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JURISPRUDENCE – AN INTRODUCTION

1. Jurisprudence – its literal meaning

The word “Jurisprudence” is derived from the latin word “Jurisprudentia”. Literally, it means knowledge of law. “Juris” denoting Law and “Prudentia” knowledge”.

2. Jurisprudence – two definitions

(a) Holland defines Jurisprudence as the “formal science of positive law”.

(b) Allen describes it as the scientific synthesis of the essential principles of law.

3. Jurisprudence – its scope

According to Lloyd, Jurisprudence involves the study of general theoretical questions about the nature of laws and legal systems, about the relationship of law to Justice and morality and about the social nature of law.

4. Jurisprudence – its nature

It is one of the social sciences.

Henry C. Black has pointed out in his Law Dictionary that Jurisprudence is more a formal than a material science.

5. What is law?

(a) Jurisprudence deals with the principles of law, then the question that naturally arises is:- what is law?

(b) It is difficult to define `Law’. The jurists have not, however, given up their attempts to do so. The result is that each definition has emphasised a particular aspect of law. The theories upon which such multifarious definitions have been built up are often conflicting with one another. Moreover, none of such definitions is very precise and free from defect.

(c) A useful definition of law with which Administrators are professionally concerned

It will, however, be useful to advert to the definition of law as formulated by Salmond. It is fairly reasonable exposition of the concept of Law – law with which the Judges, the Magistrates, the administrators, the lawyers and the policemen are professionally concerned.

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(d) Salmond’s definition of law

In the words of Salmond “The law may be defined as the body of principles recognised and applied by the State in the administration of Justice. In other words, the law consists of rules recognised and acted on by Courts of Justice".

(e) Analysis of Salmon’s Definition

(i) Law consists of principles/rules(ii) Law presupposes State.(iii) Those rules, which are recognised and applied by the State,

may be called `Law’.(iv) To ascertain the true nature of Law, one should go to the Court

and not to Legislature.(v) The purpose of law is to secure justice. Law is the means

whereas Justice is the end.

NOTE State – Law without a state is not an impossibility but law in the modern sense presupposes the existence of State, which has chiefly four ingredients:

(a) Population(b) Territory(c) Government(d) Sovereignty

6. Law - Four other Formulations

a) Holland – “Law is a general rule of external human action enforced by a sovereign political authority”.

b) Austin – “Law is a command of the sovereign”.

c) According to the modern notion, law is an instrument of social change and progress. Roscoe Pound coined the phrase “social engineering” and described law as a tool of social engineering.

d) The Pollack quotes with approval the definition of Law as given in the Oxford English Dictionary. “The body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognises as binding upon its members or subjects”.

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7. i) Marxian view-point of Law:

(Quotations from the Authorities including that of R.W.M. Dias)

(a) “Law is an instrument used by the economic rulers to keep the masses in subjection”.

(b) “Law is a superstructure on an economic foundation”.

(c) “Law, being an instrument of domination, is to be done away with,

(d) not developed and elaborated”.

(e) “On the emergence of classless society, domination will cease, inequalities will vanish and with them, the State and the law will wither away”.

ii) Mahatma Gandhi’s views on Law were not different. He observed “Law is nothing but the convenience of the powerful”.

8. Justice – its simple meaning

(a) Justice consists in giving to every man or woman what he/she is entitled to get under the law. (based on the observation of Salmond)

(b) Justice is what appears just to the reasonable man or woman (founded upon the concept of Lord Wright).

9. What is Sanction?

i) According to Austin, Sanction is an element of Law. At this stage, the question that arises is: What is Sanction? Simply speaking, it is in the nature of penalty for disobedience. The notion of enforcement of law by the community implies some mechanism for securing compliance with the law. Sanctions are means to enforce obedience to law.

ii) Sanctions are evil consequences which persons violating law are made to suffer. If `A’ steals, he may be imprisoned. If `X’ commits breach of a contract, he becomes liable to pay damages.

iii) Sanction, however, does not fully explain why the law is generally obeyed. Sanction plays its part in dealing with a recalcitrant minority. Law is generally obeyed because of its acceptance by the people. Habit, respect for law and a desire to reap rewards which legal protection will bring, are the important factors contributing to that position. The role of sanction should not, however, be under-estimated.

