of the courts is to adopt a construction which advances the
beneficent purpose underlying the enactment in preference to a construction which tends to
defeat that purpose.
Further, it is a well-known rule of interpretation of statutes that in interpreting legislation on
social security, the tribunal will usually adopt an interpretation that favors the person seeking
to benefit from the legislation. When tribunals are faced with a choice between a broader
meaning that more closely implements what appears to have been the object of the Legislature
and a narrower meaning, they will often choose the former.
It is a sound rule of construction to confine the provisions of a statute to itself. The benefits
intended by social welfare legislation such as the Employees Provident Funds and Miscellaneous
Provisions Act and the Employees State Insurance Act 1948, cannot be defeated by granting
relief under section 633 of the Companies Act,1956 to directors of the Companies in relation
to offences under those Acts.

CONFLICT BETWEEN STATUTE, RULES AND REGULATIONS

It is well settled rule of statutory interpretation that when a rule or form prescribed under a
statute conflict with a statutory provision, the latter will prevail.
“It is well settled that rules framed under the provisions of a statute form part of the statute.
In other words, rules have statutory force. But before a rule can have the effect of a statutory
provision, two conditions must be fulfilled, namely:

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.17
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

a. it must conform to the provisions of the statute under which it is framed; and
b. it must also come within the scope and purview of the rule making power of the authority
framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be
void.”
In the case Union of India v. Namit Sharma, it was inter alia stated that if the rules are made
by the rule making authority and the rules are not in accordance with the provisions of the
Act, the Court can strike down such rules as ultra vires the Act.

DOCTRINE OF SUBSTANTIAL COMPLIANCE

1. The rule that if a good-faith attempt to perform does not precisely meet the terms of an
agreement or statutory requirements, the performance will still be considered complete if the
essential purpose is accomplished, subject to a claim for damages for the shortfall.”
2. The Supreme Court has held that tendency towards technicality is to be deprecated; it is the
substance that counts and must take precedence over mere form.
3. Some rules are vital and go to the root of the matter; they cannot be broken; others are only
directory and a breach of them can be overlooked provided there is substantial compliance with
the rules read as whole and provided no prejudice ensures.
4. Substance must take precedence over form. Of course, there are some rules which are vital and
go to the root of the matter which cannot be broken. There are others where non-compliance
may be condoned or dispensed with.
5. In the latter case, the rule is merely directory provided there is substantial compliance with
the rules read as a whole and no prejudice is caused

Case Law
Umesh Challiyil vs K.P. Rajendran the matter of minor defect has been decided. It may
be summarized as under:
Where in an affidavit it was stated “no part thereof is false” instead of “I believe to
be true”, the Supreme Court held that the substance and the essence had been
conveyed by the words used; both the phraseologies convey the same meaning;
practically the same sense was conveyed and it was not such a defect which could
entail dismissal of the election petition.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.18
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

DOCTRINE OF IMPOSSIBILITY OF PERFORMANCE

No one is bound to do what is impossible; Nobody is expected to do the impossible;

Impossibilium nulla obligatio est (There is no obligation to perform impossible things)

In the case of Raj Kumar Dey and Others vs Tarapada Dey, where the arbitrators
could not take back the award from the custody of the Court to take any further
steps for its registration, the Supreme Court held that the entire period during which
award remained in custody of Court should be excluded and it could not be said that
they failed to get the award registered as the law required i.e., within period of four
months.

BRIEF OF GENERAL CLAUSE ACT, 1897

The General Clauses Act, 1897 has been enacted with the aim and objective to provide a one
single statute as a composite structure in defining different provisions as regards to the
interpretation of words and legal principles which would better placed to be defined for the
general application for various rules and regulations.

The General The General

Interpretation
Clauses Clauses
Act,1850
Act,1868 Act,1897

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.19
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

IMPORTANCE OF THE GENERAL CLAUSES ACT, 1897

The General Clauses Act 1897 belongs to the class of Acts which may be called as interpretation
Acts. An interpretation Act lays down the basic rules as to how courts should interpret the
provisions of an Act of Parliament. It also defines certain words or expressions so that there
is no unnecessary repetition of the definition of those words in other Acts.
The General Clauses Act is a consolidating as well as an extending measure. As a consolidating
measure it did not purport to make any changes in the provisions of law repealed and reenacted
by it. By reason of section 3, the Act becomes statutorily a part of every Central Act passed
after 1897 and by its own force applies to the interpretation of every such enactment.
The Central Acts to which the General Clauses Act applies are:
A. Acts of the Indian Parliament;
B. Acts of the Dominion Legislature passed between the 15th August, 1947 and the 26th January,
1950;
C. Acts passed before the commencement of the Constitution by the Governor-General in Council
or the Governor-General acting in a legislative capacity.

IMPORTANT PROVISIONS OF GENERAL CLAUSES ACT, 1897 (GCA) ARE AS UNDER:

Effect of repeal:
If GCA or any central Act or regulations repeals any enactment then, unless a different
intention appears, the repeal shall not-
a. revive anything not in force at the time at which the repeal takes effect.
b. affect the previous operation of any enactment so repealed or anything done thereunder.
c. affect any right, privilege, obligation or liability acquired, accrued or incurred under any
enactment so repealed.
d. affect any penalty, forfeiture or punishment incurred in respect of any offence committed
against any enactment so repealed.
e. affect any investigation, legal proceeding or remedy in respect of any such right, privilege,

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.20
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

obligation, liability, penalty, forfeiture or punishment as aforesaid. and any such investigation,
legal proceeding or remedy may be instituted, continued or enforced, and any such penalty,
forfeiture or punishment may be imposed as if the repealing Act or Regulation had
not been passed.

Repeal of Act making textual amendment in Act or Regulation:

If Central Act or Regulation repeals any enactment by which the text of any Central Act or
Regulation was amended by the express omission, insertion or substitution, then, unless a
different intention appears, the repeal shall not affect the continuance of any such amendment
made by the enactment so repealed and in operation at the time of such repeal.

Revival of repealed enactment: It shall be necessary, for the purpose of reviving either wholly
or partially, any enactment wholly or partially repealed, expressly to state that purpose.

Computation of time: Where, by any Central Act or Regulation made after the commencement
of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or
office on a certain day or within a prescribed period, then, if the Court or office is closed on
that day or the last day of the prescribed period, the act or proceeding shall be considered as
done or taken in due time if it is done or taken on the next day afterwards on which the
Court or office is open.

Gender and number: In all Central Acts and Regulations, unless there is anything repugnant
in the subject or context:
(i) words importing the masculine gender shall be taken to include females; and
(ii) words in the singular shall include the plural, and vice versa.

Provision as to offences punishable under two or more enactments: where an act or omission
constitutes an offence under two or more enactments, then the offender shall be liable to be
prosecuted and punished under either or any of those enactments, but shall not be liable to
be punished twice for the same offence.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.21
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

According to the Supreme Court in Baliah v. Rangachari, a plain reading of section 26 shows
that there is no bar to the trial or conviction of an offender under two enactments, but there
is only a bar to the punishment of the offender twice for the same offence. In other words,
the section provides that where an act or omission constitutes an offence under two
enactments, the offender may be prosecuted and punished under either or both the enactments
but shall not be liable to be punished twice for the same offence.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.22
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

LIFE IS LIKE A MCQ, SOMETIMES IT’S THE CHOICE THAT CONFUSES YOU, NOT THE
QUESTION ITSELF. LET’S CRACK IT!

Important
Points

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 3.23
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

CHAPTER 4 – ADMINISTRATIVE LAWS

INTRODUCTION
a. Administrative law is that branch of public law that deals with powers, functions and
responsibilities of various organs of the state. It controls the executive branch and makes sure
that it deals fairly with the public.
b. There is no single universal definition of ‘administrative law’ because it means different things
to different theorists.
c. A subset of public law is administrative law. It establishes the administrative and quasi-judicial
authorities’ organisational framework and power structure in order to enforce the law. It
establishes a control system by which administrative agencies maintain their boundaries and
is primarily concerned with official actions and processes.

NEED AND SOURCES OF ADMINISTRATIVE LAW

1. The modern state has three organs- legislative, executive and judiciary. Traditionally, the
legislature was tasked with the making of laws, the executive with the implementation of the
laws and judiciary with the administration of justice and settlement of disputes.
2. However, this traditional demarcation of role has been found wanting in meeting the challenges
of present era. The legislature is unable to come up with the required quality and quantity of
legislations because of limitations of time, the technical nature of legislation and the rigidity
of their enactments.
3. The traditional administration of justice through judiciary is technical, expensive and dilatory.
The states have empowered their executive (administrative) branch to fill in the gaps of
legislature and judiciary.
4. This has led to an all-pervasive presence of administration in the life of a modern citizen. In
such a context, a study of administrative law assumes great significance. The ambit of
administration is wide and embraces following elements within its ambit:
a. It makes policies.
b. It executes, administers and adjudicates the law.
c. It exercises legislative powers and issues rules, bye- laws and orders of a general nature.
The ever-increasing administrative functions have created a vast new complex of relations
between the administration and the citizen.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.1
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

5. Since the whole purpose of bestowing the administration with larger powers is to ensure a
better life for the people, it is necessary to keep a check on the administration, consistent
with efficiency, in such a way that it does not violate the rights of the individual.
6. There is an age-old conflict between individual liberty and government control. There must be
a constant vigil to ensure that a proper balance be evolved between private interest and
government which represents public interest.
7. It is the demand of prudence that when large powers are conferred on administrative organs,
effective control-mechanism be also evolved so as to ensure that the officers do not use their
powers in an undue manner or for an unwarranted purpose. It is the task of administrative law
to ensure that the governmental functions are exercised according to law and legal principles
and rules of reason and justice.
8. where the individual is aggrieved by any action of the administration, he or she can get it
redressed. There is no antithesis between an effective government and controlling the exercise
of administrative powers. Administrative powers are exercised by thousands of officials and
affect millions of people.
9. Administrative efficiency cannot be the end-all of administrative powers and the interests of
people must be at the centre of any conferment of administrative power. If exercised properly,
the vast powers of the administration may lead to the welfare state; but if abused, they may
lead to injustice.

SOURCES OF ADMINISTRATIVE LAW

There are four principal sources of administrative law in India. They are as under:
1. Constitution of India: It is the primary source of administrative law. Article 73 of the
Constitution provides that the executive power of the Union shall extend to matters with
respect to which the Parliament has power to make laws. Similar powers are provided to States
under Article 62. Indian Constitution has not recognized the doctrine of separation of powers
in its absolute rigidity. The Constitution also envisages tribunals, public sector and government
liability which are important aspects of administrative law.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.2
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

2. Acts/ Statutes: Acts passed by the Central and State Governments for the maintenance of
peace and order, tax collection, economic and social growth empower the administrative organs
to carry on various tasks necessary for it.
3. Ordinances, Administrative directions, Notifications Circulars: Ordinances are issued when
there are unforeseen developments and the legislature is not in session and therefore cannot
make laws. Ordinances allow the administration to take necessary steps to deal with such
developments. Administrative directions, notifications and circulars are issued by the executive
in the exercise of power granted under various Acts.
4. Judicial decisions: Judiciary is the final arbiter in case of any dispute between various wings
of government or between the citizen and the administration. In India, we have the supremacy
of Constitution and the Supreme Court is vested with the authority to interpret it.

RULE OF LAW
Rule of Law was developed by British Jurist A.V. Dicey. He derived this term from French
Principle ‘La principle de legalite’ which means the principle of legality. It states that the
government should be governed by Rule of Law instead of Rule of Individual. Any dictator,
monarch or one particular person should not govern the functioning of any nation. Each country
should follow legality of law.
Three major principles given by Dicey in his book “Rule of Law” are:
1. Supremacy of law: It means that ordinary or regular laws shall remain supreme.
2. Equality before the law: According to Dicey, all classes must be equally subject to the ordinary
law of the land as administered by the ordinary law courts. He states that there should be
equality between people.
3. The predominance of a legal spirit: Legal Spirit refers to the judicial precedents upon any
dispute raised by any individual. The judgment given in any case will be the legal spirit of that
particular case. It basically refers to the law as set by the precedents that have evolved over
time.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.3
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

Rule of Law in India

The evolution of Rule of Law in India can be traced to British concept but the modern concept
of Rule of Law was introduced, only after the drafting of Constitution of India. Constitution
of India laid the very foundation of rule of law in India and is the essence of it. Rule of Law
is embedded in Constitution under multiple parts, important aspects are as under:
1. Preamble: The Preamble to the Constitution of India upholds the basic structure of the
Constitution. It talks about the justice, equality, liberty and dignity to all individuals. All of
these aspects ensure Rule of Law in the country.
2. Part III- Fundamental Rights: The rights and fundamental principles of the Constitution of
India are the essential and basic principles that form the foundation of the country's legal
framework. They imply a duty on the state towards ensuring the welfare of its citizens. It
helps to keep a check on the actions of administrative authorities and legislature.
3. Part IV- Directive Principles of State Policy (DPSP): These are the basic guidelines to be
followed by all especially the government of India.

Judicial Aspect
Rule of Law in India has evolved with time. It can be understood with the help of given cases
hereafter.

Kesavananda Bharati vs. State of Kerala

The most critical case in Indian Judicial history with respect to the evolution of Rule of Law in India
was Kesavananda Bharati case. This case changed the entire notion of doctrine of basic structure. A
constitutional bench, consisting of 13 judges stated that Rule of law is the part of basic structure of the
constitution of India.
They observed:
“That Article 31C subverts seven essential features of the Constitution, and destroys ten Fundamental
Rights, which are vital for the survival of democracy, the rule of law and integrity and unity of the
Republic.
An amendment must be confined in its scope to an alteration or improvement of that which is already
contained in the Constitution and cannot change its basic structure, include new grants of power to the
Federal Government, nor relinquish to the State those which already have been granted to it”

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.4
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

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 and fancies. The exercise of discretion should not be arbitrary, vague and fanciful, but
legal and regular.
The government cannot function without the exercise of some discretion by its officials. It is
necessary because it is humanly impossible to lay down a rule for every conceivable eventuality
that may arise in day-to-day affairs of the government. It is, however, equally true that
discretion is prone to abuse. Therefore, there needs to be a system in place to ensure that
administrative discretion is exercised in the right manner.

JUDICIAL REVIEW AND OTHER REMEDIES

Judiciary has played a key role in imposing restrictions on administrative discretion and has
from time to time directed the law makers to formulate the necessary guidelines and rules to
maintain the conduct of administrative officers.
Any country which claims to have a rule of law cannot have a government authority which has
no checks on its power. Administrative organs have wide powers and their exercise of discretion
can be vitiated by a number of factors. Therefore, the government must also provide for proper
redressal mechanism. For India, it is of special significance because of the proclaimed objectives
of Indian polity to build a socialistic pattern of society that has led to huge proliferation of
administrative agencies and processes
In India the modes of judicial control of administrative action can be conveniently grouped
into three heads:

Ordinary or
Constitutional Statutory
Equitable

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.5
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

A. CONSTITUTIONAL
Indian Constitution expressly provides for judicial review. Consequently, an Act passed by the
legislature is required to be in conformity with the requirements of the Constitution and it is
for the judiciary to decide whether or not that Act is in conformity with the Constitutional
requirements.

Judicial Review
1. 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.
2. Judicial Review is the power of the highest Court of a jurisdiction to invalidate on Constitutional
grounds, the acts of other Government agency within that jurisdiction.
3. It is the power of the both Supreme and High Court to determine the validity of the legislature
and executive actions of the government.
4. Constitution is considered as Supreme law and all other laws follows from it. Public authorities
are bound by supreme law, i.e., Constitution and are bound to act in good faith.
5. Judicial review is not an appeal from a decision but a review of the manner in which the
decision has been made. It is concerned not with the decision but with the decision-making
process. The power of judicial review controls not only the legislative but also the executive or
administrative act.
6. Where the act of executive or administration is found ultra vires the Constitution or the relevant
Act, it is declared as such and, therefore, void.
7. The Courts attitude appears to be stiffer in respect of discretionary powers of the executive or
administrative authorities. The Court is not against the vesting of discretionary power in the
executive, but it expects that there would be proper guidelines for the exercise of power. The
Court interferes when the uncontrolled and unguided discretion is vested in the executive or
administrative authorities or the repository of the power abuses its discretion

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.6
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

Airport Authority of India vs. Centre for Aviation Policy, Safety and Research and
Ors.
In this case, the Supreme Court observed that the Court has erred in interfering with
the administration/policy decision of the tender making authority in exercise of powers
Under Article 226 of the Constitution of India even deciding it on merits. The Court
observed that:
“As per the settled position of law, setting of terms and conditions of invitation to
tender are within the ambit of the administration/policy decision of the tender making
authority and as such are not open to judicial scrutiny unless they are arbitrary,
discriminatory or mala fide. In the matter of formulating conditions of a tender
document and awarding a contract, greater latitude is required to be conceded to the
State authorities unless the action of the tendering authority is found to be malicious
and a misuse of its statutory powers, interference by courts is not warranted”

STAGES OF JUDICIAL REVIEW

Judicial review is exercised

at
two stages

at the stage of delegation of at the stage of exercise of

discretion, and administrative discretion.

i. Judicial review at the stage of delegation of discretion

Any law can be challenged on the ground that it is violative of the Constitution and therefore
laws conferring administrative discretion can thus also be challenged under the Constitution.
In the case of delegated legislation, the Constitutional courts have often been satisfied with
vague or broad statements of policy, but usually it has not been so in the cases where
administrative discretion has been conferred in matters relating to fundamental rights.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.7
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

The fundamental rights thus provide a basis to the judiciary in India to control administrative
discretion to a large extent. There have been a number of cases in which a law, conferring
discretionary powers, has been held violative of a fundamental right.

Administrative Discretion and Article 14

a. Article 14 of the Constitution of India provides for equality before law. It prevents arbitrary
discretion being vested in the executive. Article 14 strikes at arbitrariness in state action and
ensures fairness and equality of treatment.
b. Right to equality affords protection not only against discretionary laws passed by legislature
but also prevents arbitrary discretion being vested in the executive. Often executive or
administrative officer of government is given wide discretionary power.
c. In a number of cases, the statute has been challenged on the ground that it conferred on an
administrative authority wide discretionary power of selecting persons or objects discriminately
and therefore, it violated Article 14.
d. The Court in determining the question of validity of such statute examines whether the statute
has laid down any principle or policy for the guidance of the exercise of discretion by the
government in the matter of selection or classification.
e. The Court will not tolerate the delegation of uncontrolled power in the hands of executive to
such an extent as to enable it to discriminate.

State of West Bengal v. Anwar Ali

In this case, it was held that in so far as the Act empowered the Government to have
cases or class of offences tried by special courts, it violated Article 14 of the Constitution.

The court further held the Act invalid as it laid down “no yardstick or measure for the
grouping either of persons or of cases or of offences” so as to distinguish them from
others outside the purview of the Act. Moreover, the necessity of “speedier trial” was held
to be too vague, uncertain and indefinite criterion to form the basis of a valid and
reasonable classification.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.8
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

Administrative Discretion and Article 19

a. Article 19 guarantees certain freedoms to the citizens of India, but they are not absolute.
b. Reasonable restrictions can be imposed on these freedoms under the authority of law. The
reasonableness of the restrictions is open to judicial review. These freedoms can also be afflicted
by administrative discretion.
c. In a large number of cases, the question as to how much discretion can be conferred on the
executive to control and regulate trade and business has been raised.
d. The general principle laid down is that the power conferred on the executive should not be
arbitrary, and that it should not be left entirely to the discretion of any authority to do
anything it likes without any check or control by any higher authority.
e. Where the Act provides some general principles to guide the exercise of discretion and thus
saves it from being arbitrary and unbridled, the court will uphold it, but where the executive
has been granted unfettered power to interfere with the freedom of property or trade and
business, the court will strike down such provision of law.

Case Law
Dr. Ram Manohar v. State of Delhi
In this case, the D.M. was empowered under East Punjab Safety Act, 1949, to make an order
of externment from an area in case he was satisfied that such an order was necessary to
prevent a person from acting in any way prejudicial to public peace and order, the Supreme
Court upheld the law conferring such discretion on the executive on the grounds, inter alia,
that the law in the instant case was of temporary nature and it gave a right to the externee
to receive the grounds of his externment from the executive.

H.R. Banthis v. Union of India

The Supreme Court in this case, declared a licensing provision invalid as it conferred an
uncontrolled and unguided power on the executive. The Gold (Control) Act, 1968, provided for
licensing of dealers in gold ornaments. The Administrator was empowered under the Act to
grant or renew licenses having regard to the matters, inter alia, the number of dealers existing
in a region, anticipated demand, suitability of the applicant and public interest. The Supreme
Court held that all these factors were vague and unintelligible. The term ‘region’ was nowhere

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.9
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

defined in the Act. The expression ‘anticipated demand’ was vague one. The expression
‘suitability of the applicant and ‘public interest’ did not contain any objective standards or
norms.

ii. Judicial review 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:
a. Authority has not exercised its discretion properly- ‘abuse of discretion’.
b. Authority is deemed not to have exercised its discretion at all- ‘non-application of mind.”

1. Abuse of discretion
i. Mala fides: If the discretionary power is exercised by the authority with bad faith or dishonest
intention, the action is quashed by the court. Malafide exercise of discretionary power is always
bad and taken as abuse of discretion. A power is exercised fraudulently if its repository intends
to achieve an object other than that for which he believes the power to have been conferred.
The intention may be to promote another public interest or private interest.

Tata Cellular v. Union of India

The Supreme Court has held that the right to refuse the lowest or any other tender
is always available to the Government but the principles laid down in Article 14 of the
Constitution has to be kept in view while accepting or refusing a tender. There can
be no question of infringement of Article 14 if the Government tries to get the best
person or the best quotation. The right to choose cannot be considered to be an
arbitrary power. Of course, if the said power is exercised for any collateral purpose the
exercise of that power will be struck down.

ii. Irrelevant considerations: If a statute confers power for one purpose, its use for a different
purpose is not regarded as a valid exercise of power and is likely to be quashed by the courts.
If the administrative authority takes into account factors, circumstances or events wholly
irrelevant or extraneous to the purpose mentioned in the statute, then the administrative action
is vitiated.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.10
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

iii. Leaving out relevant considerations: The administrative authority exercising the discretionary
power is required to take into account all the relevant facts. If it leaves out relevant
consideration, its action will be invalid.
iv. Arbitrary orders: The order made should be based on facts and cogent reasoning and not on
the whims and fancies of the adjudicatory authority.
v. Improper purpose: The discretionary power is required to be used for the purpose for which it
has been given.
vi. Colourable exercise of power: Where the discretionary power is exercised by the authority on
which it has been conferred ostensibly for the purpose for which it has been given but in
reality, for some other purpose, it is taken as colourable exercise of the discretionary power and
it is declared invalid.
vii. Non-compliance with procedural requirements and principles of natural justice:
viii. Exceeding jurisdiction: The authority is required to exercise the power within the limits of the
statute. Consequently, if the authority exceeds this limit, its action will be held to be ultra
vires and, therefore, void.

2. Non-application of mind
i. Acting under dictation: Where the authority exercises its discretionary power under the
instructions or dictation from superior authority it is taken as non-exercise of power by the
authority and its decision or action is bad. In such condition the authority purports to act on
its own but in substance the power is not exercised by it but by the other authority. The
authority entrusted with the powers does not take action on its own judgment and does not
apply its mind.
For example, in Commissioner of Police v. Gordhandas Bhanji - the Police Commissioner
empowered to grant license for construction of cinema theatres, granted the license but later
cancelled it on the direction of the Government. The cancellation order was declared bad as
the Police Commissioner did not apply his mind and acted under the dictation of the
Government.
ii. Self-restriction: If the authority imposes fetters on its discretion by announcing rules of policy
to be applied by it rigidly to all cases coming before it for decision, its action or decision will
be bad. The authority entrusted with the discretionary power is required to exercise it after

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.11
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

considering the individual cases and the authority should not imposes fetters on its discretion
by adopting fixed rule of policy to be applied rigidly to all cases coming before it.
iii. Acting mechanically and without due care

B. STATUTORY
The method of statutory review can be divided into two parts:
1. Statutory appeals: There are some Acts, which provide for an appeal from statutory tribunal
to the High Court or Supreme Court on point of law.

Example
Under section 53B of the Competition Act, 2002 the Central
Government or the State Government or a local authority or enterprise
or any person, aggrieved by any direction, decision or order may prefer
an appeal to the National Company Law Appellate Tribunal (NCLAT).

2. Reference to the High Court or statement of case: There are several statutes, which provide
for a reference or statement of case by an administrative tribunal to the High Court.

Example
Under Section 256 of the Income-tax Act, 1961, where an application
is made to the Tribunal by the assessee and the Tribunal refuses
to state the case the assessee may apply to the High Court and if
the High Court is not satisfied about the correctness of the decision
of the Tribunal, it can require the Tribunal to state the case and
refer it to the Court.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.12
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

C. ORDINARY OR EQUITABLE
Apart from the remedies as discussed above there are certain ordinary remedies, which are
available to person against the administration, the ordinary courts in exercise of the power
provide the ordinary remedies under the ordinary law against the administrative authorities.
These remedies are also called equitable remedies and include:
1. Injunction
An injunction is a preventive remedy. It is a judicial process by which one who has invaded or
is threatening to invade the rights of another is restrained from continuing or commencing
such wrongful act.
An injunction can be issued to both administrative and quasi-judicial bodies. Injunction is highly
useful remedy to prevent a statutory body from doing an ultra vires act, apart from the cases
where it is available against private individuals e.g., to restrain the commission or torts, or
breach of contract or breach of statutory duty. Injunction may be prohibitory or mandatory.

i. Prohibitory Injunction: Prohibitory injunction forbids the defendant to do a wrongful act, which
would infringe the right of the plaintiff. A prohibitory injunction may be interlocutory or
temporary injunction or perpetual injunction.
a. Interlocutory or temporary injunction: Temporary injunctions are such as to continue until a
specified time or until the further order of the court. It is granted as an interim measure to
preserve status quo until the case is heard and decided.
b. Perpetual injunction: A perpetual injunction is granted at the conclusion of the proceedings
and is definitive of the rights of the parties, but it need not be expressed to have perpetual
effect, it may be awarded for a fixed period or for a fixed period with leave to apply for an
extension or for an indefinite period terminable when conditions imposed on the defendant
have been complied with, or its operation may be suspended for a period during which the
defendant is given the opportunity to comply with the conditions imposed on him, the plaintiff
being given leave to reply at the end of that time.

ii. Mandatory injunction: When to prevent the breach of an obligation it is necessary to compel
the performance of certain acts which the court is capable of enforcing, the court may in its
discretion grant an injunction to prevent the breach complained of and also to compel

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.13
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

performance of the requisite acts. The mandatory injunction may be taken as a command to
do a particular act to restore things to their former condition or to undo, that which has been
done. It prohibits the defendant from continuing with a wrongful act and also imposes duty
on him to do a positive act.

2. Declaratory Action
Declaration may be taken as a judicial order issued by the court declaring rights of the parties
without giving any further relief. Thus, a declaratory decree declares the rights of the parties.
In such a decree there is no sanction, which an ordinary judgment prescribes against the
defendant. By declaring the rights of the parties, it removes the existing doubts about the
rights and secures enjoyment of the rights.

3. 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

a. One of the most important principles in the administration of justice is that justice must not
only be done but also seen to be done. This is necessary to inspire confidence in the people in
the judicial system.
b. Natural justice is a concept of Common Law and represents procedural principles developed by
judges. Though it enjoys no express constitutional status, it is one of the most important
concepts that ensure that people retain their faith in the system of adjudication.
c. Principles of natural justice are not precise rules of unchanging content; their scope varies
according to the context. Nevertheless, it provides the foundation on which the whole super-
structure of judicial control of administrative action is based.
d. In India, the principles of natural justice are derived from Article 14 and 21 of the Constitution.
e. The courts have always insisted that the administrative agencies must follow a minimum of
fair procedure, i.e., principles of natural justice. The concept of natural justice has undergone a
tremendous change over a period of time. In the past, it was thought that it included just two
rules:

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.14
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

i. rule against bias and

ii. rule of fair hearing.
In the course of time many sub-rules were added which are explained as under:

Rule against bias (nemo judex in causa sua)

According to this rule no person should be made a judge in his own cause. Bias means an
operative prejudice whether conscious or unconscious in relation to a party or issue. It is a
presumption that a person cannot take an objective decision in a case in which he has an
interest. The rule against bias has two main aspects- one, that the judge must not have any
direct personal stake in the matter at hand and two, there must not be any real likelihood of
bias.
Bias can be of the following three types:
1. Pecuniary bias: The judicial approach is unanimous on the point that any financial interest of
the adjudicatory authority in the matter, howsoever small, would vitiate the adjudication. Thus,
a pecuniary interest, howsoever insufficient, will disqualify a person from acting as a Judge.
2. Personal bias: There are number of situations which may create a personal bias in the Judge’s
mind against one party in dispute before him. He may be friend of the party, or related to
him through family, professional or business ties. The judge might also be hostile to one of
the parties to a case. All these situations create bias either in favour of or against the party
and will operate as a disqualification for a person to act as a Judge.
3. Subject matter bias: A judge may have a bias in the subject matter, which means that he
himself is a party, or has some direct connection with the litigation. To disqualify on the
ground of bias there must be intimate and direct connection between adjudicator and the
issues in dispute. To vitiate the decision on the ground of bias as for the subject matter there
must be real likelihood of bias.

Rule of fair hearing (audi alteram partem)

The second principle of natural justice is audi alteram partem (hear the other side) i.e. no one
should be condemned unheard. It requires that both sides should be heard before passing the
order. This rule implies that a person against whom an order to his prejudice is passed should

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.15
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

be given information as to the charges against him and should be given opportunity to submit
his explanation thereto.
Following are the ingredients of the rule of fair hearing:
1. Right to notice: Hearing starts with the notice by the authority concerned to the affected
person. Consequently, notice may be taken as the starting point of hearing. Unless a person
knows the case against him, he cannot defend himself. Therefore, before the proceedings start,
the authority concerned is required to give to the affected person the notice of the case against
him. The proceedings started without giving notice to the affected party, would violate the
principles of natural justice. The notice must give sufficient time to the person concerned to
prepare his case and must be adequate and reasonable. It is required to be clear and
unambiguous.
2. Right to present case and evidence: The party against whom proceedings have been initiated
must be given full opportunity to present his or her case and the evidence in support of it.
The reply is usually in the written form and the party is also given an opportunity to present
the case orally though it is not mandatory.
3. Right to rebut adverse evidence: For the hearing to be fair the adjudicating authority is not
only required to disclose to the person concerned the evidence or material to be taken against
him but also to provide an opportunity to rebut the evidence or material.
i. Cross-examination.
ii. Legal Representation: Ordinarily the representation through a lawyer in the administrative
adjudication is not considered as an indispensable part of the fair hearing. However, in certain
situations denial of the right to legal representation amounts to violation of natural justice.
Thus where the case involves a question of law or matter which is complicated and technical
or where the person is illiterate or expert evidence is on record or the prosecution is conducted
by legally trained persons, the denial of legal representation will amount to violation of natural
justice because in such conditions the party may not be able to meet the case effectively and
therefore he must be given the opportunity to engage professional assistance to make his right
to be heard meaningful.
4. Disclosure of evidence: A party must be given full opportunity to explain every material that
is sought to be relied upon against him. Unless all the material on which the proceeding is
based is disclosed to the party, he cannot defend himself properly.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.16
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

5. Speaking orders: Reasoned decision may be taken to mean a decision which contains reason
in its support. When the adjudicatory bodies give reasons in support of their decisions, the
decisions are treated as reasoned decision. It is also called speaking order. In such condition
the order speaks for itself or it tells its own story. Reasoned decision introduces a check on
the administrative powers because the decisions need to be based on cogent reasons. It excludes
or at least minimizes arbitrariness.