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Different kinds of Sanctions recognized under the Law are shown below in a tabular form:

SANCTION (Legal)----------------------------------------------------------------------------------| |

Civil or Private Criminal or Public law| |

a) Damages a) Deathb) Nullity b) Deportationc) Costs c) Imprisonment for lifed) Restitution of Property d) Imprisonment for a terme) Specific Performance (e) Corporal punishment;

flogging, whipping,mutilation etc.

f) Injunction f) Fineg) Deprivation of civil rightsh) Forfeiture of property

__________________| |

Prohibitory Mandatory

10. Classification of Law: this is difficult

One classification is that which distinguishes substantive from procedural law.

Substantive Law defines the rights while the procedural law determines the remedies. This distinction is inaccurate.

Substantive Law creates rights, duties and liabilities,examples, Indian Contract Act, Transfer of Property Act etc.

The substantive part of Criminal law defines offences and prescribes punishments therefor.

The law of procedure is that branch of law, which deals with procedure, pleading, and proof, by which substantive law is applied in practice. It is also known as Adjective law. Example – Criminal Procedure Code, Indian Evidence Act, Civil Procedure Code.

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11. Another Classification of Law

Law|

-----------------------------------------------------------------------------------| |

Municipal or National Law International Law|

------------------------------------| |

Private Law Public Law| || |

a) Law of Persons a) Criminal Law

b) Law of Property b) Administrative Law

c) Law of Obligations c) Constitutional Law|

-------------------------------------| | |Contract Quasi Tort

Contract

d) Conflict of Laws

** Sources, acknowledged and authorities relied upon.

(i) Salmond(ii) Austin(iii) Roscoe Pound(iv) Dias(v) Holland(vi) Lloyd(vii) Pollock(viii) Decisions of the Supreme Court of India(ix) Black’s Law Dictionary

_____________________________Compiled and edited by Professor D. Banerjea

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NATURE AND PURPOSE OF LAW

(1) In the introductory session on “Law”, we endeavoured to introduce “Law” to the Officer-Trainees

(2) It may recalled that the difficulty in defining Law satisfactorly was touched upon.

(3) Therefore, we adverted to some authoritative definitions of Law, particularly those formulated by eminent Jurists like Johm Austin (1790-1859), John Salmond (1862-1924), and Roscoe Pound (1870-1964) and outlined their notions of Law. We also referred to the view points of Karl Marx and Mahatma Gandhi on Law.

(4) It was in that background that it has become necessary to understand the two essential aspects of Law, namely :

a) Nature of Law andb) Purpose of Law

(5) Views of the Social Scientists, Political Philosophers and Jurists on these two vital aspects of Law have not been uniform and unanimous. The various perceptions and conceptions, are indicated below for proper appreciation :

(6). Nature of Law

i) Law as a general rule of external Human action.

ii) Law as an instrument of Social Control.

iii) Law as a system of norms.

iv) Law as a command of the Sovereign.

v) Law as a means for securing Justice.

vi) Law as a tool of Social Engineering.

vii) Law as an agent of Social Change.

viii) Law as a Social Institution to satisfy Social Wants.

ix) Law as a Mechanism for resolution of conflicts.

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x) Law as a weapon of Domination, Oppression, Exploitation and Subjugation.

xi) Law as dictate of the Reason.

xii) Law as practice of the Courts.

(7). Purpose of Law

i) To maintain Order.

ii) To Protect rights.

iii) To preserve freedom.

iv) To bring about peaceful change (Change with stability).

v) To secure Justice.

vi) To resolve conflicts.

vii) To maximise the happiness of the greatest number with minimum of friction.

viii) To define relationship among the members of Society.

ix) To satisfy the interests of the Community and its members.

x) To set and strengthen values.

(8). Points to Reflect on

i) You can not learn law by learning Law.

i) Life is larger than Law.

iii) Law must run close to life.

iv) Law is not what it says but what it does.

v) Law is a social science.

vi) Laws grows and develops with the growth and development of the society.

vii) Law has a social mission.

viii) Law is neither right alone nor might alone but the perfect union of two.

ix) A Law, validly made, does not cease to be law, merely because it appears to

be unjust to a particular person.