Canara Bank and Ors. vs. Debasis Das and Ors.

“Principles of natural justice are those rules which have been laid down by the Courts as
being the minimum protection of the rights of the individual against the arbitrary
procedure that may be adopted by a judicial, quasi-judicial and administrative authority
while making an order affecting those rights. These rules are intended to prevent such
authority from doing injustice.”

EXCEPTIONS TO NATURAL JUSTICE

1. Statutory Exclusion: The principle of natural justice may be excluded by the statutory provision.
Where the statute expressly provides for the observance of the principles of natural justice, the
provision is treated as mandatory and the authority is bound by it. Where the statute is silent
as to the observance of the principle of natural justice, such silence is taken to imply the
observance thereto.

2. Emergency: In exceptional cases of urgency or emergency where prompt and preventive action
is required the principles of natural justice need not be observed. Thus, the pre-decisional
hearing may be excluded where the prompt action is required to be taken in the interest of
the public safety or public morality and any delay in administrative order because of pre-
decisional hearing before the action may cause injury to the public interest and public safety.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.17
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

Maneka Gandhi v. Union of India AIR 1978 SC

In this case the Supreme Court observed that a passport may be impounded in public
interest without compliance with the principles of natural justice but as soon as the order
impounding the passport has been made, an opportunity of post decisional hearing, remedial
in aim, should be given to the person concerned. In the case, it has also been held that
“public interest” is a justiciable issue and the determination of administrative authority on
it is not final.

3. Interim disciplinary action: The rules of natural justice are not attracted in the case of interim
disciplinary action. For example, the order of suspension of an employee pending an inquiry
against him is not final but interim order and the application of the rules of natural justice is
not attracted in the case of such order.

Abhay Kumar v. K. Srinivasan

In this case an order was passed by the college authority debarring the student from
entering the premises of the college and attending the class till the pendency of a criminal
case against him for stabbing a student. The Court held that the order was interim and
not final. It was preventive in nature. It was passed with the object to maintain peace in
the campus. The rules of natural justice were not applicable in such case.

4. Academic evaluation: Where a student is removed from an educational institution on the

grounds of unsatisfactory academic performance, the requirement of pre-decisional hearing is
excluded. The Supreme Court has made it clear that if the competent academic authority assess
the work of a student over the period of time and thereafter declare his work unsatisfactory
the rule of natural justice may be excluded but this exclusion does not apply in the case of
disciplinary matters.

5. Impracticability: Where the authority deals with a large number of persons it is not practicable
to give all of them opportunity of being heard and therefore in such condition the court does
not insist on the observance of the rules of natural justice.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.18
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

P. Radhakrishna v. Osmania University,

In this case, the entire M.B.A. entrance examination was cancelled on the ground of
mass copying. The court held that it was not possible to give all the examinees the
opportunity of being heard before the cancellation of the examination.

EFFECT OF FAILURE OF NATURAL JUSTICE

1. When an authority required to observe natural justice in making an order fails to do so, should
the order made by it be regarded as void or voidable?
2. Generally speaking, a voidable order means that the order was legally valid at its inception, and
it remains valid until it is set aside, that is, it has legal effect up to the time it is quashed.
On the other hand, a void order is no order at all from its inception; it is nullity and void ab
initio.
3. 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. For example, an order challenged as a
nullity for failure of natural justice gives rise to the following crucial question: Was the authority
required to follow natural justice?
4. Usually, a violable order cannot be challenged in collateral proceedings. It has to be set aside
by the court in separate proceedings for the purpose. Suppose, a person is prosecuted criminally
for infringing an order. He cannot then plead that the order is voidable. He can raise such a
plea if the order is void. In India, by and large, the judicial thinking has been that a quasi-
judicial order made without following natural justice is void and nullity.

CASE LAWS
Nawabkhan v. Gujarat. 1974 AIR 1471
a. In this case, Section 56 of the Bombay Police Act, 1951 is talked about. It empowers the Police
Commissioner to extern any undesirable person on certain grounds set out therein.
b. An order passed by the Commissioner on the petitioner was disobeyed by him and he was
prosecuted for this in a criminal court. During the pendency of his case, on a writ petition filed

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.19
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

by the petitioner, the High Court quashed the internment order on the ground of failure of
natural justice.
c. The trial court then acquitted the appellant. The government appealed against the acquittal
and the High Court convicted him for disobeying the order.
d. The High Court took the position that the order in question was not void ab initio; the appellant
had disobeyed the order much earlier than date it was infringed by him; the High Court’s own
decision invalidating the order in question was not retroactive and did not render it a nullity
from its inception but it was invalidated only from the date the court declared it to be so by
its judgment.
e. However, the matter came in appeal before the Supreme Court, which approached the matter
from a different angle. The order of internment affected a fundamental right (Article 19) of
the appellant in a manner which was not reasonable. The order was thus illegal and
unconstitutional and hence void.
f. The court ruled definitively that an order infringing a constitutionally guaranteed right made
without hearing the party affected, where hearing was required, would be void ab initio and
ineffectual to bind the parties from the very beginning and a person cannot be convicted for
non-observance of such an order.
g. The Supreme Court held that where hearing is obligated by statute which affects the
fundamental right of a citizen, the duty to give the hearing sound in constitutional requirement
and failure to comply with such a duty is fatal.

LIABILITY OF STATE OR GOVERNMENT IN CONTRACT

The Constitution of India allows the central and the state governments to enter into contracts
under Article 299 of the Constitution of India. According to its provisions a contract with the
Government of the Union or state will be valid and binding only if the following conditions are
followed:
1. The contract with the Government must be made in the name of the President or the Governor
2. The contract must be executed on behalf of the President or the Governor of the State
3. A person duly authorized by the President or the Governor of the State, as the case may be,
must execute the contract

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.20
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

Article 299 (2) of the Constitution makes it clear that neither the President nor the Governor
shall be personally liable in respect of any contract or assurance made or executed for the
purposes of the Constitution. The Supreme Court has made it clear that the provisions of Article
299 (1) are mandatory and therefore the contract made in contravention thereof is void.

EFFECT OF A VALID CONTRACT WITH GOVERNMENT

As soon as a contract is executed with the Government in accordance with Article 299, the
whole law of contract as contained in the Indian Contract Act, 1872 comes into operation.
Earlier the writ of mandamus could not be issued for the enforcement of contractual obligations
but the Supreme Court in its pronouncement in Gujarat State Financial Corporation v. Lotus
Hotels, has taken a new stand and held that the writ of mandamus can be issued against the
Government or its instrumentality for the enforcement of contractual obligations.

LIABILITY OF THE PUBLIC SERVANT

1. Liability of the State must be distinguished from the liability of individual officers of the State.
So far as the liability of individual officers is concerned, if they have acted outside the scope
of their powers or have acted illegally, they are liable to same extent as any other private
citizen would be.
2. The ordinary law of contact or torts or criminal law governs that liability. An officer acting in
discharge of his duty without bias or malafides could not be held personally liable for the loss
caused to another person.
3. However, such acts have to be done in pursuance of his official duty and they must not be
ultra vires his powers. Where a public servant is required to be protected for acts done in the
course of his duty, special statutory provisions are made for protecting him from liability.
4. The term ‘Statutory Corporation’ (or Public Corporation) refers to such organisations which are
incorporated under the special Acts of the Parliament/State Legislative Assemblies.
5. Its management pattern, its powers and functions, the area of activity, rules and regulations
for its employees and its relationship with government departments, etc. are specified in the
concerned Act. It may be noted that more than one corporation can also be established under
the same Act. State Electricity Boards and State Financial Corporation fall in this
category.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.21
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

The main features of Statutory Corporations are as follows:

It is incorporated under a Special Act of Parliament or State Legislative

Assembly.

It is an autonomous body and is free from government control in respect

of its internal management. However, it is accountable to Parliament or
State legislature

It has a separate legal existence

It is managed by Board of Directors, which is composed of Individuals

who are trained and experienced in business management.

It is supposed to be self -sufficent in financial matters.However, in case of

necessity it may take loan and/or seek assitance from the government.

The employees of the enterprises are recruited as per their own requirements
by following the terms and conditions of recruitment decided by the Board.

, the
various schools of jurisprudence, instead of recognizing both
these aspects, emphasize on one or the other.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.22
YES Academy for CS & Law Mindset is Everything…. CS Executive - JIGL

LIFE IS LIKE A MCQ, SOMETIMES IT’S THE CHOICE THAT CONFUSES YOU, NOT THE
QUESTION ITSELF. LET’S CRACK IT!

Important
Points

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 4.23
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

CHAPTER 5 – LAW OF TORTS

INTRODUCTION
The word ‘tort’ is a French equivalent of English word ‘wrong’. The word tort is derived from
Latin language from the word Tortum. Thus, simply stated ‘tort’ means wrong. But every wrong
or wrongful act is not a tort. Tort is really a kind of civil wrong as opposed to criminal wrong.
Wrongs, in law, are either public or private.
Broadly speaking, public wrongs are the violations of ‘public law and hence amount to be
offences against the State, while private wrongs are the breaches of private law, i.e., wrongs
against individuals. Public wrongs or crimes are those wrongs which are made punishable under
the penal law which belong to the public law group.
Section 2(m) of the Limitation Act, 1963, states: “Tort means a civil wrong which is not
exclusively a breach of contract or breach of trust.”
Two important elements can be derived from all these definitions, namely:
1. that a tort is a species of civil injury of wrong as opposed to a criminal wrong, and
2. that every civil wrong is not a tort.

ELEMENTS OF TORT
1. A civil wrong.
2. This civil wrong is not a breach of contract or breach of trust.
3. This wrong is redressable by an action for unliquidated damages.

Damage and Damages

Damage means the legal loss or violation of legal right, i.e. infringement of legal right.
Damages means monetary, pecuniary compensation or compensation in terms of money. Further,
the damages may be Liquidated and Unliquidated Damages.

Liquidated and Unliquidated Damages

Liquidated Damages means pre-determined or fixed compensation for some loss.
Unliquidated Damages refers to damages which are not predetermined or decided by the parties,
they are not known beforehand.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.1
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

KINDS OF TORTIOUS LIABILITY & GENERAL CONDITIONS

Kinds of Tortious
Liability

Liability against Strict or Vicarious

Vicarious
civil wrong(In Absolute Liability of the
Liability
general) Liability State

A. Liability against Civil Wrong (In general)

Civil Wrong
Civil wrong refers to those, which satisfies the condition of liabilities and are remedied by law,
when someone loses money due to the negligence of another, this is known as a civil wrong.
Damage to property or reputation, failure to fulfil contractual duties, physical or mental harm,
etc. are all examples of wrongful losses. The victim of a civil wrong has the right to sue the
offending party in order to recover damages for the harm suffered.

General Conditions of Liability for a Tort

1. A wrongful act or omission of the defendant;
2. The wrongful act must result in causing legal damage to another; and
3. The wrongful act must be of such nature as to give rise to a legal remedy.

1. Wrongful act:
It should prejudicially affect any of the above-mentioned interests, and protected by law. Thus,
every person whose legal rights, e.g., right of reputation, right of bodily safety and freedom,
and right to property are violated without legal excuse, has a right of action against the person
who violated them, whether loss results from such violation or not.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.2
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

In a case, Glasgow Corporation v. Taylor, 1922, a corporation failed to put proper fencing
to keep the children away from a poisonous tree and a child plucked and ate the fruit
of the same tree and died. Court held corporation liable for such omission.

2. Legal damages:
It is not every damage that is a damage in the eye of the law. It must be a damage which
the law recognizes as such. In other words, there should be legal injury or invasion of the legal
right. In the absence of an infringement of a legal right, an action does not lie. Also, where
there is infringement of a legal right, an action lies even though no damage may have been
caused.
As was stated in Ashby v. White, legal damage is neither identical with actual damage
nor is it necessarily pecuniary.
Two maxims, namely:
i. Damnum sine injuria (Damage without injury), and
ii. Injuria sine damnum (injury without damage)

Damnum Sine Injuria

Damnum means harm, loss or damage in respect of money, comfort, health, etc. Injuria means
infringement of a right conferred by law on the plaintiff. The maxim means that in a given
case, a man may have suffered damage and yet have no action in tort, because the damage is
not to an interest protected by the law of torts. Therefore, causing damage, however substantial
to another person is not actionable in law unless there is also a violation of a legal right of
the plaintiff.

Gloucester Grammar School Case,

In this case, defendant after leaving Plaintiff’s School where he worked as a teacher,
started his own school. Being a teacher of standing, many students of Plaintiff’s school
left and enrolled themselves into defendant’s school. Plaintiff filed a suit for monetary
damages incurred by his own. Court held that defendant is not liable because competition
is no ground of action even though monetary loss is caused.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.3
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

Injuria Sine Damnum

It means injury without damage, i.e., where there is no damage resulted yet it is an injury or
wrong in tort, i.e. where there is infringement of a legal right not resulting in harm but plaintiff
can still sue in tort.
Injuria sine Damnum covers such cases and action lies when the right is violated even though
no damage has occurred. Thus, the act of trespassing upon another’s land is actionable even
though it has not caused the plaintiff even the slightest harm.

Ashby V White, 1703

In this case, the plaintiff was prevented from voting at an election by the defendant.
Plaintiff sued defendant for compensation even if no monetary loss was incurred by
him. It was held that defendant was liable to pay compensation because he has violated
legal right of plaintiff to cast his vote. Defendant had committed a tort.

3. Legal remedy: The third condition of liability for a tort is legal remedy. This means that to
constitute a tort, the wrongful act must come under the law. The main remedy for a tort is
an action for unliquidated damages, although some other remedies, e.g., injunction, may be
obtained in addition to damages or specific restitution may be claimed in an action for the
detention of a chattel. Self-help is a remedy of which the injured party can avail himself
without going to a law court. It does not apply to all torts and perhaps the best example of
these to which it does apply is trespass to land.

MENS REA
How far a guilty mind of persons is required for liability for tort?
Mens Rea or guilty mind creates liability on the principle that mere act of the person is not
enough to create his liability. 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. It does
not mean that for the law or Torts, the act must be done with an evil motive, but simply
means that mind must concur in the Act, the act must be done either with wrongful intention
or negligence. It is not so easy to make such generalization about liability in tort. Mens rea
can be interpreted into two ways:

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.4
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

i. Fault/ state of mind when relevant: Many branches of law of torts like assault, battery, false
imprisonment, deceit, malicious prosecution and conspiracy, the state of mind of other person
is taken into account to ascertain his liability. Defendant’s conduct may be innocent and the
act done might be due to an accident. That all should be taken into account.
ii. Liability without fault: There are cases wherein the mental state of the doer stands irrelevant
and the liability still falls on the shoulder of the doer even if that act was done without any
wrongful intentions. So, liability under law of torts may also be fixed even if mens rea is not
present.

B. STRICT OR ABSOLUTE LIABILITY

In some torts, the defendant is liable even though the harm to the plaintiff occurred without
intention or negligence on the defendant’s part. In other words, the defendant is held liable
without fault. These cases fall under the following categories:
i. Liability for Inevitable Accident – Such liability arises in cases where damage is done by the
escape of dangerous substances brought or kept by anyone upon his land. Such cases are where
a man is made by law an insurer of other against the result of his activities.
ii. Liability for Inevitable Mistake – Such cases are where a person interferes with the property
or reputation of another.

Rule in Rylands v. Fletcher

The rule in Rylands v. Flethcer is that a man acts at his peril and is the insurer of the safety
of his neighbour against accidental harm. Such duty is absolute because it is independent of
negligence on the part of the defendant or his servants. It was held in that case that: “If a
person brings or accumulates on his land anything which, if it should escape may cause damage
to his neighbours, he does so at his own peril.
He is responsible, however careful he may have been, and whatever precautions he may have
taken to prevent damage.”
The facts of this case were as follows:
i. B, a mill owner employed independent contractors, who were apparently competent to construct
a reservoir on his land to provide water for his mill.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.5
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

ii. There were old disused mining shafts under the site of the reservoir which the contractors
failed to observe because they were filled with earth. The contractors therefore, did not block
them.
iii. When the water was filled in the reservoir, it bursts through the shafts and flooded the
plaintiff’s coal mines on the adjoining land. It was found as a fact that B did not know of
the shafts and had not been negligent, though the independent contractors, had been, B was
still held liable.
iv. Blackburn, J., observed; “We think that the true rule of law is that the person, who for his
own purposes brings on his lands and collects and keeps there anything likely to do mischief
if it escapes, must keep it at his peril and if, he does not do so is, prima facie answerable for
all the damage which is the natural consequence of its escape.”

Two conditions are necessary in order to apply the rule in Ryland v. Fletcher, these are:
a. Escape from the Control.
b. Non-natural use of Land.

EXCEPTIONS TO THE RULE OF STRICT LIABILITY.

Damage due to Natural Use of the Land

Consent of the plantiff

Act of Third Party

Statutory Authority

Act of God

Escape due to plantiff's own Default

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.6
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

The following exceptions to the rule of strict liability have been introduced in course of time,
some of them being inherent in the judgment itself in Ryland v. Fletcher:

1. Damage due to Natural Use of the Land

In Ryland v. Fletcher water collected in the reservoir in such large quantity, was held to be
nonnatural use of land. Keeping water for ordinary domestic purpose is ‘natural use’. Things
not essentially dangerous which is not unusual for a person to have on his own land, such as
water pipe installations in buildings and necessary wiring for supplying electric light, fall under
the category of “natural use” of land.

2. Consent of the plaintiff

Where the plaintiff has consented to the accumulation of the dangerous thing on the
defendant’s land, the liability under the rule in Ryland v. Fletcher does not arise. Such a
consent is implied where the source of danger is for the ‘common benefit’ of both the plaintiff
and the defendant.

3. Act of Third Party

If the harm has been caused due to the act of a stranger, who is neither defendant’s servant
nor agent nor the defendant has any control over him, the defendant will not be liable. Thus,
in Box v. Jubh, the overflow from the defendant’s reservoir was caused by the blocking of a
drain by stranger, the defendant was held not liable. But if the act of the stranger, is or can
be foreseen by the defendant and the damage can be prevented, the defendant must, by due
care prevent the damage. Failure on his part to avoid such damage will make him liable.

4. Statutory Authority
Statutory authority means that a law gives permission for certain actions that would normally
be considered wrong or illegal. If harm or damage occurs because of those authorized actions,
the party responsible may not be held strictly liable. In other words, they are protected from
being automatically held responsible for the harm caused. Sometimes, public bodies storing
water, gas, electricity are by statute, exempted from liability

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.7
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

5. Act of God
If an escape is caused, through natural causes and without human intervention circumstances
which no human foresight can provide against and of which human prudence is not bound to
recognize the possibility, there is then said to exist the defence of Act of God.

6. Escape due to plaintiff’s own Default

Damage by escape due to the plaintiff’s own default was considered to be good defence in
Rylands v. Fletcher itself. Also, if the plaintiff suffers damage by his own intrusion into the
defendant’s property, he cannot complain for the damage so caused.

APPLICABILITY OF THE RULE IN RYLANDS V. FLETCHER IN CASES OF ENTERPRISES

ENGAGED IN A HAZARDOUS OR INHERENTLY DANGEROUS INDUSTRY
a. The Supreme Court has discussed the applicability of the rule of Rylands v. Fletcher in the
case of M.C. Mehta v. Union of India and Others while determining the principles on which
the liability of an enterprise engaged in a hazardous or inherently dangerous industry depended
if an accident occurred in such industry.
b. On the question of the nature of liability for a hazardous enterprise the court while noting
that the above rule as developed in England recognizes certain limitations and responsibilities
recorded its final view as follows:
c. “We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous
industry which poses a potential threat to the health and safety of the persons working in the
factory and residing in the surrounding areas, owes an absolute and non-delegable duty to the
community to ensure that no harm results to anyone on account of hazardous or inherently
dangerous nature of the activity which it has undertaken.
d. The enterprise must be held to be under an obligation to provide that the hazardous or
inherently dangerous activity in which it is engaged, must be conducted with the highest
standards of safety; and if any harm results on account of such activity, the enterprise must
be absolutely liable to compensate for such harm; and it should be no answer to the enterprise
to say that it had taken all reasonable care and that the harm occurred without negligence on
its part.”

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.8
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

e. Thus, while imposing absolute liability for manufacture of hazardous substances, the Supreme
Court intended that the requirement of non-natural use or escape of a dangerous substance,
commonly regarded as essential for liability under Rylands v. Fletcher, need not be proved in
India.

M. C Mehta & Ors. v. Union of India

Commonly known as Oleum Gas Leak case, this case law changed the face of applicability of
the rule of strict liability in India. There was an escape of Oleum gas from Units of Shriram
Food & Fertilizers Industries on 4th and 6th December, 1985 and applications were filed for
award of compensation to the persons who had suffered harm on account of escape of oleum
gas. Court held that an industry is required to make sure that no one is harmed when engaging
in risky operations that could endanger the health and safety of adjacent workers and residents.
As part of the social cost of conducting such risky activities on its property, this industry is
required to carry out its operations in accordance with the highest standards of safety and
must be fully accountable for compensating for any harm caused.

C. 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. This is known as
vicarious liability in tort.

Essential elements of Vicarious Liability

In case of a master servant relationship, master is liable for the act of servant if following
requirements are met with:
i. There must be an existing relationship between master and servant
ii. Servant has committed some tortious act
iii. This tortious act must be done during the course of employment.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.9
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

Types of vicarious liability

The common examples of such a liability are:
1. Principal and Agent [Specific authority]
Qui facit per alium facit per se – he who acts through another is acting himself, so that the
act of the agent is the act of the principal. When an agent commits a tort in the ordinary
course of his duties as an agent, the principal is liable for the same.
In Lloyd v. Grace, Smith & Co., the managing clerk of a firm of solicitors, while acting in the
ordinary course of business committed fraud, against a lady client by fraudulently inducing her
to sign documents transferring her property to him. He had done so without the knowledge of
his principal who was liable because the fraud was committed in the course of employment.

2. Partners
For the tort committed by a partner in the ordinary course of the business of the firm, all the
other partners are liable therefore to the same extent as the guilty partner. The liability of the
partners is joint and several.
In Hamlyn v. Houston & Co., one of the two partners bribed the plaintiff’s clerk and induced
him to divulge secrets relating to his employer’s business. It was held that both the partners
were liable for the tort committed by only one of them.

3. Master and Servant [Authority by relation]

A master is liable for the tort committed by his servant while acting in the course of his
employment. The servant, of course, is also liable; their liability is joint and several. A master
is liable not only for the acts which have been committed by the servant, but also for acts
done by him which are not specifically authorized, in the course of his employment.
The basis of the rule has been variously stated: on the maxim Respondeat Superior (Let the
principal be liable) or on the maxim Qui facit per alium facit per se (he who does an act
through another is deemed to do it himself). The master is liable even though the servant
acted against the express instructions, for the benefit of his master, so long as the servant
acted in the course of employment.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.10
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

4. Liability for the acts of Servants/Employees

An employer is liable whenever his servant commits a tort in the course of his employment.
An act is deemed to be done in the course of employment if it is either:
a. a wrongful act authorized by the employer, or
b. a wrongful and unauthorized mode of doing some act authorized by the employer.
So, for as the first alternative is concerned there is no difficulty in holding the master liable
for the tort of his servant.
A few examples, however, are necessary to explain the working of the rule in the second. These
are as follows:
In Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board
The driver of a petrol lorry, while transferring petrol from the lorry to an underground tank at
a garage, struck a match in order to light a cigarette and then threw it, still alight on the
floor. An explosion and a fire ensued. The House of Lords held his employers liable for the
damage caused, for he did the act in the course of carrying out his task of delivering petrol;
it was an unauthorized way of doing what he was employed to do.
Similarly, in Bayley v. Manchester, erroneously thinking that the plaintiff was in the wrong
train, a porter of the defendants forcibly removed him. The defendants were held liable.

D. VICARIOUS LIABILITY OF THE STATE

1. The Position in England
At Common Law the Crown could not be sued in tort, either for wrongs actually authorized by
it or committed by its servants, in the course of their employment. With the passing of the
Crown Proceeding Act, 1947, the Crown is liable for the torts committed by its servants just
like a private individual. Thus, in England, the Crown is now vicariously liable for the torts of
its servants.

2. 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.
When a case of Government liability in tort comes before the courts, the question is whether
the particular Government activity, which gave rise to the tort, was the sovereign function or

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.11
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

non-sovereign function. If it is a sovereign function, it could claim immunity from the tortuous
liability, otherwise not. Generally, the activities of commercial nature or those which can be
carried out by the private individual are termed as non-sovereign functions.

Role of the State in Law of Torts

1. Article 300(1) of the Constitution provides first, that the Government of India may sue or be
sued by the name of the Union of India and the Government of a State may sue or be sued
by the name of the State
2. So far as the Supreme Court is concerned, State of Rajasthan vs. Vidyawati is the first post-
Constitution judgment on Liability of the State in Tort. That was a case where the driver of a
government jeep, which was being used by the Collector of Udaipur, knocked down a person
walking on the footpath by the side of a public road. The injured person died three days later,
in the hospital.
3. The legal representatives of the deceased sued the State of Rajasthan and the driver for
compensation / damages for the tortious act Committed by the driver. It was found by the
court, as a fact, that the driver was rash and negligent in driving the jeep and that the
accident was the result of such driving on his part.
4. The suit was decreed by the trial court, and also by the High Court. The appeal against the
High Court judgment was dismissed by the Supreme Court.
5. “The State of Rajasthan has not shown that the Rajasthan Union, was not liable by any rule
of positive enactment or by Common Law.
6. “Viewing the case from the point of view of first principles, there should be no difficulty in
holding that the State should be as much liable for tort in respect of tortious acts committed
by its servant within the scope of his employment and functioning as such, as any other
employer.
7. Kasturi Lal vs. State of UP In that case, the plaintiff had been arrested by the police officers
on a suspicion of possessing stolen property. On a search of his person, a large quantity of gold
was found and was seized under the provisions of the Code of Criminal Procedure. Ultimately,
he was released, but the gold was not returned, as the Head Constable in charge of the
malkhana had absconded with the gold. The plaintiff thereupon brought a suit against the
State of UP for the return of the gold.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.12
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

8. The trial court decreed the suit, but the decree was reversed on appeal by the High Court.
When the matter was taken to the Supreme Court, the court found, that “the act of negligence
was committed by the police officers while dealing with the property of Ralia Ram, which they
had seized in exercise of their statutory powers.
9. The power to arrest a person, to search him and to seize property found with him, are powers
conferred on the specified officers by statute and in the last analysis, they are powers which
can be properly categorized as sovereign powers; and so, there is no difficulty in holding that
the act which gave rise to the present claim for damages has been committed by the employee
of the respondent during the course of its employment; but the employment in question being
of the category which can claim the special characteristic of sovereign power, the claim cannot
be sustained.”

Distinction between Sovereign and Non-Sovereign Functions

This distinction between sovereign and non-sovereign functions was considered at some length
in N. Nagendra Rao vs. State of AP, the court enunciated the following legal principles:
1. In the modern sense, the distinction between sovereign or non-sovereign power thus does not
exist. It all depends on the nature of the power and manner of its exercise. Legislative
supremacy under the Constitution arises out of constitutional provisions. The legislature is free
to legislate on topics and subjects carved out for it. Similarly, the executive is free to implement
and administer the law. A law made by a legislature may be bad or may be ultra vires, but,
since it is an exercise of legislative power, a person affected by it may challenge its validity
but he cannot approach a court of law for negligence in making the law.
2. Nor can the Government, in exercise of its executive action, be sued for its decision on political
or policy matters. It is in (the) public interest that for acts performed by the State, either in
its legislative or executive capacity, it should not be answerable in torts. That would be illogical
and impracticable. It would be in conflict with even modern notions of sovereignty”.
3. The court in the above case suggested the following tests –
“One of the tests to determine if the legislative or executive function is sovereign in nature is,
whether the State is answerable for such actions in courts of law. For instance, acts such as
defence of the country, making peace or war and retain territory, are functions which are
indicative of external sovereignty and are political in nature. Therefore, they are not amenable

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.13
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

to jurisdiction of ordinary civil court. The State is immune from being sued, as the jurisdiction
of the courts in such matters is impliedly barred.”
4. The court proceeded further and stated that the state however cannot claim immunity in non-
sovereign activities and will be liable under law of torts.

Anita Bhandari and Ors. v. Union of India

In this case, the husband of the petitioner went to bank to deposit the cash and alongside
cash box of the bank was also being carried inside, the security guard in a haste ended
up firing the petitioner’s husband thereby killing him. The petitioner claimed that the
bank was vicariously accountable for the incident since the security guard had committed
the conduct while on the job, but the bank argued that it had not given the employee
permission to fire. The bank was found to be responsible by the court because providing
the guard with a gun amounted to giving him permission to shoot when he felt it was
necessary, even though the guard had acted too vigorously in the performance of his duty.

TORTS OR WRONGS TO PERSONAL SAFETY AND FREEDOM

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

Battery

Assault

Bodily Harm

False Imprisonment

Malicious Prosecution

Nervous Shock

Defamation

Negligence

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.14
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

1. Battery
Any direct application of force to the person of another individual without his consent or lawful
justification is a wrong of battery. To constitute a tort of battery, therefore, two things are
necessary:
a. use of force, however, trivial it may be without the plaintiff’s consent, and
b. without any lawful justification.

Defence
Touching a person with not more than reasonable force is not battery. In the case Sitaram v.
Jaswant Singh, it was held that an occupier is entitled to expel a trespasser and if necessary,
even forcibly remove from his premises. But the force exercised should be reasonable and not
greater than necessary, quite disproportionate to the evil to be prevented.

2. Assault
Assault is any act of the defendant which directly causes the plaintiff immediately to apprehend
a contact with his person. Thus, when the defendant by his act creates an apprehension in
the mind of the plaintiff that he is going to commit battery against him, the tort of assault
is committed. Usually when there is a battery, there will also be assault, but not for instance,
when a person is hit from behind.

3. Bodily Harm
A wilful act of defendant, calculated to cause physical harm to the plaintiff and in fact causing
physical harm to him, is a tort.

4. False Imprisonment
False imprisonment consists in the imposition of a total restraint for some period, however
short, upon the liberty of another, without sufficient lawful justification. It is a serious violation
of a person’s right and liberty whether being confined within the four walls or by being
prevented from leaving place where he is. If a man is restrained, by a threat of force from
leaving his own house or an open field there is false imprisonment.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.15
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

5. Malicious Prosecution
Malicious prosecution consists in instigating judicial proceedings (usually criminal) against
another, maliciously and without reasonable and probable cause, which terminate in favour of
that other and which results in damage to his reputation, personal freedom or property.
The following are the essential elements of this tort:
a. There must have been a prosecution of the plaintiff by the defendant.
b. There must have been want of reasonable and probable cause for that prosecution.
c. The defendant must have acted maliciously (i.e. with an improper motive and not to further
the end of justice).
d. The plaintiff must have suffered damages as a result of the prosecution.
e. The prosecution must have terminated in favour of the plaintiff.
To be actionable, the proceedings must have been instigated actually by the defendant. If he
merely states the fact as he believes them to a policeman or a magistrate, he is not responsible
for any proceedings which might ensue as a result of action by such policeman or magistrate
on his own initiative.

6. Nervous Shock
It provides relief when a person may get physical injury not by an impact, e.g., by stick, bullet
or sword but merely by the nervous shock through what he has seen or heard. Causing of
nervous shock itself is not enough to make it an actionable tort, some injury or illness must
take place as a result of the emotional disturbance, fear or sorrow.

7. Defamation
a. Defamation is an attack on the reputation of a person. It means that something is said or
done by a person which affects the reputation of another.
b. It is defined as follows:
“Defamation is the publication of a statement which tends to lower a person in the estimation
of right-thinking members of society generally; or which tends to make them shun or avoid
that person.”

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.16
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

c. Defamation may be classified into two heads: Libel and Slander. Libel is a representation made
in some permanent form, e.g., written words, pictures, caricatures, cinema films, effigy, statue
and recorded words.
d. Slander is the publication of a defamatory statement in a transient form; statement of
temporary nature such as spoken words, or gestures.
e. Generally, the punishment for libel is more severe than for slander. Defamation is tort as well
as a crime in India.
f. In India both libel and slander are treated as a crime. Section 499 of the Indian Penal Code
recognizes both libel and slander as an offence. However, torts in criminal law are stricter than
in law of tort.

8. Negligence
Negligence means inadvertence or carelessness. Negligence refers to the situation when a person
might be innocent but has failed to act in reasonable manner. Negligence in treatment of
patients is an important example of Tort of Negligence.
Following the ruling of the Supreme Court in the landmark judgement of Indian Medical
Association v. V.P. Shantha & Ors., services rendered by medical practitioners were brought
under the ambit of Section 2(1)(o) of the Consumer Protection Act, 1986 i.e. medical treatment
was to be considered to be a service and accordingly, medical practitioners could be liable for
deficiency of service.
The definition of negligence involves the following constituents:
a. a legal duty to exercise due care;
b. breach of the duty; and
c. consequential damages.

Poonam Verma vs. Ashwin Patel & Ors

The court was of the opinion that Respondent No.1, having practised in Allopathy, without
being qualified in that system, was guilty of Negligence per se and, therefore, the appeal
against him has to be allowed in consonance with the maxim Sic Utere tuo ut alienum
non loedas (a person is held liable at law for the consequences of his negligence)

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.17
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

LIABILITY OF A CORPORATE ENTITY/COMPANY IN TORTS

The companies are exposed to the risk under Law of Torts. However, the companies are not
natural persons therefore, liability has to be fastened after considering the lifting of corporate
veil. In general, the companies are responsible for the wrongs committed by the employees.
The liabilities of the companies are fastened on the basis of principle in legal maxim “Qui
facet alium facet per se” which means He who acts through another, acts through himself.

Union Carbide Corporation vs. Union of India

a. On the night intervening 2nd and 3rd of December 1984 there occurred at Bhopal in the State
of Madhya Pradesh in India the worst and the most tragic industrial disaster known to mankind.
b. There was a massive escape of a night noxious and abnormally dangerous gas called Methyl
Isocyanate.
c. Thousands of persons sustained serious, and permanent injuries.
d. Court upheld the No Fault Liability or Absolute Liability Rule. Court stated – “where an
enterprise is engaged in a hazardous or inherently dangerous activity and harm results to
anyone on account of an accident in the operation of such hazardous or inherently dangerous
activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely
liable to compensate all those who are affected by the accident and such liability is not subject
to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under
the rule in Rylands v. Fletcher”

CONSUMER PROTECTION ACT AND LIABILITIES OF TORTS

Branch Manager, Indigo Airlines and Anr. v. Kalpana Rani Debbarma and ors
1. The Complainants/respondents were the family members and were returning from Kolkata to
Agartala through the Indigo Airlines. Boarding passes were issued to the complainants. The
Airlines left all the complainants at Kolkata Airport without informing them despite all the
Complainants being the Airport premises.
2. A written complaint was lodged at Indigo Office at Kolkata Airport but the office staff as well
as the Airport staff at their counter did not accept the Complaint Application and forcibly

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.18
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

snatched away their boarding passes and further did not pay heed to their request for making
alternate arrangements for their flight to Agartala.
3. The Complainant Approached the District Forum and was awarded with the compensation.
State forum also enhanced the compensation. Aggrieved by the decision, the Indigo Arline’s
filed this Revision Petition contended that the Airport Manager has stated that there were
many announcements at regular intervals and that the Indigo Airlines is not responsible if the
passengers did not report at the gate on time.
4. They held that Indigo Airlines not only forcibly taking the boarding passes from the
Complainants, no effort was made by the Airline to compensate them by arranging for their
travel in the next scheduled flight to Agartala.
5. It is not in dispute that the Complainants were put to lot of mental agony and inconvenience
as they had to stay in a hotel for two days. The NCDRC dismissed the Revision Petitions with
cost of Rs. 20,000/- to be paid to Complainants.

In Bolitho v. City and Hackney Health Authority, the factors which have to be assessed in
medical negligence are:
a. Whether the medical practitioner acted as per a practice accepted by a competent medical
practitioner.
b. If no, if the deviation from the norm can be justified as being reasonable.
It must be noted that the liability of the medical practitioner is three-fold: liability under the
Consumer Protection Act, 1986 for payment of damages; civil liability for tort of negligence
where the provisions of the Consumer Protection Act, 1986 do not apply; or criminal proceedings
under the Indian Penal Code, 1860.
On analysis of the cases and object of the Consumer Protection Act, it can be said that the
complaints under the Consumer Protection are in the nature that may be covered under Law
of Torts in absence of Law relating to Consumer protections.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.19
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

REMEDIES IN TORTS

Remedies in Torts

Judicial Extra Judicial

Remedies Remedies

Damages Self Defence

Injunction Prevention of Trespass

Specific Restitution Re entry on Land

of Property Re caption of Goods

JUDICIAL REMEDIES
Three types of judicial remedies are available to the plaintiff in an action for tort namely:
1. Damages
When a plaintiff’s right is violated by the defendant, the court will grant the plaintiff damages,
which are compensation for such infringement of the right for the loss they have suffered.
Only those damages can be recovered which are directly the result of the act of defendant. It
is based on the legal maxim, In jure non remota causa sed proxima spectator which means law
considers the direct or immediate cause and not the remote one.

2. Injunction
Injunction is an order of the Court redirecting commission, omission or amendments to an act.
It orders a person to do an act, to not to do an act or correct his wrongful act. It is done
entirely upon the discretion of the Court.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.20
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

3. Specific Restitution of Property

This is the third kind of judicial remedy in which a court may direct for in case of any breach
of rights. Restitution is the process of returning property to its rightful owner. A person is
entitled to the restitution of his property when it has been unfairly taken away from him.
Wrongly dispossession of certain property invokes this remedy.

EXTRA JUDICIAL REMEDIES

In certain cases, it is lawful to redress one’s injuries by means of self-help without recourse
to the court. These remedies are:

1. Self Defence
It is lawful for any person to use reasonable forces to protect himself, or any other person
against any unlawful use of force.

2. Prevention of Trespass
An occupier of land or any person with his authority may use reasonable force to prevent
trespassers entering or to eject them but the force should be reasonable for the purpose.

3. Re-entry on Land
A person wrongfully disposed of land may retake possession of land if he can do so in a
peaceful and reasonable manner.

4. Re-caption of Goods
It is neither a crime nor a tort for a person entitled to possession of a thing, to take it either
peacefully or by the use of a reasonable force from one who has wrongly taken it or wrongfully
detained it.

5. Abatement of Nuisance
The occupier of land may lawfully abate (i.e. terminate by his own act), any nuisance injuriously
affecting it. Thus, he may cut overhanging branches as spreading roots from his neighbour’s
trees, but:

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.21
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

a. upon giving notice;

b. by choosing the least mischievous method;
c. avoiding unnecessary damage.

6. Distress Damage Feasant

An occupier may lawfully seize anything which are unlawfully on his land doing damage there
and detain them until compensation is paid for the damage. The right is known as that of
distress damage feasant-to distrain things which are doing damage.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.22
YES Academy for CS & Law Mindset is Everything… CS Executive – JIGL

LIFE IS LIKE A MCQ, SOMETIMES IT’S THE CHOICE THAT CONFUSES YOU, NOT THE
QUESTION ITSELF. LET’S CRACK IT!

Important
Points

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 5.23
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

CHAPTER 6 - LAW RELATING TO CIVIL PROCEDURE

Transactions & Prohibition
AIM AND SCOPE OF CIVIL PROCEDURE CODE, 1908 [C.P.C.]
The Civil Procedure Code consolidates and amends the law relating to the procedure of the
Courts of Civil jurisdiction. 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.
With the current focus on Ease of Doing Business (EoDB) and ‘enforcement of contract’ being
one of the sub parameters for the determination of EoDB rank, judicial delays have been one
of the focus areas of judicial reforms. Keeping this in mind the Government came up with ‘The
Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act,
2015’

SOME IMPORTANT TERMS

Cause of Action
“Cause of action” means every fact that it would be necessary for the plaintiff to prove in
order to support his right to the judgement of the Court, It means every fact which will be
necessary for the plaintiff to prove, in order to support his right to the judgement.

Judgement, Decree and Order

Judgement
“Judgement” means the statement given by the Judge of the grounds of a decree or order.
Thus, a judgement must set out the grounds and reasons for the Judge to have arrived at the
decision.

Decree
“Decree” is defined in Section 2(2) of the Code as:
i. the formal expression of an adjudication which, so far as regards the Court expressing it;
ii. conclusively;
iii. determines the rights of the parties;
iv. with regard to all or any of the matters in controversy;

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.1
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

v. in the suit and may be either preliminary or final.

But decree does not include:

a. any adjudication from which an appeal lies as an appeal from an Order, or
b. any order of dismissal for default.

Essentials of a decree are:

1. There must be formal expression of adjudication.
2. There must be a conclusive determination of the rights of parties.
3. The determination must be with regard to matters in controversy.
4. The adjudication should have been given in the suit.
A decree is preliminary when further proceedings have to be taken before the suit can be
completely disposed of. The preliminary decree is not dependent on the final. On the other
hand, final decree is dependent and subordinate to the preliminary decree, and gives effect to
it. If the preliminary decree is set aside the final decree is automatically superseded.

Decree-holder
“Decree-holder” means any person in whose favour a decree has been passed or an order
capable of execution has been made. Thus, a person who is not a party to the suit but in
whose favour an order capable of execution is passed is a decree-holder.

Judgement-debtor
“Judgement-debtor” means any person against whom a decree has been passed or an order
capable of execution has been made.

Order
“Order” of the Code means the formal expression of any decision of a Civil Court which is not
a decree.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.2
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Appeals from Order

According to Section 104 of the Code, no appeal lies against orders other than what is expressly
provided in the Code or any other law for the time being in force. Under the Code appealable
orders are:
i. an order under Section 35A, i.e., for compensatory costs in respect of false or vexatious claims
within pecuniary jurisdiction of the Court, but only for the limited ground that no order should
have been made, or that such order should have been made for a lesser amount.
ii. an order under Section 91 or Section 92 refusing leave to institute a suit under Section 91
(Public nuisances and other wrongful acts affecting the public) or Section 92 (alleged breach
of trust created for public purposes of a charitable or religious nature).
iii. an order under Section 95, i.e., compensation for obtaining arrest attachment or injunction on
insufficient grounds.
iv. an order under any of the provisions of the Code imposing a fine or directing the arrest or
detention in the civil prison of any person except where such arrest or detention is in execution
of a decree.
No appeal lies from any order passed in appeal under this section.
The Court may, on the application of any party to a suit, pass orders on different applications
and any order which is not the final order in a suit is called an “interlocutory order”. An
interlocutory order does not dispose of the suit but is merely a direction to procedure. It reserves
some questions for further determination.
The main difference between an order and a decree is that in an adjudication which is a decree
appeal lies and second appeal also lies on the grounds mentioned in Section 100 of CPC.
However, no appeal lies from an order unless it is expressly provided under Section 104.
No second appeal in any case lies at all even in case of appealable orders. A decree conclusively
determines the rights and liabilities of the parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary or final but this is not the case in order.

Vidyacharan Shukla vs. Khubchand Baghel and Ors.

Court stated that “a decree is a formal expression of adjudication conclusively determining the rights of
parties with regard to all or any of the controversies in a suit, whereas order is a formal expression of any
decision of a civil court which is not a decree. Judgment is a statement given by the judge of his grounds
in respect of a decree or order.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.3
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

STAY OF SUIT (DOCTRINE OF RES SUB JUDICE)

1. 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) having
jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established
or continued by the Central Government and having like jurisdiction, or before the Supreme
Court.
2. However, the pendency of a suit in a foreign court does not preclude the Courts in India from
trying a suit founded on the same cause of action.
3. To prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in
respect of same matter in issue, Section 10 is enacted. The purpose is also to avoid conflict of
decision.
4. M/s. Wings Pharmaceuticals (P) Ltd. and another v. M/s. Swan Pharmaceuticals
A suit was instituted by the plaintiff company alleging infringement by the defendant company
by using trade name of medicine and selling the same in wrapper and carton of identical design
with same colour combination etc. as that of plaintiff company.
5. A subsequent suit was instituted in different Court by the defendant company against the
plaintiff company with same allegation. The Court held that subsequent suit should be stayed
as simultaneous trial of the suits in different Courts might result in conflicting decisions as
issue involved in two suits was totally identical

Essential conditions for stay of suits:

• 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
• Such 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
If these conditions exist, the later suit should be stayed till the disposal of earlier suit, the
findings of which operate as res judicata on the later suit.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.4
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

RES JUDICATA
1. Section 11 of the Civil Procedure Code deals with the doctrine of Res Judicata. According to
this provision of no Court shall try any suit or issue in which the matter has been directly and
substantially in issue in a former suit (i.e., suit previously decided) either between the same
parties, or between parties under whom they or any of them claim, litigating under the same
title in a Court competent to try such subsequent suit or the suit in which such issue has
been subsequently raised and finally decided by such Court.
2. It states that no one shall be twice vexed for the same cause. The doctrine of res judicata
prevails over the doctrine of lis pendens where there is a conflict between the two.
3. It prevents two different decrees on the same subject.
4. Section 11 says that once res is judicata, it shall not be adjudged again.
5. For the applicability of the principle of res judicata, the following requirements are necessary:
a. The matter directly and substantially in issue in former suit shall also be directly and
substantially in issue in later suit. In the matter of taxation for levy of municipal taxes,
there is no question of res judicata as each year’s assessment is final for that year and
does not govern latter years
b. The former suit has been decided
c. The said issue has been heard and finally decided.
d. Such former suit and the latter are between the same parties or litigation under the same
title
6. In short, this principle applies where an issue which has been raised in a subsequent suit was
directly and substantially in issue in a former suit between the same parties and was heard
and decided finally.
7. A consent or compromise decree is not a decision by Court. It is an acceptance of something
to which the parties had agreed. The Court does not decide anything. The compromise decree
merely has the seal of the Court on the agreement of the parties.
8. As such, the principle of res judicata does not generally apply to a consent or compromise
decree. But when the court on the facts proved comes to a conclusion that the parties intended
that the consent decree should have the effect of deciding the question finally, the principle
of res judicata may apply to it.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.5
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Doctrine of Res Judicata is based on these grounds of public policy

There should be an The parties to a suit The time of Court It is a rule of
end to litigation. should not be should not be wasted Convenience and not
harassed to agitate over the matters a rule of absolute
the same issues or that ought to have justice.
matters already been and should
decided between have been decided in
them the former suit
between the
parties

Bar to further suit

Section 12 puts a bar to every suit where a plaintiff is precluded by rules from instituting a
further suit in respect of any particular cause of action. Section comes into force only when a
plaintiff is precluded by rules.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.6
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

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. The limit of this authority is imposed by charter, statute or a
commission. If no such limit is imposed or defined, the jurisdiction is said to be unlimited.

A limitation on jurisdiction of a Civil Court may be of four kinds.

Jurisdiction over the Place of suing or Jurisdiction over Pecuniary
subject matter territorial persons jurisdiction
depending on
jurisdiction
pecuniary value of

the suit

The jurisdiction to A territorial limit of All persons of Section 6 of the

try certain matters jurisdiction for each whatever nationality Code of Civil
by certain Court is court is fixed by the are subject to the Procedure, 1908 deals
limited by statute; Government. Thus, it jurisdiction of the with Pecuniary
Example: a small can try matters Civil Courts of the jurisdiction and lays
cause court can try falling within the Country except a down that save in so
suits for money due territorial limits of foreign State, its far as is otherwise
under a promissory its jurisdiction. ruler or its expressly provided
note or a suit for representative except Courts shall only
price of work done. with the consent of have jurisdiction over
Central Government. suits the amount or
value of which does
not exceed the
pecuniary limits of
any of its ordinary
jurisdiction. There is
no limit on pecuniary
jurisdiction of High
Courts and District
Courts.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.7
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Jurisdiction may be further classified into following categories depending upon their
powers:
Original Jurisdiction Appellate Jurisdiction Criminal and appellate
Jurisdiction
A Court tries and decides A Court hears appeals The Supreme Court, the
suits filed before it. against decisions or decrees High Courts and the District
passed by sub-ordinate Courts have both original
Courts. and appellate jurisdiction in
various matters.

Courts to try all civil suits unless barred:

a. Section 9 of Civil Procedure Code states that the Courts shall have jurisdiction to try all suits
of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred.
b. Every person has an inherent right to bring a suit of a civil nature. Civil Court has jurisdiction
to decide the question of its jurisdiction although as a result of the enquiry it may be found
that it has no jurisdiction over the matter.
c. Jurisdiction depends not on the truth or falsehood of facts, but upon their nature. Jurisdiction
is determinable at the commencement not at the conclusion of the inquiry.
d. A suit is expressly barred if a legislation expressly says so and it is impliedly barred if a statute
creates new right or liability and prescribes a particular tribunal or forum for its assertion.
e. When a right is created by a statute and a special tribunal or forum is provided for its assertion
and enforcement, the ordinary Civil Court would have no jurisdiction to entertain such disputes.

In A.R. Antulay vs. R.S. Nayak and Ors.

The issue was whether a case triable by Special Judge as provided under Criminal Law
Amendment Act, 1952 could be transferred to High Court or not. It was held that Court by its
directions cannot confer jurisdiction to High Court of Bombay to try any case by itself for which
it does not possess such jurisdiction.
The power to create or enlarge jurisdiction is legislative in character, so also the power to confer
a right of appeal or to take away a right of appeal. Parliament alone can do it by law and no
Court, whether superior or inferior or both combined can enlarge the jurisdiction of a Court or
divest a person of his rights of revision and appeal.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.8
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

PLACE OF SUING (TERRITORIAL)

Section 15 lays down that every suit shall be instituted in the Court of the lowest grade
competent to try it.
According to Section 16, subject to the pecuniary or other limitations prescribed by any law,
the following suits shall be instituted in the Court within the local limits of whose jurisdiction
the property is situated:
a. for recovery of immovable property with or without rent or profits;
b. for partition of immovable property;
c. for foreclosure of sale or redemption in the case of a mortgage or charge upon immovable
property;
d. for the determination of any other right to or interest in immovable property;
e. for compensation for wrong to immovable property;
f. for the recovery of movable property actually distraint or attachment.

Where immovable property is situated within the jurisdiction of different Courts:

The suit may be instituted in any Court within the local limits of whose jurisdiction the
property is situated provided the value of the entire claim is cognizable by such Court.

Where local limits of jurisdiction of Courts are uncertain:

Then any of the said Courts may proceed to entertain the suit after having recorded a statement
to the effect that it is satisfied that there is ground for such alleged uncertainty.

Where wrong done to the person or to movable property:

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.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.9
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Other suits:
Every suit shall be instituted in a Court within local limits of whose jurisdiction the defendant,
or each of the defendants (where there are more than one defendant) actually and voluntarily
resides or carries on business or personally works for gain or where such defendants actually
and voluntarily reside or carries on business or personally works for gain, provided either the
leave of the Court is obtained or the defendant(s) who do not reside or carry on business or
personally work for gain.

SET-OFF, COUNTER-CLAIM AND EQUITABLE SET-OFF

Set-off
i. Set-off which is a reciprocal acquittal of debts between the plaintiff and defendant.
It has the effect of extinguishing the plaintiff’s claim to the extent of the amount claimed by
the defendant as a counter claim.
ii. where in a suit for the recovery of money the defendant claims to set off against the
plaintiff’s demand any ascertained sum of money legally recoverable by him from the plaintiff
not exceeding the pecuniary jurisdiction of the Court and where both parties fill the same
character as in the plaintiff’s suit, the defendant may, at the first hearing of the suit, but
not afterwards unless permitted by the Court, present a written statement containing the
particulars of the debt sought to be set-off.

Effect of Set-off
The written statement shall have the same effect as a plaint in a cross-suit so as to enable
the Court to pronounce a final judgement in respect both of the original claim and of the set-
off, but this shall not affect the lien, upon the amount decreed, of any pleader in respect of
the cost’s payable to him under the decree.

Counter-claim
A defendant in a suit may, in addition to his right of pleading a set-off, set up by way of
counterclaim against the claim of the plaintiff, any right or claim in respect of a cause of
action accruing to the defendant against the plaintiff either before or after the filing of the
suit but before the defendant has delivered his defence or before the time limited for delivering

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.10
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

his defence has expired, whether such counter-claim is in the nature of claim for damages or
not. Such counter-claim must be within the pecuniary jurisdiction of the Court.

Equitable set-off
Sometimes, the defendant is permitted to claim set-off in respect of an unascertained sum of
money where the claim arises out of the same transaction, or transactions which can be
considered as one transaction, or where there is knowledge on both sides of an existing debt
due to one party and a credit by the other party found on and trusting to such debt as a
means of discharging it. Generally, the suits emerge from cross-demands in the same
transaction and this doctrine is intended to save the defendant from having to take recourse
to a separate cross-suit. In India distinction between legal and equitable set-off is recognised.

Jitendra Kumar Khan and Ors. vs. The Peerless General Finance and Investment Company
Limited and Ors.
The court stated that equitable set-off is different from legal set-off. Equitable set-off is based
on principle of justice, equity and good conscience. It was stated:
“that equitable set-off is different than the legal set-off; that it is independent of the provisions
of the Code of Civil Procedure; that the mutual debts and credits or cross-demands must have
arisen out of the same transaction or to be connected in the nature and circumstances; that
such a plea is raised not as a matter of right; and that it is the discretion of the court to
entertain and allow such a plea or not.”

TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

Temporary injunction
The Court may grant temporary injunction to restrain any such act (as set out below) or make
such other order for the purpose of staying and preventing the wasting, damaging, alienation
or sale or removal or disposition of the property or dispossession of the plaintiff, or otherwise
causing injury to the plaintiff in relation to any property in dispute in the suit; where it is
proved by affidavit or otherwise:
a. that any property in dispute in a suit is in danger of being wasted, damaged or alienated by
any party to the suit, or wrongfully sold in execution of a decree, or
b. the defendant threatens, or intends to remove or dispose of his property with a view to
defrauding his creditors, or

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.11
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

c. that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in the suit.
It would be necessary for the plaintiff to satisfy the Court that substantial and irreparable
harm or injury would be suffered by him if such temporary injunction is not granted and that
such loss or damage or harm cannot be compensated by damages.

INTERLOCUTORY ORDERS
The Court may, on the application of any party to a suit order the sale, by any person named
in such order, and in such manner and on such terms as it thinks fit, of any movable property,
being the subject-matter of such suit, or attached before judgement in such suit, which is
subject to speedy and natural decay, or which for any other just and sufficient cause it may
be desirable to be sold at once.

Dalpat Kumar and Ors. vs. Prahlad Singh

Court held that three main requirements are to be satisfied while granting temporary injunction-

1. There should be Prima facie case

2. If injunction not granted, it would lead to irreparable loss and,
3. Balance of convenience

DETENTION, PRESERVATION, INSPECTION ETC. OF SUBJECT-MATTER OF SUIT

The Court may, on application of any party to a suit, and on such terms as it thinks fit:
a. make an order for the detention, preservation or inspection of any property which is the subject-
matter of such suit or as to which any question may arise therein,
b. authorise any person to enter upon or into any land or building in the possession of any other
party to such suit, and
c. authorise any samples to be taken.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.12
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Deposit of money etc. in the Court

Where the subject-matter of a suit is money or some other thing capable of delivery, and any
party thereto admits that he holds such money or other thing as a trustee for another party,
or that it belongs or is due to another party, the Court may order the same to be deposited
in Court or delivered to such last-named party, with or without security subject to further
direction of the Court.

INSTITUTION OF SUIT
The main essentials of the suit are:

The subject
The opposing The cause The relief(s)
matter of
parties of action claimed
the suit

a. Every suit shall be instituted in the Court of the lowest grade competent to try it, as to
be determined with regard to the subject matter being either immovable or movable
property or to the place of abode or of business or the defendant.
b. A suit for a tort may be brought either where the wrong was committed or where the
defendant resides or carries on business.
c. Where a plaintiff omits to sue in respect of or intentionally relinquishes any portion of his
claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

Misjoinder of Parties: Where more than one person(s) 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’.
To avoid such misjoinder, two factors are essential:
i. the right to relief must arise out of the same act or transaction brought by the plaintiffs or
against the defendants,
ii. there is a common question of law or fact.
The Code does not require that all the questions of law or of fact should be common to all
the parties. It is sufficient that if there is one common question.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.13
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

“Cause of action” means every fact which would be necessary for the plaintiff to prove in
order to support his right to the judgement of the Court. Thus, cause of action is a bundle of
essential facts which the plaintiff has to prove in order to sustain his action.
Every breach of contract gives rise to a cause of action and a suit may be instituted to
secure the proper relief in the place:
i. where the contract was made, or
ii. where the breach has occurred, or
iii. the place where money is payable.

Misjoinder of Causes of Action: If the plaintiffs are not jointly interested in all the causes
of action there is misjoinder of causes of action.
All objections regarding misjoinder of parties or of cause of action should be taken at the
first hearing of the suit and before the settlement of causes unless the ground for objections
had subsequently arisen.

Example: There is a property dispute between X and Y over a piece of land which is in possession
of Y.
X filled a suit against Y and also made Z (a reputed businessman) the brother of Y as party to
the suit. This is misjoinder of parties.
X filled a suit against Y not for the property in issue but referred to a property that was never in
possession of Y. This is misjoinder of cause of action.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.14
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

IMPORTANT STAGES IN PROCEEDINGS OF A SUIT

• Presentation of Plaint- Every suit shall be instituted by presentation of plaint.

1.

• Service of Summons- When a suit has duly been instituted a summons may be issued to
2. the defendant by the court.

• Filing of Written Statement, set off and counter claims- The defendant shall, within 30
days from the date of service of summons on him, present a written statement to his
3. defence. This is subject to the proviso to said rule, which may allow to file within 120 days
on payment of costs.

4. • Appearances of Parties- The parties should appear on the day fixed by the summons.

5. • Examination of Parties- The court examines the parties to the court.

• Framing of Issues- The court frames the issues.

6.

• Hearings- The court hear the parties

7.

• Judgement- The court pronounces the decree according to Order 20.

8.

DELIVERY OF SUMMONS BY COURT

1. 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 summon.
NOTE: No summons is to be issued when the defendant has appeared at the presentation of
plaint and admitted the plaintiff’s claim.
2. Every summons must be signed by the judge or an authorised officer of the Court and sealed
with the seal of the Court and be accompanied by a copy of the plaint.
3. If the requirement of personal appearance of the defendant or plaintiff is felt by the Court,
then it has to make an order for such appearance.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.15
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

4. 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.
5. Order 5, Rule 9 provides that:
a. Where the defendant resides within the jurisdiction of the Court in which the suit is
instituted, the summons shall, be delivered or sent either to the proper officer, who may be
an officer of a Court to be served by him or to such courier services as are approved by the
Court.
b. The services of summons may be made by delivering a copy thereof by registered post
acknowledgement due, addressed to the defendant or by speed post. Provided that the service
of summons under this sub-rule shall be made at the expenses of the plaintiff.
c. Where the defendant resides outside the jurisdiction of the Court in which the suit is
instituted, and the Court directs that the service of summons on that defendant may be
made by such mode of service as may be prescribed.
d. When an acknowledgement or any other receipt purporting to be signed by the defendant
received by the Court or postal article containing the summons is received back by the Court
with an endorsement purporting to have been made by a postal employee or by any person
authorised by the courier service to the effect that the defendant or his agent had refused
to take delivery of the postal article containing the summons or had refused to accept the
summons by any other means when tendered or transmitted to him, the Court issuing the
summons shall declare that the summons had been duly served on the defendant;
e. Where the Court is satisfied that there is reason to believe that the person summoned is
keeping out of the way for the purpose of avoiding service or that for any other reason the
summons cannot be served in the ordinary way the Court shall order the service of the
summons to be served by affixing a copy thereof in some conspicuous place in the Court
house and also upon some conspicuous part of the house in which the person summoned is
known to have last resided or carried on business or personally worked for gain,

NOTE: The above provisions shall apply also to summons to witnesses

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.16
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

f. In the case of a defendant who is a public officer, servant of railways or local authority, the
Court may, if more convenient, send the summons to the head of the office in which he is
employed. In the case of a suit being instituted against a corporation, the summons may be
served:
a. on the secretary or on any director, or other principal officer of the corporation or
b. by leaving it or sending it by post addressed to the corporation at the registered
office or if there is no office, then at the place where the corporation carries on
business.

DEFENCE
1. The defendant has to file a written statement of his defence within a period of thirty days
from the date of service of summons. If he fails to file the written statement within the
stipulated time period, he is allowed to file the same on such other day as may be specified
by the Court for reasons to be recorded in writing. The time period for filing the written
statement should not exceed 90 days.
2. In the case of disputes covered under the Commercial Courts Act, 2015 if the defendant fails
to file the written statement within a period of 30 days, he shall be allowed to file the
written statement on such other day, but within 120 days from the date of service of
summons.
3. Where the defendant bases his defence upon a document or relies upon any document in his
possession in support of his defence, he has to enter such document in a list and produce it
in Court while presenting his written statement.
4. Any document which ought to be produced in the Court but is not so produced, such
document shall not be received in evidence at the time of hearing of the suit without the
leave of the Court.