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x) General speaking, Law is traditional and conservative and as such, it does not

lead but follows emerging social opinion.

xi) Occasionally, Law may play also a pioneering role in setting and/or

strengthening social values.

xii) (a) Without religion, there can be no morality.

(b) Without morality, there can be no law.

xiii) Law is imperative and as such, you can not opt out of it.

xiv) The means by which obedience to law is enforced is known as "sanction".

xv) Sanction, is however, not the only factor which impels people to obey law.

xvi) Sanction is really meant for the deviants and recalcitrants.

xvii) Law is coercive, because there is sanction behind each it.

xviii) Law is normative, as it lists out "Dos and Don'ts".

xix) Like any other science, Law is liable to be misused and abused.

xx) A Law can not be effectively implemented, unless it is backed by social

acceptance.

xxi) Law and Justice are not always on speaking terms.

xxii) The gap between Law and Justice is widening.

xxiii) Law has the same centre as morals but it has by no means the same

circumference.

xxiv) Law is a contradictory social reality.

xxv) Law is a social auditor.

xxvi) Law is for man and not man for Law.

xxvii) Nothing rankles more in the human heart than a broading sense of injustice.

xxviii) The life-blood of Law is not logic but experience.

xxix) The essence of Justice is not remote promise but ready performance.

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xxx) When mores are adequate, Laws are unnecessary and when mores are

inadequate, the Laws are useless.

xxxi) Law without justice is blind. Justice without law is lame.

Note :- Founded upon the ideas and observations of eminent jurists, great thinkers and outstanding Judges, whose significant contributions in the form of aforesaid formulations and expositions are gratefully acknowledged and respectfully compiled for creating legal awareness about amongst the young officers who have just joined Civil Services of India.

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SOURCES OF LAW

INTRODUCTION

“The law is one of the first and noblest human sciences; a science which does more to quicken and invigorate the understanding than all the other kinds of learning put together.” - Edmund Burke

For a complete understanding of the concept of law, it is also necessary to understand the sources of law. The expression source of law means the origin from which rules of human conduct come into existence and derive legal force or binding character.

There are two main sources of law i.e. legal and historical. Legal sources are recognised by the law itself. Legal sources are the only gates through which new principles can find entrance into the realm of law. Historical source operates only directly or indirectly.

I. Legal Source

By reference to their legal sources, there are four kinds of law:

A) Legislation: Enacted law having its source in legislation.B) Precedent : Case law having its source in precedent.C) Custom : Customary law having its source in custom of the society.D) Agreement: Conventional law having its source in agreement.

II. Historical Source

a) Opinion of Juristsb) Religionc) Ethics and Moralsd) Equity ande) Foreign Laws

A) LEGISLATION

Legislation is an important source of law. Legis means law and latum means making. Legislation put together means making of law.

Types of Legislation: There are two types of Legislation i.e. Supreme Legislation and Subordinate Legislation.

Supreme Legislation: Supreme legislation is one which precedes from the supreme or sovereign power of the state and incapable of being repealed by any

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legislative authority. UK Parliament is a supreme legislative body. Whatever the law passed by that is final and it can not be questioned in any British Court.

Subordinate Legislation: Law passed by any authority, other than sovereign body.

According to Salmond, the chief forms of subordinate legislation are five:

a) Colonial Legislation - Self-governance to the colonies controlled by Imperial Legislation.b) Executive Legislation - It is a legislation by delegation.c) Judicial Legislation - Administration by judiciary.d) Municipal Legislation - Local- self government.e) Autonomous Legislation - Organisation, association, corporation, clubs and churches.

This classification, supreme or subordinate legislation is not known in India. In India, the Constitution is supreme and not the Parliament.