Appearance of parties and consequence of non-appearance

1. 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.
2. If the defendant is absent in spite of service of summons and the plaintiff appears, the
Court may proceed ex-parte.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.17
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

3. In case the defendant is not served with summons, the Court shall order a second summon
to be issued. If the summons is served on the defendant without sufficient time to appear,
the Court may postpone the hearing to a further date.
4. Where the hearing of the suit is adjourned exparte and the defendant appears at or before
such hearing and assigns a good cause for his previous nonappearance, the defendant may be
heard in answer to the suit on such terms as to costs or otherwise.
5. The defendant is not precluded from taking part in the proceedings even though he may not
be allowed to file a written statement. If the plaintiff is absent and the defendant is
present at the hearing of the suit, the Court shall make an order for the dismissal of the
suit, unless the defendant admits the claim of the plaintiff or a part thereof in which case
the Court shall pass a decree in favour of the plaintiff.
6. In any case in which a decree is passed ex-parte against a defendant he may apply for
setting aside the decree on the ground that the summons was not duly served on him or
that he was prevented by any sufficient cause from appearing when the suit was called on
for hearing and the Court shall set aside the decree.

A defendant has four remedies available if an ex-parte decree is passed against him:
a. He may file an appeal against the ex-parte decree.
b. He may file an application for review of the judgement.
c. He may apply for setting aside the ex-parte decree.
d. A suit can also be filed to set aside an ex-parte decree obtained by fraud but no suit shall
lie for nonservice of summons.

Discovery and interrogatories and production of documents

“Discovery” means finding out material facts and documents from an adversary in order to
know and ascertain the nature of the case or in order to support his own case or in order to
narrow the points at issue or to avoid proving admitted facts.
Discovery may be of two kinds
a. by interrogatories
b. by documents.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.18
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

The objects of discovery are to:

a. ascertain the nature of the case of the adversary or material facts for the adversary’s case.
b. obtain admissions of the adversary for supporting the party’s own case or indirectly by
impeaching or destroying the adversary’s case.
c. narrow the points at issue.
d. avoid expense and effort in proving admitted facts.

Discovery by interrogations
Any party to a suit, by leave of the Court, may deliver interrogatories in writing for the
examination of the opposite parties. But interrogatories will not be allowed for the following
purposes:
i. for obtaining discovery of facts which relates exclusively to the evidence of the adversary’s
case or title.
ii. to interrogate any confidential communications between the adversary and his counsel.
iii. to obtain disclosures injurious to public interests.
iv. Interrogatories that are of a ‘fishing’ nature, i.e., which do not relate to some definite and
existing state of circumstances but are resorted to in a speculative manner to discover
something which may help a party making the interrogatories.

Discovery by documents
1. 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.
2. Any party may apply to the Court for an order directing any other party to the suit to make
discovery on oath the documents which are or which have been in his possession or
powers relating to any matter in question.
3. The Court may on hearing the application either refuse or adjourn it, if it is satisfied that
such discovery is not necessary at all or not necessary at the stage or if it thinks fit in its
discretion, it may make order for discovery limited to certain classes of documents.
4. Every party to a suit may give notice to the other party at or before the settlement of
issues to produce for his inspection any document referred to in the pleadings or affidavits of
the other party.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.19
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

5. If the other party refuses to comply with this order he shall not be allowed to put any such
document in evidence, unless he satisfies the Court that such document relates only to his
own title, he being a defendant to the suit or any other ground accepted by the Court.
6. Documents not referred to in the pleadings or affidavits may be inspected by a party if the
Court allows.
7. A party may refuse to produce the document for inspection on the following grounds:
i. where it discloses a party’s evidence;
ii. when it enjoys a legal professional privilege;
iii. when it is injurious to public interest;
iv. denial of possession of document.

Admission by parties
“Admission” means that one party accepts the case of the other party in whole or in part to
be true. Admission may be either in pleadings or by answers to interrogatories, by agreement
of the parties or admission by notice.

Issues
Issues are to be framed on material proportions of fact or law which are to be gathered from
the following:
i. Allegations made in the plaint and written statement,
ii. Allegations made by the parties or persons present on their behalf or their pleaders on oath,
iii. Allegations in answer to interrogatories,
iv. Contents of documents produced by the parties,
v. Statements made by parties or their representatives when examined,
vi. From examination of a witness or any documents ordered to be produced.

Hearing of the suit

The plaintiff has the right to begin unless the defendant admits the fact alleged by the
plaintiff and contends that either in point of law or on some additional facts alleged by the
defendant, the plaintiff is not entitled to any part of the relief sought by him and in such a
case the defendant has a right to begin.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.20
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Affidavit
An affidavit is a written statement of the deponent on oath duly affirmed before any Court
or Magistrate. An affidavit can be used in the following cases:
i. The Court may at any time of its own motion or on application of any party order that any
fact may be proved by affidavits.
ii. The Court may at any time order that the affidavit of any witness may be read at the
hearing unless either party bona fide desires to cross-examine him and he can be produced.
iii. upon application by a party, evidence of a witness may be given on affidavit.

Judgement
i. 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 or their pleaders.
ii. The proper object of a judgement is to support by the most cogent reasons that suggest
themselves final conclusion at which the judge has conscientiously arrived.
iii. If the judgement is not pronounced at once every endeavour shall be made by the Court to
pronounce the judgement within a period of 30 days from the date on which the hearing of
the case was concluded.
iv. However, if it is not practicable to do so on the ground of exceptional and extra ordinary
circumstances of the case the Court must fix a future day which should not be a day beyond
sixty days for the pronouncement of the judgement.
v. In Kanhaiyalal v. Anup Kumar, where the High Court pronounced the judgment after two
years and six months, the judgment was set aside by the Supreme Court observing that it
would not be proper for a Court to sit tied over the matter for such a long period.

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. It should contain the:
i. number of the suit(s),
ii. names and descriptions of the parties and their registered addresses,

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.21
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

iii. particulars of the claim,

iv. relief granted or other determination of the suit,
v. amount of cost incurred and by whom is to be paid.

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
Right of appeal is not a natural or inherent right attached to litigation. Such a right is given
by the statute. There are four kinds of appeals provided under the Civil Procedure Code:

Appeals from original decrees

These appeals may be preferred in the Court superior to the Court passing the decree. Where
the decree has been passed with the consent of parties, no appeal lies. The appeal from
original decree lies on a question of law. No appeal lies in any suit of the nature cognizable
by Courts of small causes when the amount or value of the subject matter of the original
suit does not exceed ten thousand rupees.

Second appeal
i. 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.
ii. Under this Section, an appeal may lie from an appellate decree passed ex parte.
iii. If the High Court is satisfied that a substantial question of law is involved, such question
shall be formulated by it and the appeal is to be heard on the question so formulated.
iv. The respondent is allowed to argue that the case does not involve such question. The High
Court is empowered to hear the appeal on any other substantial question of law not
formulated by it if it is satisfied that the case involves such question.
v. As a general rule the second appeal is on questions of law alone.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.22
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Appeal from orders

Already covered above

Appeals to the Supreme Court

These appeals would lie in the following cases:
i. 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,
ii. from any judgement, decree or final order passed on appeal by a High Court or by any other
court of final appellate jurisdiction,
iii. from any judgement, decree or final orders passed by a High Court in exercise of original civil
jurisdiction.

The general rule is that the parties to an appeal shall not be entitled to produce additional
evidence whether oral or documentary. But the appellate court has a discretion to allow
additional evidence in the following circumstances:
a. When the lower court has refused to admit evidence which ought to have been admitted.
b. When the appellate court requires any document to be produced or any witness to be
examined to enable it to pronounce judgement.
c. For any other substantial cause.
But in all such cases the appellate court shall record its reasons for admission of additional
evidence.

REFERENCE, REVIEW AND REVISION

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.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.23
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

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 on any of the
grounds namely:
i. 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
ii. on account of some mistake or error apparent on the face of the record, or
iii. for any other sufficient reason, and the Court may make such order thereon as it thinks fit

Revision
Section 115 deals with 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 lie
thereto, and if such subordinate Court appears:
i. to have exercised a jurisdiction not vested in it by law, or
ii. to have failed to exercise a jurisdiction so vested, or
iii. to have acted in the exercise of its jurisdiction illegally or with material irregularity, The High
Court may make such order as it thinks fit.
Provided that the High Court shall not vary or reverse any order made or any order deciding
an issue in the course of a suit or proceeding except where the order, if it had been made in
favour of the party applying for revision would have finally disposed off the suit or other
proceedings. The High Court shall not vary or reverse any decree or order against which an
appeal lies either to the High Court or any Court subordinate thereto.

SUITS BY OR AGAINST MINORS AND LUNATICS

i. A minor is a person:
a. who has not completed the age of 18 years and
b. for whose person or property, a guardian has been appointed by a Court, or whose property is
under a Court of Wards, the age of majority is completed at the age of 21 years.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.24
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

ii. A 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. However, the interest of such person is not adverse to that of the
minor.
iii. 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.
iv. Where the defendant is a minor, the Court, on being satisfied of the fact of his minority,
shall appoint a proper person to be guardian for the suit for such minor.
v. A person appointed as guardian for the suit for a minor shall, unless his appointment is
terminated by retirement, removal or death, continues as such throughout all proceeding
arising out of the suit including proceedings in any appellate or revisional court and any
proceedings in the execution of a decree

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. If he elects to abandon the suit or application, he shall, if a sole
plaintiff or sole applicant apply for an order to dismiss the suit on repayment of the costs
incurred by
the defendant or opposite party

Suits by or against persons of unsound mind

All the provisions, applicable to minors shall be applicable to a person of unsound mind or
lunatics. If a person before or during the pendency of the suit are found to be of unsound
mind. It shall also be applicable to persons who, though not so adjudged, are found by the
Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their
interest when suing or being sued.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.25
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Case Law
In Ram Chandra Arya vs. Man Singh and Ors.
The Court held that a decree passed against a minor or lunatic without appointed legal
guardian is void and not voidable.

SUMMARY PROCEEDINGS/PROCEDURE
1. Navinchandra Babulal Bhavsar vs Bachubhai Dhanabhai Shah, the Gujarat High Court has
observed that the relevant provisions prima facie show that the object of the summary
procedure is that in a large commercial town certain type of litigation concerning the
commercial community should be expeditiously handled and brought to an end, including the
realisation of the decretal amount, if a decree is passed.
2. Order 37 provides for a summary procedure in respect of certain suits. A procedure by way of
summary suit applies to suits upon bill of exchange, hundis or promissory notes, or to suits in
which the plaintiff seeks only to recover a debt or liquidated demand in money payable by
the defendant, with or without interest, arising:
i. on a written contract; or
ii. on an enactment, where the sum sought to be recovered is a fixed sum of money or in the
nature of a debt other than a penalty; or
iii. on a guarantee, where the claim against the principal is in respect of a debt or liquidated
demand only.

The rules for summary procedure are applicable to the following Courts:
1. High Courts, City Civil Courts and Small Courts
2. Other Courts: In such Courts, the High Courts may restrict the operation of Order 37 by
issuing a notification in the Official Gazette.
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.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.26
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Institution of summary suits

Such suit may be instituted by presenting a plaint containing the following essentials:
1. A specific averment to the effect that the suit is filed under this order;
2. That no relief which does not fall within the ambit of this rule has been claimed;

Leave to defend
The defendant is not entitled to defend the suit unless he enters an appearance within 10
days from the service of summons. Such leave to defend may be granted unconditional or
upon such terms as the Court or the Judge may think fit. However, such leave shall not be
granted where:
1. The Court is satisfied that the facts disclosed by the defendant do not indicate that he has
a substantial defence or that the defences are frivolous and
2. The part of the amount claimed by the plaintiff and admitted by the defendant to be due
from him is deposited by him in the Court.
At the hearing of such summons for judgement, the plaintiff shall be entitled to judgement
provided the defendant has not applied for leave to defend or if such application has been
made and is refused or where the defendant is permitted to defend but he fails to give the
required security within the prescribed time or to carry out such other precautions as may
have been directed by the Court. 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.

Case Law
B.L. Kashyap and Sons Ltd. vs. JMS Steels and Power Corporation and Ors.
Supreme Court held that leave to defend should only be granted in exceptional cases. The leave
to defend shall be denied only on the grounds that there is no fair or reasonable defence. It
was stated that:
“Application seeking leave to defend, it would not be a correct approach to proceed as if
denying the leave is the Rule or that the leave to defend is to be granted only in exceptional
cases or only in cases where the defence would appear to be a meritorious one. Even in the
case of raising of triable issues, with the Defendant indicating his having a fair or reasonable
defence, he is ordinarily entitled to unconditional leave to defend unless there be any strong
reason to deny the leave”

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.27
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Summary Judgment
i. Order 13A of the The Commercial Courts Act, 2015 provides that disputes which are
recognized as commercial dispute under the Act, can be disposed off by the commercial court
established under the Act without a full-fledged trial.
ii. The amendment is on similar lines to summary suits provided in the CPC with the primary
difference that application for summary judgment can be in respect of any relief in a
commercial dispute while summary suits relate to such relief relating to liquidated demand or
fixed sum of debt.
iii. The application for summary judgment can be made by either party after the service of
summons to the defendant and before the framing of issues. Upon consideration and
satisfaction of the Court, a summary judgment may be given that
a. the plaintiff/defendant has no real prospect of succeeding on the claim/defence, as the case
may be; and
b. there is no other compelling reason as to why the claim should not be disposed of before the
recording of oral evidence.

SAVING OF INHERENT POWERS OF COURT.

Section 151 of the Civil Procedure Code says ‘Nothing in this Code shall be deemed to limit
or otherwise affect the inherent power of the Court to make such orders as may be
necessary for the ends of justice or to prevent abuse of the process of the Court.’
Any situation that is not covered under the Code can be brought under this Section. The
scope of Section 151 CPC has been explained by the Supreme Court in the case K.K.
Velusamy v. N. Palanisamy as follows:
a. Section 151 CPC is not a substantive provision which creates or confers any power or
jurisdiction on courts. It merely recognises the discretionary power inherent in every court as
a necessary for rendering justice, to do what is “right” and undo what is “wrong”, that is,
to do all things necessary to secure the ends of justice and prevent abuse of its process.
b. Section 151 recognises and confirms that if the Code does not expressly or impliedly cover
any particular procedural aspect, the inherent power can be used to deal with such situation
or aspect, if the ends of justice warrant it. The breadth of such power is coextensive with
the need to exercise such power on the facts and circumstances.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.28
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

c. A court does not have the power to do what is prohibited by law or the Code, by allegedly
exercising its inherent powers. If the Code contains provisions dealing with a particular
subject or matter, and those provisions expressly or implicitly exhaust the scope of the court's
power or jurisdiction that may be exercised with respect to that matter, the inherent power
cannot be invoked. In other words, the court cannot make use of the special provisions of
article 151 of the Code, when the remedy or the procedure is provided for in the Code.
d. The inherent powers of the court being complementary to the powers specifically conferred, a
court is free to exercise them for the purposes mentioned in Section 151 of the Code when
the matter is not covered by any specific provision in the Code.
e. While exercising the inherent power, the court will be doubly cautious, as there is no
legislative guidance to deal with the procedural situation and the exercise of power depends
upon the discretion and wisdom of the court, and in the facts and circumstances of the
case.
f. The power under Section 151 will have to be used with care and only where it is absolutely
necessary, when there is no provision in the Code governing the matter, when the bona fides
of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to
prevent abuse of process of court.

COMMERCIAL COURTS ACT, 2015

Introduction
i. The Government of India introduced the ‘The Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts Act, 2015’ (Commercial Courts Act, 2015) to
reduce the burden on judiciary with respect to commercial disputes.
ii. Its main emphasis is on Commercial disputes which are special in nature since they affect
the economy of a nation, directly or indirectly.
iii. To expedite the process of disposal of cases of large economic value or commercial cases, the
Commercial Courts Act, 2015 (the Act) was introduced. The Commercial Courts Act, 2015
came into force on 23rd October, 2015.
iv. It enables speedy redressal of cases holding large economic value.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.29
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Commercial Courts
The State Government may with the consultation of respective High Court constitute the
constitute Commercial Courts at District level, for the purpose of exercising the jurisdiction
and powers conferred on those Courts under this Act.
State Government, after consultation with the High Court may:
1. specify pecuniary value which shall not be less than three lakh rupees or such higher value.
2. extend, alter, and reduce the jurisdiction of such court within local limits.
3. appoint one or more persons having experience in dealing with commercial disputes to be the
Judge or Judges of such Courts.

Jurisdiction
1. The Commercial Court shall have jurisdiction to try all suits and applications relating to a
commercial dispute of a Specified Value arising out of the entire territory of the State over
which it has been vested territorial jurisdiction by State Government with the assistance of
concerned High Court.
2. All suits and applications relating to commercial disputes of a Specified Value filed in a High
Court having ordinary original civil jurisdiction shall be heard and disposed of by the
Commercial Division of that High Court.
3. According to Section 10 of the Act, in case of matters of international commercial arbitration
pertaining to Arbitration and Conciliation Act, 1996 the matters shall be heard and disposed
of by the Commercial Division where such Commercial Division has been constituted in such
High Court.
4. In matters of arbitration other than international commercial arbitration under Arbitration
and Conciliation Act, 1996 that have been filed on the original side of the High Court,
matters shall be heard and disposed of by the Commercial Division where such Commercial
Division has been constituted in such High Court.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.30
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

DETERMINATION OF SPECIFIED VALUE

The Specified Value of the subject-matter of the commercial dispute in a suit, appeal or
application shall be determined by:
a. In case of recovery of money – the value should include interest accrued so far,
upto the date of filing of application or suit.
b. In case of Movable Property or right in it – the value shall be computed taking into
account market value of the movable property as on the date of filing of the suit or
application.
c. In case of immovable Property or right in it - the value shall be computed taking into
account market value of the immovable property as on the date of filing of the suit or
application.
d. In case of other intangible right - the value shall be computed taking into account
estimated market value of such right by plaintiff as on the date of filing of the suit or
application.

PRE-INSTITUTION MEDIATION AND SETTLEMENT

The very purpose of this Act was to resolve the commercial disputes without bringing them
to the court of law through mediation. Prior to approaching a commercial court for dispute
commercial in nature, the Act requires that parties attempt to settle their issues through
mediation.

Time Period
The process of pre-litigation mediation shall be completed within a period of three months
from the date of application made. It can be extended for a further period of two months
with the consent of the parties.

Award/Settlement
The award or settlement of pre-litigation mediation shall be in writing and signed by the
parties to the dispute and the mediator. The award shall have the same status and effect as
of an arbitral award.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.31
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

APPEALS
Any person aggrieved by the judgment or order of a Commercial Court shall within sixty days
of such judgment may file an appeal:
• If he is aggrieved by the judgment of Commercial court below District Judge, he may
appeal to the Commercial Appellate Court.
• If he is aggrieved by the judgment of Commercial court at District Judge or Commercial
Division of a High Court, he may appeal to the Commercial Appellate Division of that High
Court
All the appeals filed shall be disposed of within a period of six month from the date of
filing.

Case Laws
Daimler Financial Services India Pvt. Limited vs. Vikash Kumar and Ors.
The petitioner is a non-banking finance company. The opposite parties obtained loan
which they failed to repay and the matter was then referred to sole arbitrator. On being
dissatisfied with the arbitral award they approached to Commercial Court, Dhanbad. The
Commercial Court dismissed the petition on grounds of having no pecuniary jurisdiction.
The court stated,
“The learned Court below observed that the said Court below is at present having
pecuniary jurisdiction of one crore rupees or such higher value as may be notified by the
Central Government as there is no notification of the State in compliance of Section
3(1-A) of the Commercial Courts Act, 2015 as amended by the amendment Act of 28
of 2018, and came to a conclusion that the Court below has no jurisdiction to decide the
execution petition and dismissed the same for being non-maintainable.”

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.32
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

LIFE IS LIKE A MCQ, SOMETIMES IT’S THE CHOICE THAT CONFUSES YOU, NOT THE
QUESTION ITSELF. LET’S CRACK IT!

Important
Points

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.33
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 6.34
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

CHAPTER 7 - LAWS RELATING TO CRIME AND PROCEDURE

its Procedure
Laws relating to Crime and
REGULATORY FRAMEWORK
• Indian Penal Code, 1860
its Procedure
• The Code of Criminal Procedure, 1973

INTRODUCTION
Crime is a social phenomenon. It is a wrong committed by an individual in a society. Wrong
may be ethical or legal. Wrong should be legal wrong for coming into the definition.
The security of persons and property which is essential function for a State which is achieved
through the instrumentality of criminal law. The concept of crime changes from time to time
and as per the society. For determination of crime there is no fixed rule. Crime is what the
law says it is.

CRIMINAL OFFENCE VS. CIVIL WRONG

The difference between a criminal offence and a civil wrong is that while the former is
considered a wrong against the society because of their grave nature, a civil wrong is a wrong
done to an individual. It is believed that serious crimes threaten the very existence of an orderly
society, and therefore, if such a crime is committed, it is committed against the whole society.
In India, the base of the crime and punitive provision has been laid down in Indian Penal Code,
1860.

INDIAN PENAL CODE

The Indian Penal Code (IPC) is a colonial legislation which was retained as the main penal
law of the country even after India became independent in 1947. The Indian Penal Code was
passed in the year 1860 but it came into force on 1st January, 1862, and it applies to the
whole of India.
The Indian Penal Code, 1860 is a substantive law of crimes. It defines acts which constitute
an offence and lays down punishment for the same. The procedural law through which
the IPC is implemented is the Criminal Procedure Code, 1973. IPC consists of 23 chapters and
511 sections. It has two parts - General Principles and Defences & Specific Offences.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.1
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

CODE OF CRIMINAL PROCEDURE

a. 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.
b. Company Secretaries and the secretarial profession would have relatively less to do with the
Code of Criminal Procedure than with other procedural laws, except for safeguarding against
incurring of liability for criminal offences by Directors, Secretary, Manager or other Principal
Officer under different corporate and industrial laws.
c. Nevertheless, it is necessary that company secretaries and other secretarial staff should be
familiar with some of the relevant features of the Criminal Procedure Code.
d. It is an Act to consolidate and amend the law relating to the procedure to be followed in
apprehending the criminals, investigating the criminal cases and their trial before the Criminal
Courts.
e. It is an adjective law but also contains provisions of substantive nature.
Its object is to provide a machinery for determining the guilt of and imposing punishment on
offenders under the substantive criminal law, for example, the Indian Penal Code

STAGES OF CRIME
It involves four important stages:

Criminal Intention

Preparation

Attempt

Commission of Crime or Accomplishment

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.2
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

1. Criminal Intention
Criminal intention is the first stage in the commission of offence. Intention is the conscious
exercise of mental faculties of a person to do an act for the purpose of accomplishing or
satisfying a purpose. Law does not as a rule punish individuals for their evil thoughts or criminal
intentions. The criminal court does not punish a man for mere guilty intention because it is
very difficult for the prosecution to prove the guilty intention of a man.
Intention means doing any act with one’s will, desire, voluntariness, malafides and for some
purpose.
Example
If a man drives in a rash and reckless manner resulting in an accident-causing death of a
person, the reckless driver cannot plead innocence by stating that he never intended to cause
the death of the person.
It may be true in the strict sense of term. But a reckless driver should know that reckless
driving is likely to result in harm and can even cause death of the persons on the road, So, by
virtue of definition of the word ‘voluntarily’ in the IPC, a reckless driver who causes death of
a person can be presumed or deemed to have intended to cause the death of the person.

2. Preparation
Preparation means to arrange necessary measures for commission of intended criminal act.
Preparation itself is not punishable as it is difficult to prove that necessary preparations were
made for commission of the offence. But in certain exceptional cases mere preparation is also
punishable. Under the IPC, mere preparation to commit few offences is punishable as they are
considered to be grave offences. Some of them are as follows:
i. Preparation to wage war against the Government
ii. Preparation for counterfeiting of coins or Government Stamps
iii. Making preparation to commit dacoity

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.3
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

3. Attempt
Attempt, which is the third stage in the commission of a crime, is punishable. Attempt has
been called as a preliminary crime. It means the direct movement towards commission of a
crime after necessary preparations have been made. When a person wants to commit a crime,
he firstly forms an intention, then makes some preparation and finally does something for
achieving the object; if he succeeds in his object, he is guilty of completed offence otherwise
only for making an attempt.
The act constituting attempt must be proximate to the intended result. Under the IPC, the
sections on attempt can be divided into four broad categories:
i. Those sections in which the commission of an offence and the attempt to commit are dealt
within the same section, the extent of the punishment being the same for both the offence
as also the attempt. The examples of this category are those offences against the State such
as waging or attempting to wage war against the Government of India, assaulting or attempting
to assault the President or Governor with intent to compel or restrain the exercise of lawful
power, sedition, a public servant accepting or attempting to accept gratification, using or
attempting to use evidence knowing it to be false, dacoity etc.
ii. Those offences in which the attempt to commit specific offences are dealt side by side with
the offences themselves, but separately, and separate punishments have been provided for the
attempt. The examples of this category are attempt to commit an offence punishable with
death or imprisonment for life including robbery, murder etc.
iii. Attempt to commit suicide specifically provided under section 309 IPC. However, according to
section 115 of the Mental Healthcare Act, 2017, notwithstanding anything contained in section
309 of IPC, any person who attempts to commit suicide shall be presumed, unless proved
otherwise, to have severe stress and shall not be tried and punished under IPC.
iv. The fourth category relates to the attempt to commit offences for which no specific punishment
has been provided in the IPC. Such attempts are covered under section 511. This section of the
IPC provides that whoever attempts to commit an offence punishable by IPC with imprisonment
for life or imprisonment, or cause such an offence to be committed, and in such attempt does
any act towards commission of the offence, shall, where no express provision is made by IPC
for the punishment of such attempt, be punished with imprisonment of any description provided
for the offence, for a term which may extend to one-half of the imprisonment for life or, as

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.4
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

the case may be, one- half of the longest term of imprisonment provided for that offence, or
with such fine as is provided for the offence, or with both.

4. Commission of Crime or Accomplishment

The last stage in the commission of crime is its accomplishment. If the accused succeeds in
his attempt, the result is the commission of crime and he will be guilty of the offence. If his
attempt is unsuccessful, he will be guilty for an attempt only. If the offence is complete, the
offender will be tried and punished under the specific provisions of the IPC.

TYPES OF PUNISHMENTS
Punishments: - The punishments to which offenders are liable under the provisions of IPC
are:
1. Death: - A death sentence is the harshest of punishments provided in the IPC, which involves
the judicial killing or taking the life of the accused as a form of punishment. The Supreme
Court has ruled that death sentence ought to be imposed only in the ‘rarest of rare cases. The
IPC provides for capital punishment for the following offences:
i. Murder
ii. Dacoity with Murder.
iii. Waging War against the Government of India.
iv. Abetting mutiny actually committed.
v. Giving or fabricating false evidence upon which an innocent person suffers death
vi. Abetment of a suicide by a minor or insane person;
vii. Attempted murder by a life convict.

2. Life Imprisonment: - Imprisonment for life meant rigorous imprisonment, that is, till the last
breath of the convict.

3. Imprisonment: - Imprisonment which is of two descriptions namely –

i. Rigorous Imprisonment, that is hard labour;
ii. Simple Imprisonment

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.5
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

4. Forfeiture of property: -
The Courts may order for forfeiture of property of the accused in certain occasions.

5. Fine

DIFFERENCE BETWEEN FINE AND PENALTY

Fine
“a sum imposed as punishment for an offense”.

Penalty
“The suffering or the sum to be forfeited to which a person agrees to be subjected in case of
non-fulfilment of stipulations.”

Analysis
An inference may be drawn from the definitions above that punishments are against offences
and penalties are against non-compliances.
Accordingly, we can analyse that the mention of fine and penalty in a particular provision may
depend upon the nature of provision i.e., Criminal or Civil.

Example
According to section 12(8) of the Companies Act, 2013, if any default is made in complying
with the requirements of section 12, the company and every officer who is in default shall be
liable to a penalty of one thousand rupees for every day during which the default continues
but not exceeding one lakh rupees.
In this provision, we may note that here the default is in nature of non-compliance there the
provision creates the liability of penalty.
According to section 16(3) of the Companies Act, 2013, if a company makes default in
complying with any direction given under section 16(1), the company shall be punishable with
fine of one thousand rupees for every day during which the default continues and every officer
who is in default shall be punishable with fine which shall not be less than five thousand
rupees but which may extend to one lakh rupees.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.6
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

In this provision, we may note that here the default is in nature of offence and the provision
provides for fine as a punishment.

ELEMENTS OF CRIME: MENS REA AND ACTUS REUS

1. Human Being – The first requirement for commission of crime is that the act must be
committed by a human being. The human being must be under legal obligation to act in
particular manner and be physically and mentally fit for conviction in case he has not acted
in accordance with the legal obligation.

2. Mens rea – The basic principle of criminal liability is embodied in the legal maxim ‘actus non
facit reum, nisi mens sit rea’. It means ‘the act alone does not amount to guilt; the act
must be accompanied by a guilty mind’. The intention and the act must both concur to
constitute the crime. Mens rea is defined as the mental element necessary to constitute criminal
liability. The act is judged not from the mind of the wrong-doer, but the mind of the wrong-
doer is judged from the act.

TYPES OF MENS REA

Intention Negligence Recklessness

Supreme Court in GirjaNath v. State said Intention, Negligence and recklessness are the
important forms of mens rea.

i. Intention: Intention is defined as ‘the purpose or design with which an act is done’. Intention
indicates the position of mind, condition of someone at particular time of commission of offence
and also will of the accused to see effects of his unlawful conduct. Criminal intention does
not mean only the specific intention but it includes the generic intention as well.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.7
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Example
A poisons the food which B was supposed to eat with the
intention of killing B. C eats that food instead of B and is
killed. A is liable for killing C although A never intended it.

ii. Negligence: Negligence is the second form of mens rea. Negligence is not taking care, where
there is a duty to take care. Negligence or carelessness indicates a state of mind where there
is absence of a desire to cause a particular consequence. The standard of care established by
law is that of a reasonable man in identical circumstances. What amounts to reasonable care
differs from thing to thing depending situation of each case. In criminal law, the negligent
conduct amounts to mens rea.

Example
A was driving recklessly and met with an accident and resulted
in killing B. A may be held liable for killing B as he was driving
negligently although there was no intention of killing B.

iii. Recklessness: Recklessness occurs when the actor does not desire the consequence, but
foresees the possibility and consciously takes the risk. It is a total disregard for the
consequences of one’s own actions. Recklessness is a form of mens rea.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.8
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Example
The mens rea or evil intent of the wrong-doer is indicated
by the use of such words as- intentionally, voluntarily,
fraudulently, dishonestly, maliciously, knowingly etc.

EXEPTIONS TO MENS REA:

There are many exceptional cases where mens rea is not required in criminal law. Some of
them are as follows:
i. Where a statute imposes liability, the presence or absence of a guilty mind is irrelevant.
The classical view of that ‘no mens rea, no crime’ has long been eroded and several laws in
India and abroad, especially regarding economic crimes and departmental penalties, have created
severe punishment even where the offences have been defined to exclude mens rea. Many laws
passed in the interest of public safety and social welfare imposes absolute liability. This is so
in matters concerning public health, food, drugs, etc.
ii. Where it is difficult to prove mens rea and penalties are petty fines.
In such petty cases, speedy disposal of cases is necessary and the proving of mens rea is not
easy. An accused may be fined even without any proof of mens rea.
iii. In interest of public safety
In the interest of public safety, strict liability is imposed and whether a person causes public
nuisance with a guilty mind or without guilty mind, he is punished.
iv. Violation without knowledge
If a person violates a law even without the knowledge of the existence of the law, it can still
be said that he has committed an act which is prohibited by law. In such cases, the fact that
he was not aware of the law and hence did not intend to violate it is no defense and he would
be liable as if he was aware of the law. This follows from the maxim Ignorantia juris non
excusat means which means Ignorance of the law is no excuse.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.9
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

3. Actus Reus (act or omission): The third essential element of crime is Actus Reus. A human
being and an evil intent are not enough to constitute a crime for one cannot know the
intentions of a man. Actus Reus means overt act or unlawful commission must be done in
carrying out a plan with the guilty intention.
Actus Reus is defined as a result of voluntary human conduct which law prohibits. It is the
doing of some act by the person to be held liable. An ‘act’ is a willed movement of body.

COGNIZABLE AND NON-COGNIZABLE OFFENCES

“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.
In order to be a cognizable case under Section 2(c) of the Code, it would be enough if one or
more (not ordinarily all) of the offences are cognizable.

Difference between Cognizable and Non-Cognizable Offences

BASIS COGNIZABLE OFFENCES NON-COGNIZABLE OFFENCES

WARRANT Warrant is not necessary in case of Warrant is necessary in case of

Cognizable offence Non- Cognizable Offences.
NATURE OF Nature of offence is serious in Nature is not much serious in
OFFENCE cognizable offence case of Non-Cognizable Offences.
INFORMATION Generally, Information relating to The substance of the Information
OF CASES the cognizable offence, should be given should be entered the in a
reduced to writing and be read over book to be kept by such officer
to the informant, if given orally. and refer the informant to the
Information, whether given in Magistrate.
writing or reduced to writing as

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.10
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

aforesaid, should be signed by the Police officer should not

person giving it. investigate a non-cognizable case
without the order of a concerned
Magistrate.
EXAMPLES Riot, Murder, Being a thug, Giving or fabricating false
Voluntarily causing grievous hurt evidence in a judicial proceeding,
etc. Intentional insult or interruption
to a public servant sitting in any
stage of a
Judicial proceeding, voluntarily
causing hurt, Assault, Cheating,
Forgery etc.

CLASSES OF CRIMINAL COURTS

Following are the different classes of criminal courts:

High Court

Court of
Session
Judicial
Magistrates of
Judicial the first class
Magistrates and in any
Executive
of the second metropolitan
Magistrates class area
Metropolitan
Magistrates

The Supreme Court is also vested with powers to deal with some criminal matters. Article 134
confers appellate jurisdiction on the Supreme Court in regard to criminal matters from a High
Court in certain cases.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.11
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

POWER OF COURTS
Courts by which offence triable
Offences are divided into two categories:

OFFENCES DEALT
BY SECTION 26

Any offence under Offence under

the Indian Penal any other law
Code

1. High Court or
1. High Court or
2. Any other Court by which
2. The Court of Session or
such offence is shown in the
3. Any other Court by which such offence is First Schedule to be triable.
shown in the First Schedule to be triable.

POWER OF THE COURT TO PASS SENTENCES

1. Sentences which High Courts and Sessions Judges may pass
According to Section 28, a High Court may pass any sentence authorised by law. A Sessions
Judge or Additional Sessions Judge may pass any sentence authorised by law, but any sentence
of death passed by any such judge shall be subject to confirmation by the High Court.
An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of
death or of imprisonment for life or of imprisonment for a term exceeding ten years.
Thus, Section 26 of the Code enumerates the types of Courts in which different offences can
be tried and then under Section 28, it spells out the limits of sentences which such Courts
are authorised to pass.

2. Sentences which Magistrates may pass

Section 29 lays down the quantum of sentence which different categories of Magistrates are
empowered to impose. The powers of individual categories of Magistrates to pass the sentence
are as under:

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.12
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

i. The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a
sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven
years.
ii. A Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding
three years or of a fine not exceeding ten thousand rupees, or of both.
iii. A Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding
one year, or of fine not exceeding five thousand rupees, or of both.
iv. A Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial
Magistrate and that of a Metropolitan Magistrate, and the powers of the Court of a Magistrate
of the First class.

3. 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. Section
30 defines the limits of Magistrate’s powers to award imprisonment in default of payment of
fine. 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 that the term:
i. is not in excess of the powers of the Magistrate under Section 29; and
ii. 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.

4. Sentences in cases of conviction of several offences at one trial

Section 31 relates to the quantum of punishment which the Court is authorised to impose
where the accused is convicted of two or more offences at one trial. Under this section, the
Court may, subject to the provisions of section 71 (Limit of punishment of offence made up
of several offences) of the Indian Penal Code, sentence to the several punishments prescribed
which such Court is competent to inflict. Such punishments when consisting of imprisonment
to commence the one after the expiration of the other in such order as the Court may direct,
unless the Court directs that such punishments shall run concurrently.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.13
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

SENTENCING POWER OF DIFFERENT COURTS

Supreme Court Any sentence authorised by the law
High Court Any sentence authorised by the law
Session Judge, Additional Any sentence authorised by law, but any sentence of death passed
Session Judge by any such judge shall be subject to confirmation by the High Court

Assistant Session Judge Any sentence authorised by law except a sentence of death or of
imprisonment for life or of imprisonment for a term exceeding ten
years
Chief Judicial Magistrate, Any sentence authorised by law except a sentence of death or of
Chief Metropolitan imprisonment for life or of imprisonment for a term exceeding seven
Magistrate years
Judicial Magistrate First Any sentence of imprisonment for a term not exceeding three years
Class, or of a fine not exceeding ten thousand rupees
Metropolitan Magistrate
Judicial Magistrate Second Any sentence of imprisonment for a term not exceeding one year, or
Class of fine not exceeding five thousand rupees, or of both
Any sentence of imprisonment for a term not exceeding three years
Special Judicial Magistrate or of fine not exceeding five thousand rupees
Any sentence of imprisonment for a term not exceeding One year or
of fine not exceeding five thousand rupees

INHERENT POWER OF HIGH COURT

Section 482 of Cr.P.C. is one of the most important sections of the Cr. P.C. It says that
nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court
to make such orders as may be necessary to give effect to any order under this Code, or to
prevent abuse of the process of any Court or otherwise to secure the ends of justice.
Inherent powers u/s 482 of Cr.P.C. 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 and ramification. Court can always take note of any miscarriage of justice and

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.14
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

prevent the same by exercising its powers under section 482 of Cr.P.C. However, such inherent
powers are to be exercised sparingly and with caution.

The Supreme Court in the case Madhu Limaye v. State of Maharashtra, has held that the
following principles would govern the exercise of inherent jurisdiction of the High Court:
1. Power is not to be resorted to, if there is a specific provision in the Code for redress of
grievances of aggrieved party.
2. It should be exercised very sparingly to prevent abuse of process of any Court or otherwise
to secure ends of justice.
3. It should not be exercised as against the express bar of the law engrafted in any other
provision of the code.

ARREST OF PERSONS
Arrest by Police Officer without warrant
The word “arrest” consists of taking into custody of another person under authority empowered
by law, for the purpose of holding or detaining him to answer a criminal charge and preventing
the commission of a criminal offence.
Section 41 of the Criminal Procedure Code, 1973 states that, any police officer may without an
order from a Magistrate and without a warrant, arrest any person:
1. who commits, in the presence of a police officer, a cognizable offence,
2. against whom a reasonable complaint has been made, or credible information has been received,
or a reasonable suspicion exists that he has committed a cognizable offence punishable with
imprisonment for a term which may be less than seven years or which may extend to seven
years whether with or without fine, if the following conditions are satisfied, namely:
i. the police officer has reason to believe on the basis of such complaint, information, or suspicion
that such person has committed the said offence,
ii. the police officer is satisfied that such arrest is necessary:
a. to prevent such person from committing any further offence, or
b. for proper investigation of the offence, or
c. to prevent such person from causing the evidence of the offence to disappear or tampering
with such evidence in any manner, or

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.15
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

d. to prevent such person from making any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade him from disclosing such facts
to the Court or to the police officer, or
e. the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not
required under the provisions of this sub-section, record the reasons in writing for not
making the arrest.
iii. against whom credible information has been received that he has committed a cognizable
offence punishable with imprisonment for a term which may extend to more than seven years
whether with or without fine or with death sentence and the police officer has reason to
believe on the basis of that information that such person has committed the said offence.
3. who has been proclaimed as an offender.
4. in whose possession anything is found which may reasonably be suspected to be stolen property.
5. who obstructs a police officer while in the execution of his duty, or who has escaped, or
attempts to escape, from lawful custody, or
6. who is reasonably suspected of being a deserter from any of the Armed Forces of the Union,
7. any act committed at any place out of India which, if committed in India, would have been
punishable as an offence, and for which he is, under any law relating to extradition, or otherwise,
liable to be apprehended or detained in custody in India, or
8. who being a released convict, commits a breach of any rule, or
9. for whose arrest any requisition, whether written or oral, has been received from another police
officer, provided that the requisition specifies the person to be arrested and the offence or
other causes for which the arrest is to be made it appears therefrom that the person might
lawfully be arrested without a warrant by the officer who issues the requisition.

CERTAIN MEASURES TO BE FOLLOWED IN THE EXERCISE OF POWER UNDER SECTION 41

It was believed that the power granted to the police to make arrests without warrant was
misused in a number of cases. This was brought to the notice of the higher courts which at
various points emphasized certain rules that must be followed by police while exercising its
powers to make arrest.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.16
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

These rules were gradually incorporated in the Cr.P.C by making amendments to it. Following
are some of those safeguards:

1. To Issue a notice to appear

Section 41A of Cr. P. C. says that the police officer shall, in all cases where the arrest of a
person is not required under the provisions of sub-section (1) of section 41, issue a notice
directing the person 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, to appear before him or at such other place as may be specified in the
notice.
Where such a notice is issued to any person, it shall be the duty of that person to comply
with the terms of the notice and where such person complies and continues to comply with
the notice, he shall not be arrested in respect of the offence referred to in the notice.

2. Procedure to be followed
Section 41B of Cr. P.C. talks about the procedure of arrest and duties of the officer making
arrest. According to it every police officer while making an arrest shall--
i. bear an accurate, visible and clear identification of his name which will facilitate easy
identification;
ii. prepare a memorandum of arrest which shall be:
a. attested by at least one witness, who is a member of the family of the person arrested
or a respectable member of the locality where the arrest is made.
b. countersigned by the person arrested, and
c. inform the person arrested, unless the memorandum is attested by a member of his family,
that he has a right to have a relative or a friend named by him to be informed of his
arrest.

3. Right of arrested person to meet an advocate of his choice during interrogation

According to Section 41D of Cr.P.C. when any person is arrested and interrogated by the police,
he shall be entitled to meet an advocate of his choice during interrogation, though not
throughout interrogation.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.17
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

ARREST ON REFUSAL TO GIVE NAME AND RESIDENCE

Section 42 of Cr. P.C. provides that 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. However, such person cannot be
detained beyond 24 hours if his true name and address cannot be ascertained or fails to
execute a bond or furnish sufficient sureties. In that event he shall be forwarded to the nearest
Magistrate having jurisdiction.

ARREST BY A PRIVATE PERSON

Section 43 of Cr. P.C. provides that 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.

ARREST BY MAGISTRATE
The Magistrate has been given power to arrest a person who has committed an offence in his
presence and also commit him to custody.

EXCEPTIONS FOR ARMED FORCES

Section 45 of Cr. P.C. protects members of Armed Forces from arrest where they do something
in discharge of their official duties. They could be arrested only after obtaining the consent of
the Central Government.

ARREST HOW MADE

1. Section 46 of Cr. P.C. sets out the manner in which an arrest is to be made. 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.
2. 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.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.18
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

3. No woman shall be arrested after sunset and before sunrise, and where such exceptional
circumstances exist, the woman police officer shall, by making a written report, obtain the
prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the
offence is committed or the arrest is to be made.
4. Section 48 of Cr. P. C. 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.
5. Persons arrested are to be taken before the Magistrate within 24 hours. When a person is
arrested under 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 of Cr.P.C. 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.
6. 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.
7. If a person in lawful custody escapes or is rescued, the person, from whose custody he escaped
or was rescued, is empowered to pursue and arrest him in any place in India and although the
person making such arrest is not acting under a warrant and is not a police officer having
authority to arrest, nevertheless, the provisions of Section 47 are applicable which stipulates
provisions relating to search of a place entered by the person sought to be arrested.

SUMMONS AND WARRANTS UNDER Cr.P.C.

The general processes to compel appearance are:
1. Summons (Section 61)
2. Warrants (Section 70)

SUMMONS

Issuance of 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.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.19
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Service of summons
The summons shall be served by a police officer or by an officer of the Court or other public
servant. 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, and the person with whom the summons is so left shall, if
so, required by the serving officer, sign a receipt on the back of the other duplicate.

Service of summons on corporate bodies, and societies

The service of summons on a corporation may be effected by serving it on the secretary, local
manager or other principal officer of the corporation, or by letter sent by registered post,
addressed to the Chief Officer of the corporation in India.

Substituted Service
In case the service cannot be effected by the exercise of due diligence, the serving officer can
perform substituted service by affixing one of the duplicates of the summons to some
conspicuous part of the house or homestead in which person summoned ordinarily resides, and
thereupon the Court, after making such enquiries as it thinks fit may either declare that the
summons has been duly served or order fresh service, as it considers proper.

Service of summons on witness by post

A Court issuing a summons to a witness may, in addition to and simultaneously with the
issue of such summons, direct a copy of the summons to be served by registered post addressed
to the witness at the place where he ordinarily resides or carries on business or personally
works for gain and when an acknowledgement is signed by the witness or an endorsement is
made by a postal employee that the witness refused to take delivery of the summons has been
received, the Court issuing the summons may declare that the summons has been duly served.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.20
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

WARRANT OF ARREST
Every warrant of arrest issued by a Court under this Cr. P.C. shall be in writing, signed by the
presiding officer of such Court, and shall bear the seal of the Court. Such warrant shall remain
in force until it is cancelled by the Court which issued it, or until it is executed (Section 70).
The requisites of a warrant are as follows:
a. It must be in writing.
b. It must bear the name and designation of the person who is to execute it;
c. It must give full name and description of the person to be arrested;
d. It must state the offence charged;
e. It must be signed by the presiding officer; and
f. It must be sealed.
Such warrant is only for production of a person before the concerned Court and not before the
police officer.

Proclamation and Attachment

Where a warrant remains unexecuted, the Code of Procedure Code, 1973 provides for two
remedies:

Issuing a Proclamation
(Section 82)
Attachment and sale of Property
(Section 83)

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.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.21
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing,
at any time after the issue of the proclamation, order the attachment of any property, movable
or immovable, or both, belonging to the proclaimed person. The object of attaching property is
not to punish him but to compel his appearance.

SEARCH WARRANT

According to Section 93 of Cr.PC, a search warrant can be issued only

Where Court has reason to believe that a person to whom a summons or a requisition is
addressed, will not produce the document or thing as required by such summons or
requisition
Where such document or thing is not known to the Court to be in the possession of any
person
Where the Court considers that the purposes of any inquiry, trial or other proceeding de
will be served by a general search or inspection
The Court may specify in the warrant the particular place or part thereof to be searched
Any magistrate other than District Magistrate or Chief Judicial Magistrate should not
grant a warrant to search for a document, parcel or other thing in the custody of the
postal or telegraph authority

SEARCH BY POLICE OFFICER

Section 165 of Cr.PC authorises general search if the police officer has reason to believe that
anything necessary for the purpose of an investigations may be found. The officer acting under
this section must record in writing his reasons for making of a search.

In the case of State of Punjab v. Balbir Singh, 1994, the Supreme Court held that non-
compliance of these provisions i.e., Sections 100 and 165 CrPC would amount to an irregularity.
The illegality of search will not affect the validity of the articles or in any way vitiate the
recovery of the articles and the subsequent trial but the search would not have the same
credibility which a search would have if the safeguards were duly followed.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.22
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

SUMMARY TRIALS

Summary trial is a speedy trial by dispensing with formalities or delay in proceedings. By

summary cases is meant a case which can be tried and disposed of at once. Generally, it will
apply to such offences not punishable with imprisonment for a term exceeding two years.
Section 260(1) of the Criminal Procedure Code sets out the provisions for summary trials. It
says: Notwithstanding anything contained in Cr. P.C.
1. any Chief Judicial Magistrate,
2. any Metropolitan Magistrate,
3. any Magistrate of the First class who is specially empowered in this behalf by the High Court,
may, if he thinks fit, try in a summary way all or any of the following offences:
i. offences not punishable with death, imprisonment for life or imprisonment for a term
exceeding two years;
ii. theft, where the value of the property stolen does not exceed Rs. 2,000;
iii. receiving or retaining stolen property, where the value of such property, does not exceed Rs.
2,000,
iv. assisting in the concealment or disposal of stolen property, where the value of such property
does not exceed Rs. 2,000,
v. offences under Sections 454 i.e., House Breaking or Trespass and 456 i.e., Punishment of
Trespass of the Indian Penal Code,
vi. insult with intent to provoke a breach of the peace,
vii. abatement of any of the foregoing offences,
viii. an attempt to commit any of the foregoing offences, when such attempt is an offence,
ix. any offence constituted by an act in respect of which a complaint may be made under Section
20 of the Cattle Trespass Act, 1871.
Section 260(2) states that when in the course of a summary trial it appears to the Magistrate
that the nature of the case is such that it is undesirable to try it summarily, the Magistrate
shall recall any witnesses who may have been examined and proceed to re-hear the case in
the manner provided in CR.P.C.
Section 262 envisages procedure for summary trials. Sub-section (1) lays down that in all
summary trials the summons-case procedure should be followed irrespective of the nature of

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.23
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

the case i.e. whether it is a summons case or a warrant case. Sub-section (2) laying 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.

COMPOUNDING OF OFFENCES
There may be the times when parties to a suit do not want to continue further proceedings in
the court and they want to settle it out of the court amicably, then the compounding comes
into picture. In such case, future proceedings do not take place in the court.

COMPOUNDABLE OFFENCE AND ITS AUTHORITY

Name of the offence Who can compound the offence

Voluntarily causing grievous hurt. To whom hurt has been caused
Assault or criminal force in attempting The person assaulted or to whom the
wrongfully to confine a person. force was used.

BAIL
Bail means the release of the accused from the custody and entrusting him to the private
custody of persons who are sureties to produce the accused to answer the charge at the
stipulated time or date.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.24
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

TYPES OF BAIL

Types of Bail
Regular Bail Interim Bail Anticipatory Bail
A bail granted after the A bail given during pendency A bail given when a person
offence is committed. of application. has apprehension that he
may be arrested on an
accusation of having
committed a non-bailable
offence.

BAIL IN CASES OF BAILABLE OFFENCES

If a person accused of an offence other than non-bailable offence (i.e. Bailable Offence) is
arrested or detained without warrant by an officer in charge of a police station, or appears or
is brought before a Court, and he is prepared to give bail, such person shall be released on bail.
However, where a person has failed to comply with the conditions of the bail-bond as regards
the time and place of attendance, the Court may refuse to release him on bail.

BAIL IN CASES OF NON-BAILABLE OFFENCES (SECTION 437)

When any person accused of, or suspected of, the commission of any non-bailable offence is
arrested or detained without warrant by an officer in charge of a police station or appears or
is brought before a Court, he may be released on bail but subject to:
i. such person shall not be so released if there appear reasonable grounds for believing that he
has been guilty of an offence punishable with death or imprisonment for life;
ii. such person shall not be so released if such offence is a cognizable offence and
a. he had been previously convicted of an offence punishable with death, imprisonment for life or
imprisonment for seven years or more, or
b. he had been previously convicted on two or more occasions of a cognizable offence.
However, the Court may direct that a person referred to in clause (a) or clause (b) above be
released on bail if such person is under the age of sixteen years or is a woman or is sick or
infirm.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.25
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

The bail may also be cancelled, If, in a case triable by a Magistrate, the trial of a person
accused of any non-bailable offence is not concluded within a period of sixty days from the
first date fixed for taking evidence in the case, such person shall, if he is in custody during
the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless
for reasons to be recorded in writing, the Magistrate otherwise directs.

ANTICIPATORY BAIL (SECTION 438)

When a person has reason to believe that he may be arrested on an accusation of non-bailable
offence, he may apply to the High Court or the Court of Session for a necessary direction and
that Court may, direct that in the event of such arrest, he shall be released on bail.
When the High Court or the Court of Session grants bail under section 438(1), it may include
such conditions, as it may think fit, including:
i. that the person shall make himself available for interrogation by a police officer as and when
required,
ii. that the person shall not, directly or indirectly, make any inducement, threat or promise to
any person acquainted with the facts of the case so as to dissuade him from disclosing such
facts to the Court or to any police officer,
iii. that the person shall not leave India without the previous permission of the Court.

OFFENCES AGAINST PROPERTY

The Property is of two kinds i.e. movable and immovable. The offence which is committed in
regard to any kind of property whether it is movable or immovable is punishable under Indian
Penal Code.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.26
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

THEFT
Whoever, intending to take dishonestly any movable property out of the possession of any
person without that person’s consent, moves that property in order to such taking, is said to
commit theft.

The essentials elements of theft are:

1. There should an intention to dishonestly take the property.
2. The property should be movable property.
3. The property should be taken out of the possession without that person’s consent.
4. The property should be moved in order to take that property.

Situations which do not constitute theft

Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till Z shall return. A
carries the plate to a goldsmith and sells it. Here the plate was not in Z’s possession. It could
not therefore be taken out of Z’s possession, and A has not committed theft, though he may
have committed criminal breach of trust.

Punishment for theft

Section 379 of IPC provides the punishment for theft and states that whoever commits theft
shall be punished with imprisonment of either description for a term which may extend to
three years, or with fine, or with both.
However, there are different punishment for theft depending upon situation, which may
understood with the help of below:

SITUATION PUNISHMENT
Theft in dwelling house, etc Imprisonment of either description for a term
which may extend to seven years, and shall
also be liable to fine.
Theft by clerk or servant of property in Imprisonment of either description for a term
possession of master which may extend to seven years, and shall
also be liable to fine.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.27
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Theft after preparation made for causing Rigorous imprisonment for a term which may
death, hurt or restraint in order to the extend to ten years, and shall also be liable
committing of the theft. to fine.

EXTORTION (SECTION 383)

Whoever intentionally puts any person in fear of any injury to that person, or to any other,
and thereby dishonestly induces the person so put in fear to deliver any person any property,
or valuable security or anything signed or sealed which may be converted into a valuable
security, commits “extortion”.
The essentials elements of Extortion are:
1. There should be an intention to put any person in fear of any injury.
2. By that fear of injury, dishonestly induces the person so put in fear to deliver any property or
valuable security or anything signed or sealed which may be converted into a valuable security.

PUNISHMENT OF EXTORTION
Whoever commits extortion shall be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with both.
However, there are different punishment for extortion depending upon situation, which may
understood with the help of below:

SITUATION PUNISHMENT
Putting person in fear of injury in order to Imprisonment of either description for a term
commit extortion which may extend to two years, or with fine,
or with both.
Extortion by putting a person in fear of Imprisonment of either description for a term
death or grievous hurt which may extend to ten years, and shall also
be liable to fine.
Putting person in fear of death or of Imprisonment of either description for a term
grievous hurt, in order to commit extortion which may extend to seven years, and shall
also be liable to fine.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.28
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Extortion by threat of accusation of an Imprisonment of either description for a term

offence punishable with death or which may extend to ten years, and shall also
imprisonment for life, etc. be liable to fine; and,
if the offence be one punishable under
section 377 of this Code, may be punished
with imprisonment for life.
Putting person in fear or accusation of Imprisonment of either description for a term
offence, in order to commit extortion which may extend to ten years, and shall also
be liable to fine; and, if the offence be
punishable under section 377 of this Code,
may be punished with imprisonment for life.

Distinction between Extortion and Theft

Both are different from in following respects:
a. Extortion is done by wrongfully getting the consent of the owner while there is no present
of consent in case of theft.
b. Both movable and immovable property may be the subject of an extortion whereas theft is
limited to movable property only because of its nature.

ROBBERY (SECTION 390)

In all robbery there is either theft or extortion.
When theft is robbery
Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or
in carrying away or attempting to carry away property obtained by the theft, the offender, for
that end voluntarily causes or attempts to cause to any person death or hurt or wrongful
restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.

When extortion is robbery. —Extortion is “robbery” if the offender, at the time of committing
the extortion, is in the presence of the person put in fear, and commits the extortion by
putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.29
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

to that person or to some other person, and, by so putting in fear, induces the person so put
in fear then and there to deliver up the thing extorted.
The offender is said to be present if he is sufficiently near to put the other person in fear of
instant death, of instant hurt, or of instant wrongful restraint.

Punishment for Robbery

Section 392 of IPC provides the punishment for robbery and states that whoever commits
robbery shall be punished with rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine; and, if the robbery be committed on the highway
between sunset and sunrise, the imprisonment may be extended to fourteen years.

Punishment for attempt of Robbery

As per section 393 of IPC, whoever attempts to commit robbery shall be punished with rigorous
imprisonment for a term which may extend to seven years, and shall also be liable to fine.

DACOITY (SECTION 391)

When five or more persons conjointly commit or attempt to commit a robbery, every person so
committing, attempting or aiding, is said to commit “dacoity”.
The essentials elements of Dacoity are:
1. There should be at least five persons by active participation or aiding.
2. They will commit robbery or its attempt.
3. Every person whether committing or aiding is said to commit dacoity.

Emperor v. Lashkar, a gang of five dacoits, one of whom had a gun, raided the house of X.
After looting, while they were running away with their booty, they shot down one villager. It
was held that the murder committed by the dacoits while carrying away the stolen property
was murder committed in the commission of dacoity, and every offender was therefore liable
for the murder.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.30
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Punishment for dacoity

Whoever commits dacoity shall be punished with imprisonment for life.

CRIMINAL MISAPPROPRIATION OF PROPERTY

Dishonest misappropriation of property

Section 403 states whoever dishonestly misappropriates or converts to his own use any movable
property, shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.

Illustration 1: A takes property belonging to Z out of Z’s possession, in good faith believing at
the time when he takes it, that the property belongs to himself. A is not guilty of theft; but
if A, after discovering his mistake, dishonestly appropriates the property to his own use, he is
guilty of an offence under this section.

Illustration 2: A, being on friendly terms with Z, goes into Z’s library in Z’s absence, and
takes away a book without Z’s express consent. Here, if A was under the impression that he
had Z’s implied consent to take the book for the purpose of reading it, A has not committed
theft. But, if A afterwards sells the book for his own benefit, he is guilty of an offence under
this section.

Essential ingredients of Dishonest Misappropriation of Property

There are two things necessary before an offence under section 403 can be established. Firstly,
that the property must be misappropriated or converted to the use of the accused, and,
secondly, that he must misappropriate or convert it dishonestly.
a. In Bhagiram Dome v. Abar Dome, it has been held that under Section 403 criminal
misappropriation takes place even when the possession has been innocently come by, but where,
by a subsequent change of intention or from the knowledge of some new fact which the party
was not previously acquainted, the retaining become wrongful and fraudulent.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.31
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

b. In Mohammad Ali v. State, fifteen bundles of electric wire were seized from the appellant
but none including electricity department claimed that wires were stolen property. Evidence on
records showed that impugned electric wire was purchased by the applicant from scrap seller.
Merely applicant not having any receipt for purchase of impugned wire cannot be said to be
guilty of offence punishable under Section 403 of the Code. Order of framing charge was,
therefore, quashed by the Supreme Court and the accused was not held guilty under section
403 of the Indian Penal Code, 1860.

c. In U. Dhar v. State of Jharkhand, there were two contracts- one between the principal
and contractor and another between contractor and sub-contractor. On completion of work
sub-contractor demanded money for completion of work and on non-payment filed a criminal
complaint alleging that contractor having received the payment from principal had
misappropriated the money. The magistrate took cognizance of the case and High Court refused
to quash the order of magistrate. On appeal to the Supreme Court, it was held that matter
was of civil nature and criminal complaint was not maintainable and was liable to be quashed.
The Supreme Court also observed that money paid by the principal to the contractor was not
money belonging to the complainant, sub-contractor, hence there was no question of
misappropriation.

DISHONEST MISAPPROPRIATION OF PROPERTY POSSESSED BY DECEASED PERSON AT THE

TIME OF HIS DEATH (SECTION 404)

Whoever dishonestly misappropriates or converts to his own use property, knowing that such
property was in the possession of a deceased person at the time of that person’s death, and
has not since been in the possession of any person legally entitled to such possession, 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 at the time of such person’s death
was employed by him as a clerk or servant, the imprisonment may extend to seven years.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.32
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

CRIMINAL BREACH OF TRUST

Criminal breach of trust (Section 405)

Whoever, being in any manner entrusted with property, or with any dominion over property,
dishonestly misappropriates or converts to his own use that property, or dishonestly uses or
disposes of that property in violation of any direction of law prescribing the mode in which
such trust is to be discharged, or of any legal contract, express or implied, which he has made
touching the discharge of such trust, or wilfully suffers any other person so to do, commits
“criminal breach of trust”.
Explanation 1. —A person, being an employer of an establishment who deducts the employee’s
contribution from the wages payable to the employee for the credit to a Provident Fund or
Family Pension Fund established by any law for the time being in force, shall be deemed to
have been entrusted with the amount of contribution so deducted by him and if he makes
default in the payment of such contribution to the said Fund in violation of the said law, shall
be deemed to have dishonestly used the amount of the said contribution in violation of a
direction of law as aforesaid.

Essential Ingredients of Criminal Breach of Trust

The essential ingredients of the offence of criminal breach of trust are as under:
1. The accused must be entrusted with the property or with dominion over it,
2. The person so entrusted must use that property, or;
3. The accused must dishonestly use or dispose of that property or wilfully suffer any other person
to do so in violation,
i. of any direction of law prescribing the mode in which such trust is to be discharged, or;
ii. of any legal contract made touching the discharge of such trust.