Advantages of Legislation

a) Abrogate Power: It is not only source of Law but equally effective in increasing,

amending or annulling the existing law. It can undo what it has ill done, it can abolish what already exist.

b) Division of Labour: Making law by legislation, administration by executive.c) Declaration: Law should be known before it is applying and enforcing.d) Provision for future cases: It can make rules in anticipation for cases that

have not yet arisen. e) Codification: It is superior in form - brief, clear, easily accessible and

understandable. It is like coin of real ready for immediate use.f) Rule of Law: Legislation ensures rule of law.

B) PRECEDENT

Precedent means a case decided previously. It furnishes an authority which under many circumstances binds a court to make the same decision in future in a similar cases. It is a guidance or authority of past decisions for future cases which is an important and unique feature of English Law and followed by Common Law countries. USA, India, Australia, France, German and Italy have followed it.

Reasons for Acceptance of Precedent

Rejudicata proera tata accipitur means a thing adjudged should be taken once for all adjudged. The following are the advantages of president;

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1) Decided by the expert persons 2) Flexibility of law3) Convenience 4) Development of law scientifically5) Impartial6) Certainty

Binding Nature of Precedent on different Courts

Supreme Court: Art. 141 of the Constitution of India provides that law declared by the Supreme Court to be binding on all courts, within the territory. It is clear from the wordings of Article 141 that the law declared by the Supreme Court is binding on all courts in India.

Since 1955 the Supreme Court has been overruling its earlier decisions whenever it deems fit. In 1967 in the famous case of Golak Nath. v. State of Punjab, the Supreme Court overruled its two previous decisions Sankari Prasad v. Union of India, and Sajjan Singh v. State of Rajasthan. In both these cases, the Court had held that the power to amend the Constitution was contained in Article 368 and the word ‘law’ in Article 13 did not include an amendment of the Constitution which is made in exercise of constituent power of the Parliament. In Golak Nath v. State of Punjab (1967), however the Supreme Court reversed its previous decisions in the above cases and held that the power to amend the fundamental rights is not found in Article 368, but in the residuary power of Legislature, hence law made under Article 368 is subject to Article 13. The most important instance of the rule that the Supreme Court is not bound by its own previous decisions is furnished by the case which is popularly known as Fundamental Rights case, Keshavananda Bharti v. State of Kerla (1973), in which Supreme Court overruled Golaknath’s case.

High Court: High Courts have co-ordinate jurisdiction. Decision of one High Court has persuasive force over the other High Court. One may consider but it is not obligatory to follow.

Districts Courts: District Courts are bound by the decisions of the Supreme Court. District Courts of a State are, however, bound by the decisions of the High Courts of that State.

iv) Magistrate and Munsiff Courts: Magistrate’s Courts which are the courts of first instances for criminal cases and Munisif’s Courts which are the courts of first instances for civil cases are bound by the decisions of the Supreme Court, High Courts and District Courts of that State in which they are situated.

There are two components of precedent. They are;

a) Ratio decidendi: Ratio decidendi means reason for the decision, actual basis or rule of law interpreting the judgement as being binding. Conclusions reaching on the basis of material facts. It is ratio decindendi which is the basis of the authority.

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Ratio decidendi is a rule of law expressly or impliedly treated by the judges as a necessary step in reaching his conclusion. (Rupert Cross: Precedent in English Legal System, p. 86) Whole decision of judgement is not binding, only that part which is ratio decidendi is binding e.g., Ashby v. White; ((1703) 2 Lord Raym, 938)‘where there is a right there is a remedy; Rylands v. Fletcher, ((1868) LR. 3 H.L. 330) ‘strict liability’ and M.C. v. Union of India, (AIR 1987 SC 1086) ‘absolute liability’. The principle is that had it be like this, it would have been like this.

b) Obiter dicta: Obiter dicta are the observations made by the judge which are not essential for the decision reached. It is a decision by the way or opinion on some fact and it is not binding. It is a conclusion based on a fact, existance of which has not been determined by the courts. It has no binding effect. -Prof. Goodhart

Doctrine of stare decisis: Doctrine of stare decisis is another name for judical precedent. It is an abbreviation of the Latin phrase statre decisis et non quieta movere which means to stand by past decisions or precedents and not to disturb settle points. In general, the term stare decisis signifies that when a point of law has been once settled, by judicial decision, it forms a precedent which is not to be departed afterwards.