CASE LAWS
1. V.R. Dalal v. Yugendra Naranji Thakkar, has held that the first ingredient of criminal breach
of trust is entrustment and where it is missing, the same would not constitute a criminal
breach of trust. Breach of trust may be held to be a civil wrong but when mens-rea is involved
it gives rise to criminal liability also.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.33
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

2. Pratibha Rani v. Suraj Kumar, the appellant alleged that her stridhan property was entrusted
to her in-laws which they dishonestly misappropriated for their own use. She made out a clear,
specific and unambiguous case against in-laws. The accused were held guilty of this offence
and she was held entitled to prove her case and no court would be justified in quashing her
complaint.
3. Onkar Nath Mishra v. State (NCT of Delhi), has held that in the commission of offence of
criminal breach of trust, two distinct parts are involved. The first consists of the creation an
obligation in relation to property over which dominion or control is acquired by accused. The
second is a misappropriation or dealing with property dishonestly and contrary to the terms of
the obligation created.

Punishment for criminal breach of trust. (Section 406)

Whoever commits criminal breach of trust shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with both.

Analysis
In respect of public servants, a much more stringent punishment of life imprisonment or
imprisonment up to 10 years with fine is provided. This is because of special status and the
trust which a public servant enjoys in the eyes of the public as a representative of the
government or government owned enterprises. Under this section the punishment is severe and
the persons of fiduciary relationship have been classified as public servants, bankers, factors,
brokers, attorneys and agents.

1. Bagga Singh v. State of Punjab

The appellant was a taxation clerk in the Municipal Committee, Sangrur. He had collected
arrears of tax from tax-payers but the sum was not deposited in the funds of the committee
after collection but was deposited after about 5 months. He pleaded that money was deposited
with the cashier Madan Lal, a co-accused, who had defaulted on the same but the cashier
proved that he had not received any such sum and was acquitted by lower court. The mere
fact that the co-accused cashier was acquitted was not sufficient to acquit accused in the

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.34
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

absence of any proof that he had discharged the trust expected of him. As such the accused
was liable under section 409 of Indian Penal Code, 1860.

2. Bachchu Singh v. State of Haryana

The appellant was working as ‘Gram Sachiv’ for eight gram panchayats. He collected a sum of
Rs. 648 from thirty villagers towards the house tax and executed receipts for the same. As he
was a public servant, and in that capacity he had collected money as house tax but did not
remit the same, he was charged under Section 409 of Indian Penal Code, 1860. It was held
that the appellant dishonestly misappropriated or converted the said amount for his own use
and his conviction under section 409 of Indian Penal Code, 1860 was upheld by the Supreme
Court.

CHEATING (SECTION 415 TO 420)

Sections 415 to 420 of Indian Penal Code, 1860 deal with the offence of cheating.
Section 415 provides that whoever, by deceiving any person, fraudulently or dishonestly induces
the person so deceived to deliver any property to any person, or to consent that any person
shall retain any property, or intentionally induces the person so deceived to do or omit to do
anything which he would not do or omit if he were not so deceived, and which act or omission
causes or is likely to cause damage or harm to that person in body, mind, reputation or property,
is said to “cheat”.
A dishonest concealment of facts is a deception within the meaning of this section.
Illustration 1: A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and
thus dishonestly induces Z to let him have on credit goods for which he does not mean to
pay. A cheats.

Main Ingredients of Cheating:

The main ingredients of cheating are as under:
1. Deception of any person.
2. Fraudulently or dishonestly inducing that person:
i. to deliver any property to any person, or
ii. to consent that any person shall retain any property, or

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.35
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

iii. intentionally inducing that person to do or omit to do anything which he would not do or omit
if he were not so deceived, and which act or omission causes or is likely to cause damage or
harm to that person in body, mind, reputation or property.

The Supreme Court in Iridium India Telecom Ltd. v. Motorola Incorporated and Ors. has held
that deception is necessary ingredient under both parts of section. Complainant must prove
that inducement has been caused by deception exercised by the accused. It was held that
non-disclosure of relevant information would also be treated a misrepresentation of facts leading
to deception.

In T.R. Arya v. State of Punjab, it was held that negligence in duty without any dishonest
intention cannot amount to cheating. A bank employee when on comparison of signature of
drawer passes a cheque there may be negligence resulting in loss to bank, but it cannot be
held to be cheating.

Cheating by personation
As per section 416 a person is said to “cheat by personation” if he cheats by pretending to
be some other person, or by knowingly substituting one person for another, or representing
that he or any other person is a person other than he or such other person really is.
Illustration 1: A cheats by pretending to be a certain rich banker of the same name. A cheats
by personation.
Illustration 2: A cheats by pretending to be B, a person who is deceased. A cheats by
personation.

Punishment for cheating

Section 417 provides that whoever cheats shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine, or with both.
Cheating with knowledge that wrongful loss may ensue to person whose interest offender
is bound to protect
According to section 418, whoever cheats with the knowledge that he is likely to cause wrongful
loss to a person whose interest in the transaction to which the cheating relates, he was bound,

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.36
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

either by law, or by a legal contract, to protect, shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with both.

Punishment for cheating by personation

Section 419 states that whoever cheats 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.

Cheating and dishonestly inducing delivery of property

As per section 420 whoever cheats and thereby dishonestly 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, or anything which is signed or sealed, 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.
Simple cheating is punishable under section 417 of the IPC. Section 420 comes into operation
when there is delivery or destruction of any property or alteration or destruction of any valuable
security resulting from the act of the person deceiving.

1. In Kuriachan Chacko v. State of Kerala

The money circulation scheme was allegedly mathematical impossibility and promoters knew
fully well that scheme was unworkable and false representations were being made to induce
persons to part with their money. The Supreme Court held that it could be assumed and
presumed that the accused had committed offence of cheating under section 420 of the IPC.

2. In Mohd. Ibrahim and others v. State of Bihar and another

The accused was alleged to have executed false sale deeds and a complaint was filed by real
owner of property. The accused had a bonafide belief that the property belonged to him and
purchaser also believed that suit property belongs to the accused. It was held that accused
was not guilty of cheating as ingredients of cheating were not present.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.37
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

FRAUDULENT DEEDS AND DISPOSITIONS OF PROPERTY

Dishonest or fraudulent removal or concealment of property to prevent distribution among

creditors
Section 421 of the Indian Penal Code provides that whoever dishonestly or fraudulently removes,
conceals or delivers to any person, or transfers or causes to be transferred to any person,
without adequate consideration, any property, intending thereby to prevent, or knowing it to be
likely that he will thereby prevent, the distribution of that property according to law among
his creditors or the creditors of any other person, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.

Ramautar Chaukhany v. Hari Ram Todi & Anr, held that an offence under this section has
following essential ingredients:
a. That the accused removed, concealed or delivered the property or that he transferred, it caused
it to be transferred to someone;
b. That such a transfer was without adequate consideration;
c. That the accused thereby intended to prevent or knew that he was thereby likely to prevent
the distribution of that property according to law among his creditors or creditors of another
person;
d. That he acted dishonestly and fraudulently.

Dishonestly or fraudulently preventing debt being available for creditors

Section 422 of the Indian Penal Code provides that whoever dishonestly or fraudulently prevents
any debt or demand due to himself or to any other person from being made available according
to law for payment of his debts or the debts of such other person, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.38
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Example
A is the Debtor and B is the creditor. A has to pay Rs. 1 crore
to B. But A do not have any money. But X, a person, who has
to pay INR 1 crore to A. If X pays back his money to A, A can
pay back that money to B. But A does not want to make the
payment to B and informs X not to pay any amount to B. This
is clearly a fraudulent intention and A is liable under section
422.

Commissioner of Wealth Tax v G.D. Naidu, it was held that the essential requisites of debt
are:
1. ascertained or ascertainable,
2. an absolute liability, in present or future, and
3. an obligation which has already accrued and is subsisting.

Dishonest or fraudulent execution of deed of transfer containing false statement of

consideration
Section 423 of the Indian Penal Code provides that whoever dishonestly or fraudulently signs,
executes or becomes a party to any deed or instrument which purports to transfer or subject
to any charge any property, or any interest therein, and which contains any false statement
relating to the consideration for such transfer or charge, or relating to the person or persons
for whose use or benefit it is really intended to operate, shall be punished with imprisonment
of either description for a term which may extend to two years, or with fine, or with
both.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.39
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Example
While making agreement of lease, the actual amount should
be entered is INR 5 crore but parties made the lease
agreement for only INR 4 crore just to avoid stamp duty
and other taxes. The parties are liable under section 423.

Dishonest or fraudulent removal or concealment of property

Section 424 of the Indian Penal Code provides that 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.
The essential ingredients to bring an offence under section 424 are as follows:
a. There is a property,
b. That the accused concealed or removed the said property or assisted in concealing or removing
the said property,
c. That the said concealment or removal or assisting in removal or concealment was done
dishonestly or fraudulently,
d. That the accused was entitled to a demand or claim,
e. That the accused released the same,
f. That he so released dishonestly or fraudulently.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.40
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

OFFENCES RELATING TO DOCUMENTS AND PROPERTY MARKS

Forgery (Section 463)
According to Section 463, whoever makes any false document or false electronic record or part
of a document or electronic record, with intent to cause damage or injury, to the public or to
any person, or to support any claim or title, or to cause any person to part with property, or
to enter into any express or implied contract, or with intent to commit fraud or that fraud
may be committed, commits forgery.

Section 465 provides the punishment for forgery and states that whoever commits forgery
shall be punished with imprisonment of either description for a term which may extend to two
years, or with fine, or with both.
A person is said to make a false document or false electronic record:
Firstly:
Whoever dishonestly or fraudulently–
a. makes, signs, seals or executes a document or part of a document;
b. makes or transmits any electronic record or part of any electronic record;
c. affixes any electronic signature on any electronic record;
d. makes any mark denoting the execution of a document.
with the intention of causing it to be believed that such document was made by the authority
of a person by whom or by whose authority he knows that it was not made.

Secondly:
Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters
a document or an electronic record in any material part thereof, after it has been made

Thirdly:
Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document
or an electronic record or to affix his electronic signature on any electronic record knowing that
such person by reason of unsoundness of mind or intoxication cannot, or that by reason of
deception practised upon him, he does not know the contents of the document or electronic
record or the nature of the alteration.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.41
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

1. Ramchandran v. State
It was has held that to constitute an offence of forgery document must be made with dishonest
or fraudulent intention. A person is said to do a thing fraudulently if he does that thing with
intent to defraud but not otherwise. The Supreme Court in Parminder Kaur v. State of UP, has
held that mere alteration of document does not make it a forged document. Alteration must
be made for some gain or for some objective.

2. Balbir Kaur v. State of Punjab

The allegation against the accused was that she furnished a certificate to get employment as
ETT teacher which was found to be bogus and forged in as much as school was not recognized
for period given in certificate. However, the certificate did not anywhere say that school was
recognized. It was held that merely indicating teaching experience of the accused, perse, cannot
be said to indicate wrong facts. So, the direction which was issued for prosecution is liable to
be quashed.

Offences relating to Property Mark

According to Section 479, a mark used for denoting that movable property belongs to a particular
person is called a property mark.
Section 482 provides the punishment for using a false property mark and states that whoever
uses any false property mark shall, unless he proves that he acted without intent to defraud,
be punished with imprisonment of either description for a term which may extend to one year,
or with fine, or with both.

DEFAMATION
Section 499 provides that whoever, by words either spoken or intended to be read, or by signs
or by visible representations, makes or publishes any imputation concerning any person intending
to harm, or knowing or having reason to believe that such imputation will harm, the reputation
of such person, is said, except in the cases hereinafter excepted, to defame that person.

Illustration 1: A says– “Z is an honest man; he never stole B’s watch”; intending to cause it
to be believed that Z did steal B’s watch. This is defamation.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.42
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Illustration 2: A draws a picture of Z running away with B’s watch, intending it to be believed
that Z stole B’s watch. This is defamation.

EXCEPTIONS TO DEFAMATION
1. Imputation of truth which public good requires to be made or published: It is not defamation
to impute anything which is true concerning any person, if it be for the public good that the
imputation should be made or published.
2. Public conduct of public servants: It is not defamation to express in good faith any opinion
whatever respecting the conduct of a public servant in the discharge of his public functions,
or respecting his character, so far as his character appears in that conduct, and no further.
3. Conduct of any person touching any public question: It is not defamation to express in good
faith any opinion whatever respecting the conduct of any person touching any public question,
and respecting his character, so far as his character appears in that conduct, and no further.
4. Publication of reports of proceedings of courts: It is not defamation to publish substantially
true report of the proceedings of a Court of justice, or of the result of any such proceedings.
5. Merits of case decided in Court or conduct of witnesses and others concerned:
Illustration 1: A says– “I think Z’s evidence on that trial is so contradictory that he must be
stupid or dishonest.” A is within this exception if he says this in good faith, inasmuch as the
opinion which he expresses respects Z’s character as it appears in Z’s conduct as a witness,
and no further.
6. Merits of public performance: It is not defamation to express in good faith any opinion
respecting the merits of any performance which its author has submitted to the judgment of
the public, or respecting the character of the author so far as his character appears in such
performance, and no further.
7. Censure passed in good faith by person having lawful authority over another: It is not
defamation in a person having over another any authority, either conferred by law or arising
out of a lawful contract made with that other, to pass in good faith any censure on the
conduct of that other in matters to which such lawful authority relates.
8. Accusation preferred in good faith to authorised person: It is not defamation to prefer in
good faith an accusation against any person to any of those who have lawful authority over
that person with respect to the subject-matter of accusation.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.43
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

9. Imputation made in good faith by person for protection of his or other’s interests:
A, a shopkeeper, says to B, who manages his business–“Sell nothing to Z unless he pays you
ready money, for I have no opinion of his honesty.” A is within the exception, if he has made
this imputation on Z in good faith for the protection of his own interests.
10. Caution intended for good of person to whom conveyed or for public good.

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.

KINDS OF DEFAMATION
The wrong of defamation is of two kinds- libel and slander.
In libel, the defamatory statement is made in some permanent and visible form, such as
writing, printing or pictures.
In slander it is made in spoken words or in some other transitory form, whether visible or
audible, such as gestures or inarticulate but significant sounds.

Sale of printed or engraved substance containing defamatory matter

Whoever sells or offers for sale any printed or engraved substance containing defamatory
matter, knowing that it contains such matter, shall be punished with simple imprisonment for
a term which may extend to two years, or with fine, or with both. To bring an offence under
section 502, it must be:
i. That the published material was defamatory as per section 499 of the IPC.
ii. That the published material was either printed or engraved.
iii. That the accused knew that such matter contained defamatory imputation.
iv. That the accused sold or offered for sale the defamatory matter.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.44
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

LIFE IS LIKE A MCQ, SOMETIMES IT’S THE CHOICE THAT CONFUSES YOU, NOT THE
QUESTION ITSELF. LET’S CRACK IT!

Important
Points

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.45
YES Academy YT
for Channel-
CS & LawYES Academy for CS
Mindset
& Lawis Everything… CS Executive – JIGL

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 7.46
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

CHAPTER 8- LAW RELATING TO EVIDENCE

INTRODUCTION
The Indian Evidence Act came into force on September 1, 1872, applying to all of India except
Jammu & Kashmir.
The "Law of Evidence" can be defined as a system of rules used to determine disputed facts
in legal proceedings. This system, which plays a crucial and challenging role in the court,
regulates the process of establishing the essential elements of rights or liabilities. It is governed
by a collection of rules and principles known as the "Law of Evidence."

The Indian Evidence Act, 1872 consolidates, defines, and amends the Law of Evidence.

Extension Indian Evidence Act, 1872 Extends to the whole of

India
Applicability (i) All Judicial proceedings in the court or before the
court.
(ii) Court Martials
Non-Applicability (i) Court Martial convened under the Army Act, the Naval
Discipline Act or the Indian Navy Discipline act, 1934
or the Air Force Act.
(ii) Affidavits presented to any Court or officer.
(iii) To proceedings before an arbitrator.

MEANING OF EVIDENCE AS PER INTERPRETATION CLAUSE OF INDIAN EVIDENCE ACT, 1872

The interpretation clause in the Indian Evidence Act, 1872 refers to Section 3 of the Act. It
provides definitions for various terms used within the Act, ensuring consistent and accurate
interpretation of the provisions.
The interpretation clause helps to clarify the meaning and scope of terms such as "evidence,"
"proved," "disproved," "relevant," "fact," "fact in issue," "document," "oral evidence," "admission,"
"hostile witness," and others.
It includes two types of evidences i.e., Oral Evidence and Documentary Evidence.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.1
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

• All statements which the court permits or

requires to be made before it.
Oral Evidence
• the statements are to be made by witnesses
i.e. Statements
• The statements should be related to a matter of
fact under inquiry.

• All the documents (including electronic records)

Documentary Evidence
produces for the inspection of the court.

a. 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. Evidence under Section 3 of the Indian Evidence Act, 1872 may
be either oral or personal i.e., all statements which the Court permits or requires to be made
before it by witnesses and documentary (documents produced for the inspection of the court),
which may be used in order to prove a certain fact (principal fact) which is in issue.

b. Generally, the rules of evidence are same in civil and criminal proceedings but there is a strong
and marked difference as to the effect of evidence in civil and criminal proceedings. In the
former a mere doubt of probability due regard being had to the burden of proof, is sufficient
basis of a decision, but in the latter, especially when the offence charged amounts to felony
or treason, a much higher degree of assurance is required. The persuasion of guilt must amount
to a moral certainty such as to be beyond all reasonable doubt.

DIFFERENT TYPES OF EVIDENCE

1. Proof of facts by oral evidence: Section 59 provides that all facts, except the contents of
documents or electronic records, may be proved by oral evidence. Further, section 60 mandates,
oral evidence must, in all cases whatever, be direct.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.2
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

Example Vikas has seen that Chirag has committed theft of the property of Yes Academy.
Vikas tells Harish that Chirag has committed the theft. Oral evidence may be given by Vikas,
who himself has witnessed the commission of crime.

2. Proof of contents of document: Section 61 states that the contents of documents may be
proved either by primary or by secondary evidence. Primary evidence means the document itself
produced for the inspection of the Court. Secondary evidence inter-alia includes certified copies,
copies made from the original by mechanical processes, copies made from or compared,
counterparts of documents. Section 64 states that documents must be proved by primary
evidence except in the cases provided under Section 65.

3. Evidence relating to electronic record: The contents of electronic records may be proved in
accordance with the provisions of section 65B which provides for law relating to Admissibility
of electronic records.

Sec Section 65B of the Indian Evidence Act allows electronic records to be admitted as evidence if
certain conditions are met, including proper maintenance and authentication through a
certificate.

SCHEME OF THE ACT, RELEVANCY AND ADMISSIBILITY

Fact

Relevant
Fact

Facts in
Issue

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.3
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

Fact
According to Section 3, “fact” means and includes:
a. anything, state of things, or relation of things capable of being perceived by the senses;
b. any mental condition of which any person is conscious.
Thus facts are classified into physical and psychological facts.

Illustrations
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith or
fraudulently, or uses a particular word in a particular sense, or is or was at the specified time
conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.

Illustrations (a), (b) and (c), are the examples of physical facts whereas the illustrations (d)
and (e) are the examples of psychological bids.

According to Section 5, evidence may be given in any suit or proceeding of the existence or
non-existence of every fact in issue and of such other facts as are hereinafter declared to be
relevant, and of no others. The Explanation attached to Section 5, however, makes it clear that
this section shall not enable any person to give evidence of a fact to which he is disentitled
to prove by any provision of the law.

Under the Indian Evidence Act, an example of a fact that a person may be disentitled to
prove by law is their own character or reputation in a criminal case.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.4
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

Relevant Fact
a. The connection between two facts is deemed relevant when they are linked in any of the ways
mentioned in the provisions of the Indian Evidence Act relating to the relevancy of facts
(Section 3).
b. In situations where direct evidence is unavailable to prove a fact in question, circumstantial
evidence can be used, and each piece of such evidence is considered a relevant fact.
c. There is a distinction between logical relevancy and legal relevancy. Logically relevant facts
have a causal relationship with each other, making the existence or non-existence of one likely.
d. However, not all logically relevant facts are legally relevant. Under the Act, relevancy is a
matter of law, and a fact, even if logically relevant, must be declared relevant by the Act to
be admissible as evidence.
e. Legal relevancy takes precedence over logical relevancy under the Indian Evidence Act, 1872.
f. It is important to consider legal relevancy rather than relying solely on common sense or pure
logic.
g. While a judge may use one fact as evidence of another in everyday life, they may rule it legally
irrelevant in court. Similarly, logically relevant facts may be excluded if they are deemed too
remote to be genuinely material to the issue at hand.

Logical Relevancy

Legal Relevancy

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.5
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

The diagram above depicts that every fact legally relevant will be found to be logically relevant;
but every fact logically relevant is not necessarily relevant under the Act as common sense or
logical relevancy is wider than legal relevancy.

Legal Relevancy and Admissibility

Relevancy and admissibility are not co-extensive or interchangeable terms. A fact may be
legally relevant, yet its reception in evidence may be prohibited on the grounds of public policy,
or on some other ground. Similarly, every admissible fact is not necessarily relevant.

Facts in Issue
According to Section 3 the expression “facts in issue” means and includes any fact from
which, either by itself or in connection with other facts, the existence, non-existence, nature
or extent of any right, liability, or disability, asserted or denied in any suit or proceedings,
necessarily follows.
Illustration
A is accused of the murder of B.
At his trial the following facts may be in issue:
• that A caused B’s death;
• that A intended to cause B’s death;
• that A had received grave and sudden provocation from B;
• that A at the time of doing the act which caused B’s death, was, by reason of unsoundness
of mind, incapable of knowing its nature.
A fact in issue is called as the principal fact to be proved or factum probandum and the
relevant fact the evidentiary fact or factum probans from which the principal fact follows. The
fact which imposes a right or liability is called ‘Fact in issue’.

Facts in issue and issues of fact

According to the Civil Procedure Code, the court must identify and formulate issues regarding
all disputed facts that are essential to the case. These issues are referred to as "issues of
fact," and their subject matter is always a "fact in issue." In the context of the Civil Procedure
Code, they are termed "issues of fact," while in the language of the Evidence Act, they are

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.6
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

referred to as "facts in issue." Therefore, the distinction between facts in issue and relevant
facts holds significant importance.

Facts in issue: In a contractual dispute case, the fact in issue could be whether Party
A breached the terms of the contract by failing to deliver the goods as agreed.
Issues of facts: Based on the above fact in issue, the court may frame issues of facts
such as:
1. Whether Party A had a contractual obligation to deliver the goods to Party B.
2. Whether Party A failed to deliver the goods within the specified timeframe.
3. Whether Party A provided a valid justification for the non-delivery of goods.
These issues of facts are the broader legal questions arising from the fact in issue and
need to be resolved by the court based on the evidence and arguments presented by the
parties.

No facts other than those having

rational probative value should be
admitted in evidence

Fundamental rules of Law of

Evidence
all facts having rational probative
value are admissible in evidence
unless excluded by a positive rule
of utmost inportance

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.7
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

PRESUMPTIONS

'May Presume'
The Court ‘may presume’ a fact as may be
provided by the Indian Evidence Act, unless
and until it is disproved or may call for proof
of it.

'Shall Presume'
The court shall presume a fact whenever it is
directed by this Act, and shall regard such
fact as proved unless and until it is disproved
(Section 4).

'Conclusive Proof'
when one fact is declared by this Act to be conclusive
proof of another, the court shall on the proof of the one
fact, regard the other as proved and shall not allow
evidence to be given for the purpose of disproving it.

Presumption has been defined as an inference, affirmative or affirmative of the existence of

some fact, drawn by a judicial tribunal, by a process of probable reasoning from some matter
of fact, either judicially noticed, admitted or established by legal evidence to the satisfaction
of the tribunal. It is an inference of the existence of some fact, which is drawn, without
evidence, from some other fact already proved or assumed to exist. Presumption is either of a
fact or law. These presumptions which are inference can always be rebuted. Presumption of
law is either conclusive or rebuttable.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.8
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

RELEVANCY OF FACT CONNECTED WITH THE FACT TO BE PROVED

The facts which fall under this category are as follows:

Res gestae or facts which though

not in issue, are so connected with Facts constituting the occasion, or
a fact in issue as to form a part effect of, or opportunity or state
of the same transaction of things (Section 7)
(Section 6)

Facts necessary to explain or

Motive, preparation and previous or
introduce relevant facts
subsequent conduct (Section 8)
(Section 9)

1. Res gestae or facts which though not in issue, are so connected with a fact in issue as
to form a part of the same transaction (Section 6)
Section 6 of the Indian Evidence Act incorporates the principle of admitting evidence related
to what is commonly referred to as "res gestae." In this context, acts or statements that
accompany a transaction or the facts in question are considered as part of the res gestae and
are allowed as evidence. The rationale for admitting such evidence lies in the spontaneity and
immediacy of the act or statement, recognizing their close connection to the event at hand.

Illustrations:
a. A is accused of the murder of B by beating him. Whatever was said or done by A or B or the
by-standers at the beating, or so shortly before or after it as to form part of the transaction,
is a relevant fact. The word ‘by-standers’ means the persons who are present at the time of
the beating and not the persons who gather on the spot after the beating
b. A is accused of waging war against the ‘Government of India’ by taking part in an armed
insurrection in which property is destroyed, troops are attacked and gaols are broken open. The

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.9
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

occurrence of these facts is relevant, as forming part of the general transaction, although A
may not have been present at all of them.
Thus, the evidence about the fact which is also connected with the same transaction, cannot
be said to be inadmissible.
The core principle of the doctrine of res gestae is that certain facts, even if not directly in
issue, are closely linked to the fact in issue and are therefore considered relevant. These
connected facts are part of the same transaction and are deemed significant in determining
the matter at hand.

2. Facts constituting the occasion, or effect of, or opportunity or state of things

(Section 7)
Section 7 of the Indian Evidence Act states that facts that are connected to relevant facts,
facts in issue, or the circumstances under which they occurred are considered relevant. This
includes facts that serve as the occasion, cause, effect, or opportunity for their occurrence or
transaction. In simpler terms, this section highlights that event, causes, effects, and
opportunities related to the relevant facts are considered important and admissible as evidence.

For example, in a case involving a car accident, the condition of the road (occasion) at the
time of the accident, the negligence of the driver (cause), the injuries sustained by the
parties (effect), and the availability of witnesses (opportunity) would all be relevant facts
under Section 7.

Illustrations:
a. The question is, whether A robbed B. The facts that, shortly before the robbery, B went to a
fair with money in his possession, and that he showed it, or mentioned the fact that he had
it, to third persons, are relevant.
b. The question is, 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.
c. The question is, whether A poisoned B.
The state of B’s health before the symptoms ascribed to poison, and habits of B known to A,
which afforded an opportunity for the administration of poison, are relevant facts. The above

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.10
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

transaction provides that, though they are not part of the same transaction, are relevant if
they are the occasions caused or effects of facts of an issue.

3. Motive, preparation and previous or subsequent conduct (Section 8)

According to Section 8 of the Indian Evidence Act, any fact that demonstrates or constitutes
a motive or preparation for a fact in issue or relevant fact is considered relevant.
For example, in a criminal case, the motive behind a person's action, which refers to what
drives them to act in a particular way, is relevant. While substantive law is generally not
concerned with motive, it is an important factor in every criminal investigation. Motive is a
psychological aspect that needs to be proven through circumstantial evidence.
Additionally, Section 8 makes the conduct of certain individuals relevant. Conduct refers to
behaviour. The conduct of the parties involved in a case is relevant if it is closely connected
to the case, proceeding, fact in issue, or relevant fact. If the court believes such conduct exists,
it should assist in reaching a conclusion on the matter at hand and influence the decision.
Whether the conduct occurred before or after the fact in issue is irrelevant, as long as it meets
these criteria.

Illustrations:
a. A is tried for the murder of B. The fact that A murdered C, that B knew that A had murdered
C and that B had tried to extort money from A by threatening to make his knowledge public,
are relevant.
b. The question is, whether a certain document is the will of A. The facts that, not long before
the date of the alleged will, A made inquiry into matters to which the provisions of the alleged
will relate that he consulted Vakils in reference to making the will, and that he caused drafts
of other wills to be prepared, of which he did not approve, are relevant.
c. The question is, whether A robbed B. The facts that, after B was robbed, C said in A’s presence
“the police is coming to look for the man who robbed B”, and that immediately afterwards A
ran away, are relevant.
d. A is accused of a crime. The facts that, after the commission of the alleged crime, he
absconded, or was in possession of property or the proceeds of property acquired by the crime,or
attempted to conceal things which were or might have been used in committing it, are relevant.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.11
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

4. Facts necessary to explain or introduce relevant facts (Section 9)

According to Section 9, such facts are:
i. which are necessary to explain or introduce a fact in issue or relevant fact, or
ii. which support or rebut an inference suggested by a fact in issue or relevant fact, or
iii. which establish the identity of a person or thing whose identity is relevant, or fix the time or
place at which any fact in issue or relevant fact happened, or
iv. which shows the relation of parties by whom any such fact was transacted, are relevant in so
far as they are necessary for that purpose.
Facts which establish the identity of an accused person are relevant under Section 9.

For example, in a murder trial, the facts explaining how the accused was present at the
crime scene (necessary to introduce a fact in issue) or providing evidence to rebute an
inference of guilt (supporting or rebutting an inference suggested by a fact in issue) would
be relevant under Section 9. Similarly, facts establishing the identity of the accused person,
such as fingerprints or DNA evidence, would also fall under the scope of Section 9.

Illustrations:
a. The question is, whether a given document is the will of A. The state of A’s property and of
his family at the date of the alleged will may be relevant facts.
b. A sues B for inducing C to break a contract of service made by him with A. C, on leaving A’s
service, says to A— “I am leaving you because B has made me a better offer”. This statement
is a relevant fact as explanatory of C’s conduct, which is relevant as a fact in issue.
c. A is accused of theft, is seen to give the stolen property to B, who is seen to give it to A’s
wife. B says as he delivers it - “A says you are to hide this”. B’s statement is relevant as
explanatory of a fact which is part of the transaction.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.12
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

STATEMENTS ABOUT THE FACTS TO BE PROVEED

The general principle, known as the hearsay rule, states that statements made about the fact
in question are considered irrelevant. However, there are three exceptions to this rule.

The hearsay rule under the Indian Evidence Act states that statements made by someone
other than the person testifying in court about a particular fact are generally considered
irrelevant and inadmissible as evidence. Hearsay refers to information or statements that
are relayed second-hand, rather than being based on first-hand knowledge.
For example, if a witness testifies in court that they heard someone else say that a
crime was committed, the statement would be considered hearsay. This is because the
witness is relaying information that they heard from another person, rather than directly
witnessing the crime themselves. As per the hearsay rule, such statements would generally
be excluded from consideration as evidence.

The three exceptions to the hearsay rule are:

1. Admissions and Confessions
Admissions
i. 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, and under the circumstances mentioned under Sections
18 to 20.
ii. Thus, whether a statement amounts to an admission or not depends upon the question whether
it was made by any of the persons and in any of the circumstances described in Sections 18-
20 and whether it suggests an inference as to a fact in issue or a relevant fact in the case.
iii. Thus, admission may be verbal or contained in documents as bills, receipts, letters, books etc.
iv. An admission may be made by a party, by the agent or predecessor-in-interest of a party, by
a person having joint property of pecuniary interest in the subject matter (Section 18) or by
a “reference”.
v. For example, the question is, whether a horse sold by A to B is sound. A says to B – “Go and
ask C, C knows all about it.” C’s statement is an admission. This is an example of reference.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.13
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

vi. An admission is the best evidence against the party making the same unless it is untrue and
made under the circumstances which does not make it binding on him.
vii. Admission means acknowledging something against the person making the admission. That is
why it is stated as a general rule (the exceptions are in Section 21), that admissions must be
self-harming; and because a person is unlikely to make a statement which is self-harming
unless it is true evidence of such admissions as received in Court.

Confessions
Sections 24 to 30 of the Indian Evidence Act pertain to confessions. However, the Act does
not provide a specific definition of a confession, but includes admissions within its scope.
Confessions are considered a particular type of admissions. While every confession is an
admission, not every admission qualifies as a confession. Sections 27 to 30 of the Act
specifically address confessions that the court will consider as evidence.

Admissions

Confessions

This shows that while every confession is an admission, every admission is not a
confession.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.14
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

A confession is relevant as an admission unless it is made:

Person in Authority by inducement, threat or to a person in authority in consequence of
promise some inducement, threat or promise held out
by him in reference to the charge against
the accused; or
Police Officer to a Police Officer; or

In custody of police officer without the to any one at a time when the accused is in
presence of magistrate the custody of a Police Officer and no
Magistrate is present

Thus, a statement made by an accused person if it is an admission, is admissible in evidence.

The confession is evidence only against its maker and against another person who is being
jointly tried with him for an offence. Section 30 is an exception to the general rule that
confession is only evidence against the confessor and not against the others. The confession
made in front of magistrate recorded is admissible against its maker is also admissible against
co-accused under Section 30.
A confession must, either admit, in terms the offence, or substantially all the facts which
constitute the offence. An admission of a gravely incriminating fact, is not of itself a
confession. For example, an admission that the accused was the owner of and was in recent
possession of the knife or revolver which caused a death with no explanation of any other
man’s possession of the knife or revolver. A confession cannot be construed as meaning a
statement by the accused suggesting the inference that he committed the crime.

According to Section 24, confession caused by inducement, threat or promise is irrelevant. To

attract the prohibition contained in Section 24 of the Evidence Act the following six facts
must be established:
i. that the statement in question is a confession;
ii. that such confession has been made by an accused person;
iii. that it has been made to a person in authority;

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.15
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

iv. that the confession has been obtained by reason of any inducement, threat or promise
proceeded from a person in authority;
v. such inducement, threat or promise, must have reference to the charge against the accused
person;
vi. the inducement, threat or promise must in the opinion of the Court be sufficient to give the
accused person grounds, which would appear to him reasonable for supposing that by making
it he would gain any advantage or avoid any evil of a temporal nature in reference to the
proceedings against him.
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. It is however for
the accused to create this doubt and not for the prosecution to prove that it was voluntarily
made. A confession if voluntary and truthfully made is an efficacious proof of guilt.

CONFESSIONS VS. ADMISSIONS

Admissions Confessions

1. Civil as well as criminal proceedings Only in criminal proceedings

2. Need not be voluntary Must be voluntary

3. Admissions can be made by an agent Confession can only be made by the

or even a stranger accused himself

Confessions are classified as judicial and extra-judicial.

Judicial confessions are those made before a Court or recorded by a Magistrate under Section
164 of the Criminal Procedure Code after following the prescribed procedure such as warning
the accused that he need not to make the confession and that if he made it, it would be used
against him. Extra-judicial confessions are those which are made either to the police or to any
person other than Judges and Magistrates as such. An extra-judicial confession, if voluntary,

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.16
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

can be relied upon by the Court along with other evidence. It will have to be proved just like
any other fact. The value of the evidence depends upon the truthfulness of the witness to
whom it is made.

Case Laws:
a. In the case of Ram Khilari v. State of Rajasthan, the Supreme Court ruled that if an extra-
judicial confession is made before a witness who is a close relative of the accused, and if the
testimony of that witness is reliable and truthful, then a conviction based on the extra-judicial
confession is appropriate.

b. In another case, the Supreme Court clarified that the law does not always require corroboration
of an extra-judicial confession. If the confession is supported by an independent witness who
is a responsible officer and has no personal bias against the accused, there is no reason to
doubt its veracity. Similarly, if the confession made by the accused to a friend is clear and
unambiguous in indicating the accused as the perpetrator of the crime, and if the friend's
testimony is truthful, reliable, and trustworthy, a conviction based on such an extra-judicial
confession is justified, without the need for additional corroboration. Minor discrepancies or
technical errors should not be given excessive importance.
In summary, the Supreme Court held that in certain circumstances, convictions based on extra-
judicial confessions can be valid without corroboration, provided the witness testimonies are
reliable and trustworthy, and any minor discrepancies should not undermine the overall
credibility of the evidence.

c. In the case of R. Kuppusamy v. State, the accused committed a murder and then confessed
his crime to the Vice-President of the Panchayat Board. The court stated that the well-
established legal provisions recognize that an extra-judicial confession can lead to a conviction,
provided the facts and circumstances of each case support it and the court is satisfied with
the reliability of the confession. The court emphasized that the decision on whether to consider
the extra-judicial confession as a basis for holding the accused guilty or not depends on the
circumstances surrounding the confession, the person to whom it was made, and the available
evidence regarding the truthfulness of the confession.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.17
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

Illustrations:
a. A undertakes to collect rents from C on behalf of B. B sues A for not collecting rent due from
C to B. A denies that rent was due from C to B. A statement by C that he owed rent to B,
is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B
b. The question between A and B is, whether a certain deed is or is not forged. A affirms that
it is genuine, B holds that it is forged. A may prove a statement by B that the deed is genuine,
and B may prove a statement by A that the deed is forged; but A cannot prove a statement
by himself that the deed is genuine, nor can B prove a statement by himself that the deed is
forged
c. A and B are jointly tried for the murder of C. It is proved that A said- “B and I murdered C”.
The Court may consider the effect of this confession as against B. This illustration exceptions
to the general rule that a confession is only evidence against the person who makes the
confession. These are based on Section 30 of the Act.

2. Statements made by persons who cannot be called as witnesses

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.

For example, let's say a murder case is being tried in court. The main witness to the crime,
who saw the defendant commit the murder, has passed away before the trial begins. In
such a situation, the court may allow the introduction of statements made by the deceased
witness before their death as evidence. These statements could be in the form of previous
testimonies, statements given to the police, or even statements made to friends or family
members about the incident. The court recognizes that it is not possible to call the deceased
witness to testify, and thus allows these statements as an exception to the general rule.

However, the following conditions must be fulfilled for the relevancy of the statements:
a. That the statement must relate to a fact in issue or relevant fact,
b. That the statement must fall under any of following categories:
i. the statement is made by a person as to the cause of this death or as to any of the
circumstances resulting in his death,

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.18
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

ii. Statement made in the course of business,

iii. Statement which is against the interest of the maker,
iv. a statement giving the opinion as to the public right or custom or matters of general
interest,
v. a statement made before the commencement of the controversy as to the relationship of
persons, alive or dead, if the maker of the statement has special means of knowledge on
the subject,
vi. a statement made before the commencement of the controversy as to the relationship
of persons deceased, made in any will or deed relating to family affairs to which any
such deceased person belongs,
vii. a statement in any will, deed or other document relating to any transaction by which a
right or custom was created, claimed, modified,
viii. a statement made by a number of persons expressing their feelings or impression,
ix. evidence given in a judicial proceeding or before a person authorised by law to take it,
provided that the proceeding was between the same parties or their representatives in
interest and the adverse party in the first proceeding had the right and opportunity to
cross examine and the questions in issue were substantially the same as in the first
proceeding.

Illustrations:
a. The question is, whether A was murdered by B; or A dies of injuries received in a transaction
in the course of which she was ravished. The question is, whether she was ravished by B; or
the question is, whether A was killed by B under such circumstances that a suit would lie
against B by A’s widow. Statements made by A as to the course of his or her death, referring
respectively to the murder, the rape and the actionable wrong under consideration are relevant
facts.
b. The question is as to the date of A’s birth. An entry in the diary of a deceased surgeon
regularly kept in the course of business, stating that, on a given day, he attended A’s mother
and delivered her of a son, is a relevant fact.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.19
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

c. The question is, whether A and B were legally married. The statement of a deceased clergyman
that he married them under such circumstances that the celebration would be a crime, is
relevant.

3. Statements made under special circumstances

The following statements become relevant on account of their having been made under special
circumstances:
a. Entries made in books of account, including those maintained in an electronic form regularly
kept in the course of business. Such entries, though relevant, cannot, alone, be sufficient to
charge a person with liability,
b. The following statements become relevant on account of their having been made under special
circumstances:
i. Entries made in books of account, including those maintained in an electronic form regularly
kept in the course of business. Such entries, though relevant, cannot, alone, be sufficient to
charge a person with liability,
ii. Statement as to fact of public nature contained in certain Acts or notification,
iii. Statement as to any foreign law contained in books purporting to be printed or published by
the Government of the foreign country, or in reports of decisions of that country.

Illustration:
A sues B for Rs. 1,000, and shows entries in his account books showing B to be indebted to
him to this amount. The entries are relevant, but are not sufficient, without other evidence, to
prove the debt.

For Example, in a financial fraud case, the prosecution presents entries from the company's
electronic accounting system as evidence. These entries reflect regular transactions and
financial records maintained in the course of the company's business operations. The entries
show a series of suspicious payments made by the accused individual.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.20
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

OPINION OF THIRD PERSON 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. These are:
1. Opinion of Experts
As a general rule the opinion of a witness on a question whether of fact, or of law, is irrelevant.
Witness has to state the facts which he has seen, heard or perceived, and noted the conclusion,
form of observations. The functions of drawing inferences from facts are a judicial function
and must be performed by the Court. Opinions of experts are relevant upon a point of:
(a) foreign law
(b) science
(c) art
(d) identity of hand writing
(e) finger impression special knowledge of the subject matter of enquiry become relevant.

Illustrations:
a. The question is, whether the death of A was caused by poison. The opinions of experts as to
the symptoms produced by the poison by which A is supposed to have died, are relevant.
b. The question is, whether a certain document was written by A. Another document is produced
which is proved or admitted to have been written by A. The opinions of experts on the question
whether the two documents were written by the same person or by different persons, are
relevant. Similarly, the opinions of experts on typewritten documents as to whether a given
document is typed on a particular typewriter is relevant.

2. Opinion of Examiner on Electronic Evidence

When in a proceeding, the court has to form an opinion on any matter relating to any
information transmitted or stored in any computer resource or any other electronic or digital
form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the
Information Technology Act, 2000, is a relevant fact. Explanation– For the purposes of this
section, an Examiner of Electronic Evidence shall be an expert.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.21
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

In a cybercrime case, the prosecution presents evidence of digital communication between

the accused and the victim. The court needs to determine the authenticity and integrity
of the electronic evidence, as well as interpret any technical aspects related to it. In such
a situation, the court seeks the opinion of an Examiner of Electronic Evidence, who is an
expert in the field of computer forensics and digital evidence analysis.
Based on their expertise, the examiner provides an opinion on the reliability, integrity, and
authenticity of the electronic evidence. This opinion is considered a relevant fact by the
court under Section 79A of the Information Technology Act, 2000, and helps the court in
forming its opinion regarding the admissibility and weight of the electronic evidence in
the case.

3. Facts which support or are inconsistent with the opinions of experts are also made
relevant.
The Facts which are not otherwise relevant becomes relevant if they support or are inconsistent
with the opinions of experts, when such opinions are relevant.

4. Others:
In addition to the opinions of experts, opinion of any other person is also relevant in the
following cases:
a. Opinion as to the handwriting of a person if the person giving the opinion is acquainted with
the handwriting of the person in question;
b. Opinion as to the digital signature of any person, the opinion of the Certifying Authority which
has issued the Digital Signature Certificate
c. Opinion as to the existence of any general right or custom if the person giving the opinion is
likely to be aware of the existence of such right or custom;
d. Opinion as to usages etc. words and terms used in particular districts, if the person has special
means of knowledge on the subject;
e. Opinion expressed by conduct as the existence of any relationship by persons having special
means of knowledge on the subject.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.22
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

WITNESSES
Who may Testify
All persons shall be competent to testify (Give evidence) unless the Court considers that they
are prevented from understanding the questions put to them, or from giving rational answers
to those questions:
1. by tender years,
2. extreme old age,
3. disease, whether of body or mind, or
4. any other cause of the same kind.

Suppose there is a criminal trial where the accused is charged with theft. During the
trial, the prosecution presents a witness who claims to have seen the accused
committing the theft. However, it is later discovered that the witness is a known lunatic
or mentally unstable individual.
In this case, the lunatic's testimony cannot be accepted as valid evidence under the
Indian Evidence Act. Due to their mental condition, their ability to perceive, recall, and
communicate accurate information may be compromised. Therefore, the court will not
consider their testimony as credible or admissible in determining the guilt or innocence
of the accused.

Witness unable to communicate

A witness who is unable to speak may give his evidence in any other manner. The requirement
is that he should make it intelligible (easy to understand) such as by writing or by signs.
However, such writing must be written and the signs made in open Court. The evidence so
given shall be deemed to be oral evidence.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.23
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

FACTS OF WHICH EVIDENCE CANNOT BE GIVEN (PRIVILEGED COMMUNICATIONS)

There are some facts of which evidence cannot be given though they are relevant, they are
also referred to as ‘privileged communications’

TYPES OF PRIVILEGED COMMUNICATIONS

Evidence of a Judge or Magistrate in regard Official communications;

to certain matters;

Communications during marriage; Source of information of a Magistrate or

Police officer or Revenue officer as to
commission of an offence or crime;
Professional communication between a client
Affairs of State; and his barrister, attorney or other
professional or legal advisor (Sections 126 and
129). This is not absolute and may waived by
the clients.

Evidence of Judges and Magistrates

Section 121 of the Act states that a Judge or Magistrate cannot be compelled to answer
questions regarding their own conduct in court or any information they acquired while serving
as a Judge or Magistrate, unless specifically ordered by a higher court to do so.

Communications During Marriage

Section 122 of the Act establishes a privilege for communication between spouses during
marriage, which means that such communication cannot be compelled to be disclosed. This
provision is rooted in the idea of preserving domestic harmony and trust within the marital
relationship.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.24
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

Evidence as to Affairs of State

Section 123 is applicable specifically to evidence obtained from unpublished official records
pertaining to State matters. As per Section 123, no individual is allowed to present any evidence
derived from such unpublished official records concerning State affairs, unless granted
permission by the authorized officer in charge of the relevant department. The officer holds
the discretion to grant or deny such permission as deemed appropriate.

Professional Communications
A client cannot be compelled and a legal adviser cannot be allowed without the express consent
of his client to disclose oral or documentary communications passing between them in
professional confidence. The rule is founded on the impossibility of conducting legal business
without professional assistance and securing full and unreserved communication between the
two.

ORAL, DOCUMENTARY AND CIRCUMSTANTIAL EVIDENCE

All facts except contents of documents or electronic records may be proved by oral evidence
(Section 59) which must in all cases be “direct”. The direct evidence means the evidence of
the person who perceived the fact to which he deposes. Thus, the two broad rules regarding
oral evidence are:

(i) all facts except the

contents of documents (ii) oral evidence must
may be proved by oral in all cases be “direct”
evidence

Oral evidence means statements which the Court permits or requires to be made before it by
witnesses in relation to matters of fact under inquiry. But if a witness is unable to speak, he
may give his evidence in any manner in which he can make it intelligible as by writing or by
signs.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.25
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

Direct Evidence
According to Section 60 oral evidence must in all cases whatever, be direct; that is to say:
a. if it refers to a fact which could be seen, it must be the evidence of a witness who
says he saw it,
b. if it refers to a fact which could be heard, it must be the evidence of a witness who
says he heard it,
c. if it refers to a fact which could be perceived by any other sense or in any other
manner, it must be the evidence of a witness who says he perceived it by that sense
or in that manner,
d. if it refers to an opinion or to the grounds on which that opinion is held, it must be
the evidence of the person who holds that opinion on those grounds.

In Section 60, the Act implicitly establishes the rule known as the hearsay rule while defining
direct evidence. This rule states that evidence regarding a fact, witnessed by someone other
than the person who actually saw it, is considered hearsay and not direct evidence. Similarly,
evidence concerning a statement made by someone who heard it is also classified as hearsay
rather than direct evidence.

Documentary Evidence
A “document” means any matter expressed or described upon any substance by means of
letters, figures or marks, or by more than one of those means, intended to be used, or which
may be used for the purpose of recording that matter. Documents produced for the inspection
of the Court is called Documentary Evidence. Section 61 provides that the contents of a
document must be proved either by primary or by secondary evidence.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.26
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

Primary
Evidence

Secondary
Evidence

Primary Evidence
"Primary evidence" refers to the actual document presented to the court for examination. The
principle that the best evidence should be provided, whenever possible given the circumstances
of the case, is considered a fundamental principle of the law of evidence. The general rule that
primary evidence should be presented for documents is often attributed to the best evidence
principle. This rule is supported by the presumption that if inferior evidence is presented when
better evidence is available, it may raise suspicion against the party withholding the superior
evidence.

Secondary Evidence
Secondary evidence typically takes the form of compared copies, certified copies, or copies
produced through reliable mechanical processes that guarantee accuracy. Section 63 of the Act
provides the definition and types of secondary evidence allowed. As per Section 63, "secondary
evidence" includes the following:
1. certified copies given under the provisions hereafter contained;
2. copies made from the original by mechanical processes which in themselves ensure the accuracy
of the copy, and copies compared with such copies;
3. copies made from or compared with the original;
4. counterparts of documents as against the parties who did not execute them;
5. oral accounts of the contents of a document given by some person who has himself seen it

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.27
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

Illustration:
A photograph of an original is secondary evidence of its contents, though the two have not
been compared, if it is proved that the thing photographed was the original.

Circumstantial Evidence
In English law, "direct evidence" refers to evidence directly related to the main fact to be
proven, while terms like "circumstantial evidence," "presumptive evidence," and "indirect
evidence" are used for evidence that supports secondary facts. However, under Section 60 of
the Evidence Act, "direct evidence" has a different meaning and doesn't exclude circumstantial
evidence that can be observed. Therefore, evidence, whether direct or circumstantial, is
considered "direct" under Section 60. When evaluating circumstantial evidence, the court should
consider whether the circumstances have been sufficiently proven and whether they collectively
establish the guilt of the accused. The court should not evaluate circumstantial evidence in
isolation but take an overall view of the matter.

BURDEN OF PROOF
When someone wants a court to make a judgment regarding a legal right or liability based on
certain facts they claim, it is their responsibility to provide evidence demonstrating the
existence of those facts. This principle is known as the burden of proof. The burden of proof
rests on the person who is obligated to establish the existence of a particular fact. In other
words, it is their duty to present sufficient evidence to convince the court that the facts they
assert are indeed true. The burden of proof determines the party responsible for presenting
evidence and convincing the court of the truthfulness of their claims.
For example, A desires a Court to give judgment that B shall be punished for a theft which A
says B has committed. A must prove that B has committed the theft.

PRESUMPTIONS
The Act acknowledges certain rules called presumptions. These rules are based on our
understanding and experience as humans, and they are derived from the connections,
relationships, and coincidences between facts and circumstances. It's important to note that a
presumption is not evidence in itself, but it does provide initial support for the party benefiting

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.28
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

from it. A presumption is a legal rule that allows courts or juries to draw a specific conclusion
from a certain fact or evidence, unless that conclusion is proven to be untrue. In other words,
a presumption creates a starting point for making inferences until evidence is presented to
prove otherwise.

Three Categories of Presumptions are:

1. Presumptions of law, it is 2. Presumptions of fact. it is

a rule of law that a particular a rule of law that a fact
inference shall be drawn by a otherwise doubtful may be
court from particular inferred from a fact which is
circumstances. proved.

3. Mixed presumptions, they

consider mainly certain
inferences between the
presumptions of law and
presumptions of fact.

For example, when we see a man knocked down by a speeding car and a few yards away, there
is a car going, there is a presumption of fact that the car has knocked down the man.

ESTOPPEL
The general rule of estoppel states that if someone intentionally leads another person to believe
something and act based on that belief, neither that person nor their representative can later
deny the truth of that thing in any legal case or proceeding involving both parties. However,
this rule does not apply when it contradicts a statute. If a statute specifies a particular method
or requirement, it must be followed accordingly.

Principle of Estoppel
a. Estoppel is based on the maxim ‘allegans contratia non est audiendus’ i.e. a person stating
contrary facts should not be heard.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.29
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

b. The principles of estoppel covers one kind of facts. It says that man cannot approbate and
reprobate, or that a man cannot blow hot and cold, which translates to, that a man shall not
say one thing at one time and later on say a different thing.
c. The doctrine of estoppel is based on the principle that it would be most inequitable and unjust
that if one person, by a representation made, or by conduct amounting to a representation,
has convinced another to act as he would not otherwise have done, the person who made the
representation should not be allowed to deny or repudiate the effect of his former statement
to the loss and injury of the person who acted on it
d. In Biju Patnaik University of Tech. Orissa v. Sairam College, one private university permitted
to conduct special examination of students prosecuting studies under one time approval policy.
e. After inspection, 67 students were permitted to appear in the examination and their results
declared. However, university declined to issue degree certificates to the students on the ground
that they had to appear for further examination for another condensed course as per syllabus
of university.
f. It was held that once students appeared in an examination and their results declared, the
university is estopped from taking decision withholding degree certificate after declaration of
results.

DIFFERENT KINDS OF ESTOPPEL

1. Estoppel by 2. Estoppel by 3.Constructive

attestation Contract estoppel

4. Estoppel by 5. Equitable 6. Estoppel by

election estopple negligence

7. Estoppel by
silence

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.30
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

ELECTRONIC EVIDENCE

Legal Framework for Electronic Evidence

a. Section 65A of the Evidence Act establishes the requirement for proving the contents of
electronic records as evidence according to the conditions set in Section 65B.
b. Accordingly, information contained in an electronic record that has been stored, recorded, or
copied as a computer output is considered a 'document' and can be admitted as evidence
without the need for further proof or production of the original, provided certain conditions are
met.
c. Section 65B(2) outlines the criteria for classifying information as a 'computer output.'
d. The provision in Section 65B(4) has led to conflicting interpretations. It states that if
electronic evidence is to be used in a judicial proceeding, a certificate must be presented that
identifies the electronic record and provides details about the device involved in producing the
electronic record. This certificate should be signed by a person holding a responsible official
position related to the operation of the relevant device or by someone involved in managing
the relevant activities. The signature on the certificate serves as evidence of its authenticity.

There was uncertainty regarding whether a certificate under Section 65B(4) was necessary
when presenting the original copy of an electronic record as evidence. Another question was
whether strict compliance with the provisions of Section 65B(4) was mandatory or if the
requirement for a certificate could be waived. The following case has provided clarity on this
matter.

Analysis of the Supreme Court Decision in Arjun v. Kailash

a. In, Supreme Court, the Court had to adjudicate on an election petition which challenged the
election of a candidate from Jalna-101 Legislative Assembly Constituency, on the ground that
the nomination papers were filed after the stipulated deadline.
b. The Respondents wished to rely on video camera recordings to prove that the candidate had
filed his nomination after the stipulated deadline.
c. The Election Commission produced CDs which contained a copy of the video camera recordings,
in accordance with the direction given by the High Court.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.31
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

d. However, the necessary certificates were not produced in accordance with Section 65B(4) by
the Election Commission, despite multiple requests made by the Petitioner.
e. During the cross examination, an officer of the Election Commission testified that the video
camera recordings were authentic. Based on this testimony, the High Court admitted the
evidence of the video recordings even though the certificate in accordance with Section 65B(4)
had not been produced.
f. The High Court held that it was satisfied that there was “substantial compliance” with Section
65B, as a competent officer had testified that the video recordings were authentic.
g. It was noted that Section 65B(1) differentiates between the ‘original’ electronic record, which
is contained in the computer in which the information is first stored and the secondary copies
that are made from the primary electronic record.
h. For instance, in the present case, the original electronic record would be the computer of the
Election Commission in which the video footage is first stored. The CDs where the content of
the video recording is copied shall constitute the secondary copies of the electronic record.
i. It was held that a certificate under Section 65B(4) shall have to be obtained only when the
secondary copies of the electronic record are produced before the Court. Production of a
certificate shall not be necessary when the original electronic record is produced.

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.32
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

j. LIFE IS LIKE A MCQ, SOMETIMES IT’S THE CHOICE THAT CONFUSES YOU, NOT THE
QUESTION ITSELF. LET’S CRACK IT!

Important
Points

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.33
YES Academy for CS and Law Mindset is Everything… CS Executive- JIGL

Adv Chirag Chotrani (B.com, LL.B. LL.M., Diploma in Corporate Law) YES ACADEMY, PUNE 8888 235 235 8.34
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

CHAPTER 9 – LAW RELATING TO SPECIFIC RELIEF

INTRODUCTION
The law relating to specific relief in India is provided in the Specific Relief Act of 1963. The
Specific Relief Act, 1963 was enacted to define and amend the law relating to certain kinds
of specific relief.

SPECIFIC RELIEF AND DEFENSE

RECOVERY OF SPECIFIC IMMOVABLE PROPERTY

According to Section 5 of the Specific Relief Act, 1963 a person entitled to the possession of
specific immovable property may recover it in the manner provided by the Code of Civil
Procedure, 1908. Such a suit is a general suit and the plaintiff has to prove that he has a
better title.

SUIT BY PERSON DISPOSSESSED OF IMMOVABLE PROPERTY

Section 6 provides that if any person is dispossessed without his consent of immovable property
otherwise than in due course of law, he or any person through whom he has been in possession
or any person claiming through him may, by suit, recover possession, notwithstanding any other
title that may be set up in such suit.
No suit under section 6 shall be brought:
a. after the expiry of six months from the date of dispossession; or
b. against the Government.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.1
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

No appeal shall lie from any order or decree passed in any suit instituted under section 6, nor
shall any review of any such order or decree be allowed.

RECOVERY OF SPECIFIC MOVABLE PROPERTY

Section 7 and 8 provide for recovery of specific movable properties.
As per Section 7, a person entitled to the possession of specific movable property may recover
it in the manner provided by the Code of Civil Procedure, 1908.

LIABILITY OF PERSON IN POSSESSION, NOT AS OWNER, TO DELIVER TO PERSONS ENTITLED

TO IMMEDIATE POSSESSION
Section 8 provides that any person having the possession or control of a particular article of
movable property, of which he is not the owner, may be compelled specifically to deliver it to
the person entitled to its immediate possession, in any of the following cases:
a. when the thing claimed is held by the defendant as the agent or trustee of the plaintiff;
b. when compensation in money would not afford the plaintiff adequate relief for the loss of the
thing claimed;
c. when it would be extremely difficult to ascertain the actual damage caused by its loss;
d. when the possession of the thing claimed has been wrongfully transferred from the plaintiff.

SPECIFIC PERFORMANCE OF CONTRACTS AND DEFENSE

Specific performance is an equitable remedy in contract law, whereby a court makes an order
requiring a party to perform a specific act, so as to compel the person to complete the
performance of the contract.

DEFENCES RESPECTING SUITS FOR RELIEF BASED ON CONTRACT

According to section 9, where any relief is claimed in respect of a contract, the person against
whom the relief is claimed may plead by way of defence any ground which is available to him
under any law relating to contracts.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.2
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

SPECIFIC PERFORMANCE IN RESPECT OF CONTRACTS

As per section 10 of the Act, the specific performance of a contract shall be enforced by the
court subject to the provision of Specific Relief Act, 1963

Katta Sujatha Reddy and Ors. vs. Siddamsetty Infra Projects Pvt. Ltd. and Ors.
a. Supreme Court decided, whether the amendment made to Section 10 of the Specific
Relief Act in 2018 is prospective or retrospective in nature. Court held that such
amendment of 2018 was prospective in nature.
b. We do not have any hesitation in holding that the 2018 amendment to the Specific
Relief Act is prospective and cannot apply to those transactions that took place prior
to its coming into force.
c. It is clear that the 2018 Amendment Act is prospective and cannot be applied to the
present set of facts.
d. Under the earlier law, grant of specific performance was discretionary. However, it
was mandated that such discretion ought to be used in a principled manner
without leaving scope for any arbitrary application.”

SPECIFIC PERFORMANCE OF PART OF CONTRACT

Section 12 deals with specific performance of a part of a contract. It lays down the general
principle that, the Court shall not direct the specific performance of a part of a contract, the
exceptions to this general rule are as follows:
1. Where the part which cannot be performed bears only a small portion:
a. where a party to a contract is unable to perform the whole of his part of it, but
the part which must be left unperformed bears only a small proportion to the whole in value
and admits of compensation in money, the Court may, at the suit of the either party, direct
the specific performance of so much of the contract as can be performed and award
compensation in money for the deficiency.
b. A contracts to sell B a piece of land consisting of 100 bighas. It turns out that 98 bighas of
the land belongs to A and the two remaining bighas to a stranger, who refuses to part with
them. The two bighas are not necessary for the use of enjoyment of the 98 bighas, nor so
important for such use or enjoyment that the loss of them may not be made in goods or in
money. A may be directed at the suit of B to convey to B the 98 bighas and to make

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.3
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

compensation to him. For not conveying the two remaining bighas; B may be directed at the
suit of A, to pay to A, on receiving the conveyance and possession of the land, the stipulated
purchase money less the sum awarded as compensation for the deficiency.

2. Where the part which cannot be performed forms a considerable portion:

It lays down that where a party to a contract is unable to perform the whole of his part of
it and the part which must be left unperformed either (a) forms a considerable part of the
whole, though admitting of compensation in money; or (b) does not admit of compensation
in money; he is not entitled to obtain a decree for specific performance; but the Court may,
at the suit of the other party, direct the party in default to perform specifically so much of
his part of the contract as he can perform, if the party :
(1) in a case falling under clause (a), pays or has paid the agreed consideration for the
whole of the contract reduced by the consideration for the part which must be left
unperformed and, in a case, falling under clause (b), pays or has paid the consideration for
the whole of the contract without any abatement, and
(2) in either case, relinquishes all claims to the performance of the remaining part of the
contract and all rights to compensation, either for the deficiency or for the loss or damage
sustained by him through the default of the defendant.