“Precedent is a few grains of precious metal bereaved in tuns of mud, while legislation is like a coin of realm, ready for use and delivery “ - Salmond’s Comment on the importance of legislation and precedent.

C) CUSTOM

Custom is also one of the important sources of law. It is one of the oldest forms of law making. Salmond says that Custom is to society what law is to state

What is Custom? .It is a body of rules, which have source and effect from a long defacto observation.

Salmond has given two reasons for acceptance of custom.

a) Custom is the embodiment of those principles which have commanded themselves to the social concerns as principles of justice and public utility.

b) Existence of established usages are the basis for rational expectations of its continuation in future. (e.g. Hindu Law, Mahammedan Law or Christian Law)

There is no authority in custom except following from generations to generations.

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Kinds of Custom: According to Salmond, a custom which has the force of law is of two kinds; Legal Custom and Conventional Custom;

a) Conventional Custom: Conventional custom applies in trade, contract between merchants only about rate and purchase, others by law merchants.

(b) Legal Custom: A legal Custom is one where legal authority is absolute. It has a force of law. They are not only recognised by law but also enforced by law. E.g., The rule of pre-emption in Mohammedan Law.

Legal custom can again be divided into two;

(1) Local Custom: Local custom is applicable only in a particular locality or region.

(2) General Custom: General custom is not limited to particular locality and apply generally to all class of persons. General customs are basis for most of the laws.

Essentials of Valid Custom

Following are the main tests given by Blackstone and Coke, essential to valid custom;

a) Continuos b) Peaceablyc) Certaintyd) Reasonablenesse) Ancientf) Conformity with the statute lawg) Not opposed to public policy; andh) Generality or universality

-Source of law springs from the will and power of the state.

D) AGREEMENT

Salmond says that the essential idea in an agreement is establishment of legal relationship between the parties. Hence agreement is also a source of law as it give rise to conventional law . He says that an agreement may be rendered invalid on any one or more of the following defects;

a) Incapacityb) Infirmityc) Illegalityd) Error or mistakee) Coercionf) Want of consideration

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II. HISTORICAL SOURCE

The following are the historical sources of law;

a) Opinion of the jurists b) Religionc) Ethics or Moralsd) Equitye) Foreign Laws.

a) Opinion of Jurists: Commentaries of Yagna Valky, Jeemuthavahana and Commentaries of Black Stone, published in 1765, opinions of jurists, Legal Professionals and text books Written by virtue of their experience and interest are also source of law.

b) Religion: In the early stages of most communities, religion was a source of law. Hindu Law principles and Mohammedan Law principles in India, even British could not change. Britishers used to appoint religions heads to be the members of Jury in deciding the cases as religion was considered a source of law. Without religion there cannot be morality, without morality there can be no law.

c) Ethics and Morals: Morals and ethics is a study of the Supreme God. Ethics are concerned with good and proper human conduct in the light of public opinion. It is a science of human conduct e.g., How man behaves? What should be the ideal human behaviour?

No law can be a good law, if it is not based on sound legal principles and ethical relations. e.g., Telling a lie may be immoral but it is not a crime. Law regulates human conduct, ethics provides rules for ideal human conduct.

Law and morality are very closely related each other. Law and morality act and react upon and mould each other. Morality acts as the basis of law, as the test of law and as the end of Law. When mores are adequate, laws are unnecesary and when mores are inadequate, the laws are useless.

d) Equity: Equity has been one of the important sources of law. It means the rules of fairness, justness, and what is reasonable. In the course of the application of the law, many a time, the judges feel that in some situations they have to apply certain principles of fairness or reasonableness to give a proper judgment. They feel some kind of legislative omission and even if there was no such omission, it is for the judges in some situation to decide, as to how the law should be applied in a particular case. This kind of situation is tackled by the judges by attracting the principles of reason and fairness. In English law, in the matters of transfer of property, contract, specific relieves, trusts, and in so many other class the judges have applied the principles of equity and thus have laid down new rules based on the principles of fairness or reason.