Example
A contracts to sell B, a piece of land consisting of 100 bighas for Rs. 1,00,000. It
turns out that only 50 bighas of land belong to A. 50 bighas are substantial part
of the contract.
A cannot demand specific performance of the contract but B can demand
specific performance to get 50 bighas of land from A by paying the full
consideration i.e. Rs. 1,00,000.

3. It further lays down that when a part of a contract which taken by itself, can be specifically
performed, stands on a separate and independent footing from another part of the same
contract which cannot be specifically performed, the Court may direct specific performance
of the former part.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.4
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

RIGHTS OF PURCHASER OR LESSEE AGAINST PERSON WITH NO TITLE OR IMPERFECT

TITLE
Section 13 lays down the rights of a purchaser or lessee against the seller or lessor with no
title or imperfect title.
It lays down that where a person contracts to sell or let certain immovable property having
no title or only an imperfect title, the purchaser or lessee, has the following rights, namely:
a. if the vendor or lessor has subsequently to the contract acquired any interest in the property,
the purchaser or lessee may compel him to make good the contract out of such interest;
b. where the acceptance of other person is necessary for validating the title, the purchaser or
lessee may compel him to procure such acceptance,
c. where the vendor professes to sell unencumbered property, but the property is mortgaged for
an amount not exceeding the purchase money and the vendor has in fact only a right to
redeem it, the purchaser may compel him to redeem the mortgage and to obtain a valid
discharge,
d. where the vendor or lessor sues for specific performance of the contract and the suit is
dismissed on the ground of his want of title or imperfect title, the defendant has a right to
a return of his deposit, if any, with interest thereon.
Above provision shall also apply, as far as may be, to contracts for the sale or hire of
movable property.

Contracts not specifically enforceable

Section 14 lays down the contracts which cannot be specifically enforced. The
following contracts cannot be specifically enforced, namely
a. where a party to the contract has obtained substituted performance of contract;
b. a contract, the performance of which involves the performance of a continuous duty
which the court cannot supervise;
c. a contract which is so dependent on the personal qualifications of the parties that
the court cannot enforce specific performance of its material terms; and
d. a contract which is in its nature determinable.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.5
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

WHO MAY OBTAIN SPECIFIC PERFORMANCE

Section 15 lays down that the specific performance of a contract may be obtained by:
a. any party thereto,
b. the representative,
c. where the contract is a settlement on marriage, or a compromise of doubtful rights between
members of the same family, any person beneficially entitled thereunder,
d. where the contract has been entered into by a tenant for life in due exercise of a power, the
remainder man,
e. a reversioner,
f. when a limited liability partnership has entered into a contract and subsequently becomes
amalgamated with another limited liability partnership, the new limited liability partnership
which arises out of the amalgamation.
g. when a company has entered into a contract and subsequently becomes amalgamated with
another company, the new company which arises out of the amalgamation;
h. when the promoters of a company have, before its incorporation, entered into a contract for
the purposes of the company, and such contract is warranted by the terms of the
incorporation, the company.

UNENFORCEABLE CONTRACTS
According to Section 16 Specific performance of a contract cannot be enforced in favour of a
person:
a. who has obtained substituted performance of contract
b. who has become incapable of performing, or acts in fraud of the contract.
c. Who fails to prove that he has performed or has always been ready and willing to perform
the essential terms of the contract which are to be performed by him,

Relief against parties and persons claiming under them by subsequent title
Section 19 lays down that specific performance of a contract may be enforced against:
a. either party,
b. any other person claiming under him by, except a transferee for value who has paid his
money in good faith and without notice of the original contract,

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.6
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

c. when a limited liability partnership has entered into a contract and subsequently becomes
amalgamated with another limited liability partnership, the new limited liability partnership
which arises out of the amalgamation,
d. when a company has entered into a contract and subsequently becomes amalgamated with
another company, the new company which arises out of the amalgamation,
e. when the promoters of a company have, before its incorporation, entered into a contract for
the purpose of the company and such contract is warranted by the terms of the
incorporation, the company. It may be noted that the company has accepted the contract
and communicated such acceptance to the other party to the contract.

SUBSTITUTED PERFORMANCE OF CONTRACTS, ETC.

a. where the contract is broken due to non-performance of promise by any party, the party who
suffers by such breach shall have the option of substituted performance through a third
party or by his own agency, and, recover the expenses and other costs actually incurred, from
the party committing such breach.
b. No substituted performance of contract shall be undertaken unless the party who suffers
such breach has given a notice in writing, of not less than thirty days, to the party in
breach calling upon him to perform the contract, and on his refusal or failure to do so, he
may get the same performed by a third party or by his own agency.
c. However, the party who suffers such breach shall not be entitled to recover the expenses,
unless he has got the contract performed through a third party or by his own agency.
d. Section 20 shall not prevent the party who has suffered breach of contract from claiming
compensation from the party in breach.

SPECIAL PROVISIONS FOR CONTRACT RELATING TO INFRASTRUCTURE PROJECT

No injunction shall be granted by a court in a suit under this Act involving a contract
relating to an infrastructure project, where granting injunction would cause delay in the
progress or completion of such infrastructure project.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.7
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

Special Courts
Section 20B empowers the State Government, in consultation with the Chief
Justice of the High Court, shall designate, by notification published in the Official
Gazette, one or more Civil Courts as Special Courts, within the local limits of the
area to exercise jurisdiction and to try a suit under this Act in respect of
contracts relating to infrastructure projects

EXPEDITIOUS DISPOSAL OF SUITS

A suit filed under the provisions of this Act shall be disposed of by the court within a period
of twelve months from the date of service of summons to the defendant.
The above stated period may be extended for a further period not exceeding six months.

POWER TO AWARD COMPENSATION IN CERTAIN CASES

The Court is empowered to award compensation in certain cases. They are as follows:
1. In a suit for specific performance of a contract, the plaintiff may also claim compensation
for its breach,
2. If, in any such suit, the court decides that specific performance ought not to be granted, but
that there is a contract between the parties which has been broken by the defendant, and
that the plaintiff is entitled to compensation.
3. The court decides that specific performance ought to be granted, but that it is not sufficient
to satisfy the justice of the case, and that some compensation for breach of the contract
should also be made to the plaintiff, it shall award him such compensation accordingly.
4. No compensation shall be awarded under this section unless the plaintiff has claimed such
compensation in his plaint. However, the court shall, at any stage of the proceeding, allow
him to amend the plaint.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.8
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

LIQUIDATION OF DAMAGES NOT A BAR TO SPECIFIC PERFORMANCE

According to Section 23, a contract, otherwise proper to be specifically enforced, may be so
enforced, though a sum be named in it as the amount to be paid in case of its breach and
the party in default is willing to pay the same, if the court, having regard to the terms of
the contract and other attending circumstances, is satisfied that the sum was named only
for the purpose of securing performance of the contract and not for the purpose of giving to
the party in default an option of paying money in lieu of specific performance.

RECTIFICATION OF INSTRUMENTS
Rectification means correction of an error in an instrument in order to give effect to the real
intention of the parties.
When, through fraud or a mutual mistake of the parties a contract or other instrument
in writing not being the articles of association of a company to which the Companies Act,
applies does not express their real intention, then:
b. either party or his representative in interest may institute a suit to have the instrument
rectified; or
c. the plaintiff may, in any suit in which any right arising under the instrument is in issue,
claim in his pleading that the instrument be rectified; or
d. a defendant in any such suit may, in addition to any other defence open to him, ask for
rectification of the instrument.
If, in any suit in which a contract or other instrument is sought to be rectified, the court
finds that the instrument, through fraud or mistake, does not express the real intention of
the parties, the court may in its discretion, direct rectification of the instrument so as to
express that intention, so far as this can be done without prejudice to rights acquired by
third persons in good faith and for value.
A contract in writing may first be rectified, and then if the party claiming rectification has
so prayed in his pleading and the court thinks fit, may be specifically enforced.
Relief for the rectification of an instrument shall not be granted to any party under this
section unless it has been specifically claimed.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.9
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

RESCISSION OF CONTRACTS (SECTIONS 27-30)

“Rescission” means putting an end to a contract which is still operative and making it null
and void ab initio. It does not apply to void contracts.
Any person interested in a contract may sue to have it rescinded, and such rescission
may be adjudged by the court in any of the following cases, namely:
a. where the contract is voidable or terminable by the plaintiff;
b. where the contract is unlawful for causes not apparent on its face and the defendant is
more to blame than the plaintiff.

The court may refuse to rescind the contract–

a. where the plaintiff has expressly or impliedly ratified the contract, or
b. where, owing to the change of circumstances which has taken place since the making of the
contract, the parties cannot be substantially restored to the position in which they stood
when the contract was made, or
c. where third parties have, during the subsistence of the contract, acquired rights in good faith
without notice and for value, or
d. where only a part of the contract is sought to be rescinded and such part is not severable
from the rest of the contract.

RESCISSION IN CERTAIN CIRCUMSTANCES OF CONTRACTS FOR THE SALE OR LEASE OF

IMMOVABLE PROPERTY, THE SPECIFIC PERFORMANCE OF WHICH HAS BEEN DECREED
Where in any suit a decree for specific performance of a contract for the sale or lease
of immovable property has been made and the purchaser or lessee does not, within the period
allowed by the decree, pay the purchase money or other sum which the court has ordered
him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to
have the contract rescinded and on such application the court may, by order, rescind the
contract.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.10
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

Where a contract is rescinded, the Court:

a. shall direct the purchaser or the lessee, if he has obtained possession of the property under
the contract, to restore such possession to the vendor or lessor; and
b. may direct payment to the vendor or lessor of all the rents and profits which have accrued
in respect of the property from the date on which possession was so obtained by the
purchaser or lessee.

If the purchase or lessee pays the purchase money or other sum which he is ordered
to pay under the decree within the period referred the court may, on application made in the
same suit, award the purchaser or lessee such further relief as he may be entitled to,
including in appropriate cases all or any of the following reliefs, namely:
a. the execution of a proper conveyance or lease by the vendor or lessor;
b. the delivery of possession, or partition and separate possession, of the property on the
execution of such conveyance or lease.

CANCELLATION OF INSTRUMENTS
Any person against whom a written instrument is void or voidable, and who has reasonable
apprehension that such instrument, if left outstanding may cause him serious injury, may sue
to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and
order it to be delivered up and cancelled.
If the instrument has been registered under the Indian Registration Act, 1908, the court
shall also send a copy of its decree to the officer in whose office the instrument has been
so registered; and such officer shall note on the copy of the instrument contained in his
books the fact of its cancellation.

WHAT INSTRUMENTS MAY BE PARTIALLY CANCELLED

where an instrument is evidence of different rights or different obligations, the court may, in
a proper case, cancel it in part and allow it to stand for the residue.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.11
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

DECLARATORY DECREES (SECTIONS 34-35)

A declaratory decree is a decree whereby any right as to any property or the legal character
of a person is judicially ascertained.

The Supreme Court in State of Madhya Pradesh v. Mangilal Sharma, held that a
declaratory decree merely declares the right of the decree holder vis-a-vis the
judgement debtor and does not in terms direct the judgement debtor to do or refrain
from doing any particular act or thing. It cannot be executed as it only declares the
rights of the decree-holder.

DISCRETION OF COURT AS TO DECLARATION OF STATUS OR RIGHT

a. Any person entitled to any legal character, or to any right as to any property, may
institute a suit against any person denying, or interested to deny, his title to such character
or right, and the court may in its discretion make therein a declaration that he is so
entitled, and the plaintiff need not in such suit ask for any further relief

b. It may be noted that court shall not make any such declaration where the plaintiff, being
able to seek further relief than a mere declaration of title, omits to do so.

EFFECT OF DECLARATION
A declaration made is binding only on the parties to the suit, persons claiming through them
respectively, and, where any of the parties are trustees, on the persons for whom, if in
existence at the date of the declaration, such parties would be trustees.

PREVENTIVE RELIEF (SECTIONS 36-41)

Preventive Relief means preventing a party from doing that which he is under an obligation
not to do. Preventive relief is granted at the discretion of the court by way of an injunction.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.12
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

a. Lord Halsbury defines injunction as “a judicial process whereby a party is ordered to refrain
from doing or to do a particular act or thing”.
b. The main difference between an injunction and specific performance is that the remedy in
case of an injunction is generally directed to prevent the violation of a negative act and
therefore deals not only with contracts but also with torts and many other subjects of purely
equitable one, whereas specific performance is directed to compelling performance of an
active duty.
c. It is known as a “judicial process by which one, is restrained from continuing or commencing
such wrongful act. Injunction is the most ordinary form of preventive relief

Characteristics of an injunction
(a) It is a judicial process.
(b) The object of this judicial process is to restrain or to prevent.
(c) The act restrained or prevented is a wrongful act.

TEMPORARY AND PERPETUAL INJUNCTIONS

1. Temporary injunctions are such as are to continue until a specific time, or until the further
order of the court
2. A perpetual injunction can only be granted by the decree made at the hearing and upon the
merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a
right, or from the commission of an act, which would be contrary to the rights of the
plaintiff.

PERPETUAL INJUNCTION WHEN GRANTED

A perpetual injunction may be granted to the plaintiff to prevent the breach of an
obligation existing in his favour, the court may grant a perpetual injunction in the following
cases, namely:
a. where the defendant is trustee of the property for the plaintiff;
b. where there exists no standard for ascertaining the actual damage caused;
c. where the invasion is such that compensation in money would not afford adequate relief;

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.13
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

d. where the injunction is necessary to prevent a multiplicity of judicial proceedings.

MANDATORY INJUNCTIONS
When, to prevent the breach of an obligation, it is necessary to compel the
performance of certain acts which the court is capable of enforcing, the court may in its
discretion grant an injunction to prevent the breach complained of, and also to compel
performance of the requisite acts.

DAMAGES IN LIEU OF, OR IN ADDITION TO, INJUNCTION

It states that the plaintiff in a suit for perpetual injunction under section 38, or mandatory
injunction under section 39, may claim damages either in addition to, or in substitution for,
such injunction and the court may, if it thinks fit, award such damages.
Relief for damages shall not be granted unless the plaintiff has claimed such relief in his
plaint.

INJUNCTION WHEN REFUSED

Section 41 gives a list of cases when injunction cannot be granted. It says that an injunction
cannot be granted:
a. to restrain any person from prosecuting a judicial proceeding pending at the institution of the
suit in which the injunction is sought,
b. to restrain any person from instituting or prosecuting any proceeding in a court not sub-
ordinate to that from which the injunction is sought,
c. to restrain any person from applying to any legislative body,
d. to restrain any person from prosecuting any proceeding in a criminal matter,
e. to prevent the breach of a contract the performance of which would not be specifically
enforced,
f. to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will
be a nuisance,
g. when equally efficacious relief can certainly be obtained,
h. if it would impede or delay the progress or completion of any infrastructure project,
i. when the plaintiff has no personal interest in the matter.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.14
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

INJUNCTION TO PERFORM NEGATIVE AGREEMENT

Where a contract comprises an affirmative agreement to do a certain act, coupled with a
negative agreement, express or implied, not to do a certain act, the circumstance that the
court is unable to compel specific performance of the affirmative agreement shall not
preclude it from granting an injunction to perform the negative agreement. It may be noted
that the plaintiff has not failed to perform the contract so far as it is binding on him.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.15
YES Academy for CS & Law Mindset is Everything…... CS Executive - JIGL

LIFE IS LIKE A MCQ, SOMETIMES IT’S THE CHOICE THAT CONFUSES YOU, NOT THE
QUESTION ITSELF. LET’S CRACK IT!

Important
Points

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 9.16
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

CHAPTER 10 - LAW RELATING TO LIMITATION

INTRODUCTION – LAW RELATING TO LIMITATION

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. The Act extends
to whole of India

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 that it cannot be enforced
by judicial process, in Bombay Dying & Mfg. Co. Ltd. v. State of Bombay. Thus, if a
claim is satisfied outside the Court of law after the expiry of period of limitation,
that is not illegal.

BAR OF LIMITATION
a. Section 3 of the Act provides that any suit, appeal or application if made beyond the prescribed
period of limitation, it is the duty of the Court not to proceed with such suits irrespective of
the fact whether the plea of limitation has been set up in defence or not. The provisions of
Section 3 are mandatory.
b. The question whether a suit is barred by limitation should be decided on the date of
presentation of the plaint.
c. The effect of Section 3 is not to deprive the Court of its jurisdiction. Therefore, decision of a
Court allowing a suit which had been instituted after the period prescribed is not vitiated for
want of jurisdiction.
d. A decree passed in a time barred suit is not a nullity.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 10.1
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

Noharlal Verma vs. District Cooperative Central Bank Limited, Jagdalpur,

The Supreme Court observed that, if the statute stipulates a particular period of limitation, no
concession or order would make an application barred by time to be within the limitation and the
authority had no jurisdiction to consider such application on merits.

S.M. Ghogbhai vs. Schedulers Logistics India Pvt. Ltd

In this case, the Appeal was filed against the order passed by National Company Law Tribunal,
Mumbai Bench filed by the Appellant under Section 9 of the Insolvency and Bankruptcy Code,
2016 was rejected as barred by time.
Tribunal dismissed the appeal

EXTENSION OF TIME IN CERTAIN CASES

Doctrine of Sufficient Cause

a. Section 5 allows the extension of prescribed period in certain cases on sufficient cause being
shown for the delay. This is known as doctrine of “sufficient cause”
b. Any appeal or any application may be admitted after the prescribed period if the appellant or
the applicant satisfies the court that he had sufficient cause for not preferring the appeal or
making the application within such period.
c. Thus, the Court may admit an application or appeal even after the expiry of the specified period
of limitation if it is satisfied with the applicant or the appellant, as the case may be as to
sufficient cause for not making it within time.
d. The Section is not applicable to suits. The Court has no power to admit a time barred suit
even if there is a sufficient cause for the delay. It applies only to appeals or applications as
specified therein.
e. The reason for non-applicability of the Section to suits is that, the period of limitation allowed
in most of the suits extends from 3 to 12 years whereas in appeals and application it does not
exceed 6 months. For the applicability of Section 5, the “prescribed period” should be over.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 10.2
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

Case Law
In Ramlal v. Rewa Coal Fields Ltd., the Supreme Court held that once the period of
limitation expires then the appellant has to explain the delay made thereafter for day by
day and if he is unable to explain the delay even for a single day, it would be deemed
that the party did not have sufficient cause for delay.

WHAT IS SUFFICIENT CAUSE AND WHAT IS NOT MAY BE EXPLAINED BY THE FOLLOWING
OBSERVATIONS:

1. Wrong practice of High Court which misled the appellant or his counsel in not filing the appeal
should be regarded as sufficient cause;
2. In certain cases, mistake of counsel may be taken into consideration in condonation of delay.
But such mistake must be bona fide;
3. Wrong advice given by advocate can give rise to sufficient cause in certain cases;
4. Mistake of law in establishing or exercising the right given by law may be considered as
sufficient cause. However, ignorance of law is not excuse,
5. Imprisonment of the party or serious illness of the party may be considered for condonation
of delay;
6. Time taken for obtaining certified copies of the decree of the judgment necessary to accompany
the appeal or application was considered for condoning the delay.
7. Non-availability of the file of the case to the State counsel or Panel lawyer is no ground for
condonation of inordinate delay.
8. Ailment of father during which period the defendant was looking after him has been held to
be a sufficient and genuine cause.
The quasi-judicial tribunals, labour courts or executive authorities have no power to extend
the period under this Section.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 10.3
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

The test of “sufficient cause” is purely an individualistic test. It is not an objective test.
Therefore, no two cases can be treated alike. The statute of limitation has left the
concept of ‘sufficient cause’ delightfully undefined thereby leaving to the court a well-
intended discretion to decide the individual cases whether circumstances exist
establishing sufficient cause. There are no categories of sufficient cause. The categories
of sufficient cause are never exhausted. Each case spells out a unique experience to be
dealt with by the Court as such.

PERSONS UNDER LEGAL DISABILITY

1. As per Section 6 When a person having the capacity to institute an action or to request the
execution of a decree is, at the time from which the prescribed period must be recognized, a
minor or insane or an idiot, he may institute the action or make a request within the same
period after the end of the disability.
2. Section 7 supplements Section 6 and Section 8 controls these sections, which serves as an
exception to Sections 6 and 7.
3. The combined effect of Sections 6 and 8 is that where the prescribed period of limitation
expires before the cessation of disability, for instance, before the attainment of majority, the
minor will no doubt be entitled to a fresh period of limitation from the attainment of his
majority subject to the condition that in no case the period extended by Section 6 shall by
virtue of Section 8 exceeds three years from cessation of disability, i.e., attainment of majority.
4. Sections 6, 7 and 8 must be read together. Section 8 imposes a limitation on concession
provided under Sections 6 and 7 to a person under disability up to a maximum of three years
after the cessation of disability.
5. Section 7 is only an application of the principle in Section 6 to a joint-right inherited by a
group of persons wherein some or all of whom are under the disability. The disability of all
except one does not prevent the running of time, if the discharge can be given without the
concurrence of the other. Otherwise, the time will run only when the disability is removed.
6. To apply Section 7, disability must exist when the right to apply accrued.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 10.4
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

7. In other words, Section 8 provides that in those cases where the application of Section 6 or 7
of the Act results in an extension of the period prescribed by Schedule, that extension is not
to be more than three years after the cessation of the disability.

Example
The limitation period for filling a suit is 12 years. When the limitation period commenced
X was minor of age 10 years, He will not get 12 years after cessation of minority. He
will get only 3 years due to bar of section 8 of the Limitation Act.

CONTINUOUS RUNNING OF TIME

1. According to Section 9 of the Act where once time has begun to run, no subsequent disability
or inability to institute a suit or make an application can stop it provided that where letters
of administration to the estate of a creditor have been granted to his debtor, the running of
the period of limitation for a suit to recover debt shall be suspended while the administration
continues.
2. It is based on the English dictum. “Time when once it has commenced to run in any case will
not cease to be so by reason of any subsequent event”. Thus, when any of the statutes of
limitation is begun to run, no subsequent disability or inability will stop this running.
3. The applicability of this Section is limited to suits and applications only and does not apply to
appeals unless the case fell within any of the exceptions provided in the Act itself.
4. For the applicability of Section 9 it is essential that the cause of action or the right to move
the application must continue to exist and subsisting on the date on which a particular
application is made.
5. If a right itself had been taken away by some subsequent event, no question of bar of limitation
will arise as the starting point of limitation for that particular application will be deemed not
to have been commenced.
6. Thus, time runs when the cause of action accrues. True test to determine when a cause of
action has accrued is to ascertain the time, when plaintiff could have maintained his action to
a successful result first if there is an infringement of a right at a particular time, the whole
cause of action will be said to have arisen then and there.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 10.5
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

COMPUTATION OF PERIOD OF LIMITATION

Exclusion of certain days or exclusion of time in legal proceedings
While computing Period of Limitation certain day/days are to be excluded.
Section 12 prescribes the time which shall be excluded in computing the time of limitation in
legal proceedings.
a. Computation of period of limitation for a suit, appeal or application: The day which is to
be excluded in computing period of limitation is the day from which the period of limitation is
to be reckoned. In case of any suit, appeal or application, the period of limitation is to be
computed exclusive of the day on which the time begins to run.
b. Computation of period of limitation for an appeal or an application for leave to appeal or
for revision or for review of a judgement: The day on which the judgement complained of
was pronounced and the time requisite for obtaining a copy of the decree, sentence or order
appealed from or sought to be revised or reviewed shall be excluded.
c. Computation of period for an application made for leave to appeal from a decree or order:
The time requisite for obtaining a copy of the judgement shall also be excluded.
d. Computation of Limitation period for an application to set aside an award: The time
required for obtaining a copy of the award shall be excluded

However, the time taken by the Court to prepare the decree or order before an application for
a copy is made shall not be excluded in computing the time for obtaining a copy of a decree
or an order

EXCLUSION OF TIME DURING WHICH LEAVE TO SUE OR APPEAL AS A PAUPER IS APPLIED

FOR
In computing the period of limitation prescribed for any suit or appeal in any case where an
application for leave to sue or appeal as a pauper has been made and rejected, the time during
which the applicant has been prosecuting in good faith his application for such leave shall be
excluded, and the court may, on payment of the court fees prescribed for such suit or appeal,
treat the suit or appeal as having the same force and effect as if the court fees had been
paid in the first instance.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 10.6
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

EXCLUSION OF TIME BONA FIDE TAKEN IN A COURT WITHOUT JURISDICTION

The relief to a person is given by Section 14 of the Act when the period of limitation is over,
because another civil proceeding relating to the matter in issue had been initiated in a court
which is unable to entertain it, by lack of jurisdiction or by any other like cause.

EXCLUSION OF TIME IN CERTAIN OTHER CASES

a. When a suit or application for the execution of a decree has been stayed by an injunction or
order, the time of the continuance of the injunction or order, the day on which it was issued
or made and the day on which it was withdrawn shall be excluded.
b. The time required to obtain the sanction or consent of the Govt. required, or a notice period
shall also be excluded in case of suits.
c. In a suit or an application for execution of a decree by any receiver or interim receiver or any
liquidator, the period beginning with the date of institution of such proceeding and ending with
the expiry of three months from the date of their appointment shall be excluded.
d. The time during which the defendant has been absent from India and from the territories
outside India administered by the Central Government, shall also be excluded.
e. In case of death of a person before the right to institute a suit accrues, the period of limitation
shall be computed from the time when there is a legal representative of the deceased capable
of instituting such suit or making such application. The same rule applies in case if defendant
dies.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 10.7
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

EFFECT OF ACKNOWLEDGEMENT ON THE PERIOD OF LIMITATION

Section 18 of the Act deals with the effect of acknowledgement of liability in respect of
property or right on the period of limitation.

The following requirements should be present for a valid acknowledgement as per Section
18:

There must be an admission or acknowledgement

Such acknowledgement must be in respect of any

property or right

It must be made before the expiry of period of

limitation

It must be in writing and signed by the party

against whom such property or rights is claimed

If all the above requirements are satisfied, a fresh period of limitation shall be computed from
the time when the acknowledgement was signed.

EFFECT OF PAYMENT ON ACCOUNT OF DEBT OR OF INTEREST ON LEGACY

As per Section 19 of the Act where payment on account of a debt or of interest on a legacy
is made before the expiration of the prescribed period by the person liable to pay the debt or
legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be
computed from the time when the payment was made.
According to the explanation appended to this Section:
a. where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce
of such land shall be deemed to be a payment;
b. ‘debt’ does not include money payable under a decree or order of a court.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 10.8
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

Thus, 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.

ACQUISITION OF OWNERSHIP BY POSSESSION

Section 25 applies to acquisition of easements. It provides that the right to access and use of
light or air, way, watercourse, use of water, or any other easement which have been peaceably
enjoyed without interruption and for twenty years (thirty years if property belongs to
Government) shall be absolute and indefeasible.

Ravinder Kaur Grewal and Ors. vs. Manjit Kaur and Ors.
In this case, the question was whether a person claiming the title by virtue of adverse
possession can maintain a suit Under Article 65 of Limitation Act, 1963 for declaration
of title and for a permanent injunction seeking the protection of his possession
thereby restraining the Defendant from interfering in the possession or for restoration
of possession in case of illegal dispossession by a Defendant whose title has been
extinguished by virtue of the Plaintiff remaining in the adverse possession or in case
of dispossession by some other person? Court held that there is no bar under
Limitation Act, 1963 to file a suit. It stated that -
“In our opinion, consequence is that once the right, title or interest is acquired it can
be used as a sword by the Plaintiff as well as a shield by the Defendant within ken
of Article 65 of the Act and any person who has perfected title by way of adverse
possession, can file a suit for restoration of possession in case of dispossession….

We hold that plea of acquisition of title by adverse possession can be taken by

Plaintiff Under Article 65 of the Limitation Act and there is no bar under the
Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights
of a Plaintiff.”

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 10.9
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

LIMITATION AND WRITS UNDER THE CONSTITUTION

1. The Legislature may, without violating the fundamental rights, enact statutes prescribing
limitation within which actions may be brought or varying or changing the existing rules of
limitation either by shortening or extending time provided a reasonable time is allowed for
enforcement of the existing right of action.
2. The Statute of Limitation is not unconstitutional since it applies to right of action in future.
It is a shield and not a weapon of offence.
3. The State cannot place any hindrance by prescribing a period of limitation in the way of an
aggrieved person seeking to approach the Supreme Court of India under Article 32 of the
Constitution.
4. To put curbs in the way of enforcement of Fundamental Rights through legislative action
might well be questioned under Article 13(2) of the Constitution. It is against the State
action that Fundamental Rights are claimed.
5. The Limitation Act does not in terms apply to a proceeding under Article 32 or Article 226
of the Constitution.
6. But the Courts act on the analogy of the statute of limitation and refuse relief if the delay
is more than the statutory period of limitation.
7. Where the remedy in a writ petition corresponds to a remedy in an ordinary suit and latter
remedy is subject to bar of a statute of limitation, the Court in its writ jurisdiction adopts in
the statute its own rule of procedure and in absence of special circumstances imposes the
same limitation in the writ jurisdiction.

CLASSIFICATION OF PERIOD OF LIMITATION

Period of limitation for different purposes may be classified as follows:
Period of 30 years
The maximum period of limitation prescribed by the Limitation Act is 30 years and it is
provided only for three kinds of suits:
1. Suits by mortgagors for the redemption or recovery of possession of immovable property
mortgaged;
2. Suits by mortgagee for foreclosure;

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 10.10
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

3. Suits by or on behalf of the Central Government or any State Government including the
State of Jammu and Kashmir.

Period of 12 years
A period of 12 years is prescribed as a limitation period for various kinds of suits relating to
immovable property, trusts and endowments.

Period of 3 years
A period of three years has been prescribed for suits relating to accounts, contracts,
declaratory suits, suits relating to decrees and instruments and suits relating to movable
property.

Period varying between 1 to 3 years

The period from 1 to 3 years has been prescribed for suits relating to torts and other
miscellaneous matters and suits for which no period of limitation is provided in the schedule
to the Act.

Period in days varying between 10 to 90 days

The minimum period of limitation of 10 days is prescribed for application for leave to appear
and defend a suit under summary procedure from the date of service of the summons. For
appeals against a sentence of death passed by a court of session or a High Court in the
exercise of its original jurisdiction the limitation period is 30 days. For appeal against any
sentence other than a sentence of death or any other not being an order of acquittal, the
period of 60 days for the appeal to High Court and 30 days for appeal to any other Court is
prescribed. Period of leave to appeal as a pauper from the date of the decree is 60 days
when application for leave to appeal is made to the High Court and 30 days to any other
Court.

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 10.11
YES Academy for CS & Law Mindset is Everything… CS Executive - JIGL

LIFE IS LIKE A MCQ, SOMETIMES IT’S THE CHOICE THAT CONFUSES YOU, NOT THE
QUESTION ITSELF. LET’S CRACK IT!

Important
Points

Adv Chirag Chotrani (B.com, LLB, LLM, Diploma in corporate Law) YES Academy, Pune 8888 235 235 10.12