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Although in India, the principles of equity have been statutorily incorporated in so many laws, e.g., transfer of property, contract, sale of goods, specific relief and trust, still at times courts have to apply the principles of equity for giving a just and proper decision. The phrase “ justice, equity and good conscience” used in Privy Council decisions indicate equitable ideas.

Equity is indispensable in any intelligent administration of justice –Plato

The following are some of the equity principles developed in England and followed by Equity Courts. (also called as Court of Chancery)

1) He who comes equity must come with clean hand. 2) Delay defects equity.3) Where there are equal equities, the first in time shall prevail.4) Equity looks to the intent rather than form.5) Equity looks on that which ought to be done.

e) Foreign Law: Laws of USA, UK Australia, Canada, France are the basis to our laws. It is common that our lawyers, judges are quoting foreign judgements, in support of their views.

* * * * *

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NATURAL JUSTICE - AN INTRODUCTION

1. Natural Justice - What does it mean?

(a) The term “Natural Justice” may be equated with “procedural fairness” or “fair play in action”.

(b) It is concerned with procedure and it seeks to ensure that the procedure is just, fair and reasonable.

(c) It may be regarded as counterpart of the American “Due Process”.

(d) Justice Frankfurter has observed - “The History of liberty has largely been the history of the observance of procedural safeguards”.

(e) Natural Justice is rooted in the natural sense of what is right and wrong. It mandates the Adjudicator or the Administrator, as the case may be, to observe procedural fairness and propriety in holding/ conducting trial, inquiry or investigation or other types of proceedings or process.

2. The object of Natural Justice

The object of Natural Justice is to secure Justice by ensuring procedural fairness. To put it negatively, it is to prevent miscarriage of Justice.

3. The two fundamental principles of Natural Justice

There are two fundamental principles of Natural Justice. They are:

(i) Nemo Judex in Re Sua:None should be a Judge in his own cause.

(ii) Audi Alteram Partem

(a) Hear the other side.(b) Hear both sides.(c) No person should be condemned unheard.

Note : Lord Denning reduced these two principles to two words, namely, impartiality and fairness.

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4. Nemo Judex in Re Sua

The literal meaning of the expression has been given in paragraph 3 (i) above.

(a) What it really implies is that a Judge should be unbiased and impartial. If he has any kind of interest in the subject-matter or outcome of the dispute, he is not fit to be the Judge of that matter.

(b) The term “Judge”, in this context, ought to be given a liberal construction. It means and includes not only those who are designated as Judges such as High Court Judge, District Judge, Civil Judge, etc. but also all other authorities or public functionaries who are required to decide questions affecting or tending to affect the life, liberty or property or any other right of the citizens/ persons.

(c) It is a basic requirement of Natural Justice that the decision-maker should be free from bias. “Bias” is a condition of mind which influences or tends to influence decision. It means predisposition or prejudice which renders or is likely to render a Judge incapable of exercising his functions impartially.

(d) Bias disqualifies a person from acting as a Judge.

If a decision has already been given by such a person, it is liable to be invalidated/ nullified on the ground of “Bias”.

Bias vitiates judgement/ decision.

(e) Bias may be of various kinds of which specific mention may be made of personal bias, pecuniary bias and bias as to the subject-matter.

(f) A decision rendered by a judicial, quasi-judicial or purely Administrative authority may be challenged on the ground of “Bias”.

It is not necessary to prove that the Decision-Maker was actually biased. It may be enough to establish “Reasonable likelihood of Bias” or “Reasonable suspicion of Bias”.

(g) Illustrative Case

A suit was instituted by a Canal Company against a land owner in an English Court praying for declaration of title and injunction.

The suit was decreed by the Trial Judge (called Vice-Chancellor) in favour of the Canal Company.

The Landowner filed an appeal before the Lord Chancellor (First Appellate Court) against that decision. The appeal was heard by Lord Cottenham

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presiding over that first appellate Court. Lord Cottenham affirmed the decree in favour of the Canal Company.

The landlord thus lost in both the Courts, namely, Trial Court and First Appellate Court. He, therefore, took the matter to the House of Lords, the final Court of Appeal.

The decision of Lord Cottenham was challenged before the House of Lords on the ground that Lord Cottenham was a share-holder of the Canal Company. It was, however, not urged that Lord Cottenham was influenced by the interest (share) he had in the Canal Company.

The House of Lords set aside the decree passed by Lord Cottenham, holding that the maxim “None should be a Judge in his own cause” should be held sacred.

After having set aside the decree passed by Lord Cottenham, the House of Lords took upon itself the task of deciding the case on merits. The House of Lords affirmed the decree of the Trial Court (Vice-Chancellor). That was exactly what Lord Cottenham had done. Even then, his judgement was not allowed to stand because of this pecuniary interest in the Canal Company.

[Reference:- Dimes vs. Grand Junction Canal (1852) 3 HLC 759].

5. Audi Alteram Partem.

The literal meaning has been given in para 3 (ii) above. It consists of two components, namely, (i) Notice and (ii) Hearing.

(a) “Even God himself did not pass sentence upon Adam before he was called upon to make his defence”.

This quotation demonstrates that the principle of “audi alteram partem” is of ancient, nay, divine origin. It lays down clearly that nobody should be condemned unheard.

(b) To put it differently, no decision affecting the interest of a party should be made unless he has been given due notice and afforded reasonable opportunity of being heard.

(c) This opportunity should be fair and adequate and not formal and sham.

(d) What is a fair hearing will depend upon the facts and circumstances of each case.

(e) Illustrative case.

Ridge was the Chief Constable of Brighton. He was dismissed from service by the Watch Committee of the area. The Watch Committee was empowered

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by the Municipal Corporation Act to dismiss any constable whom it considered negligent in the discharge of his duty or unfit to perform his functions.

Ridge was not given either any notice of the charge or any opportunity of being heard, save and except that his solicitor addressed the Watch Committee on one occasion, after the order of dismissal had been passed.

Ridge challenged the order of his dismissal on the ground of failure of Natural Justice (denial of fair hearing) but lost in two successive Courts, namely, the Trial Court and the First Appellate Court.

He, therefore, moved the House of Lords in appeal. The appeal was contested by the Respondent. The arguments advanced on behalf of the Respondent (his adversary) were that his dismissal was a purely administrative action and as such, the principle of “audi alteram partem” was not applicable. It was also contended that the Act, under which the Watch Committee passed the order of his dismissal, did not provide for any hearing to be given.

The House of Lords rejected these arguments of the Respondent, allowed the appeal and set aside the dismissal of Ridge. It observed “he was impliedly entitled to prior notice of the charge against him and a proper opportunity of meeting it before being removed by the local police authority for misconduct”.

(Reference: Ridge vs. Baldwin - 1964 AC 40).

6. Subsidiary principles of Natural Justice

(a) As a corollary to the principle “None should be the Judge in his own cause”, another important principle that has been evolved is:-

“Justice should not only be done but manifestly and undoubtedly be seen to be done”.

This principle emphasises that persons entrusted with the task of administering justice should conduct themselves in such a way so that they may inspire the confidence of the contending parties and raise their image above all shadow of suspicion. Next to their being in fact impartial is the importance of their appearing so. Appearance of Justice is also of great significance.

(b) Another subsidiary principle that has been developed in aid of Natural Justice is the duty to give reasons.

Decision-makers should give reasons in support of their decisions.

In other words, their orders should be speaking orders.

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It helps mainly to check arbitrariness and to enable the superior authority to test the legality/ propriety of the decision. It also goes a long way to improve the quality of decision-making.

(c) The third subsidiary principle of Natural Justice that came to be recognised in certain cases may be expressed in the following form:-

“One who decides must also hear”.

This means that when a particular authority is competent to decide a matter, it is he who should hear the parties. One person hearing and another person deciding create divided responsibility which militates against the concept of Natural Justice.

This principle was applied by the Supreme Court of India in Gullapalli Nageshwara Rao vs. A.P. State Transport Corporation reported in AIR 1959 SC 308.

That was a case of nationalisation of certain bus routes. When the proposed scheme was published, the person affected filed objections. The objections were heard by the Secretary, Transport Department but the final decision was taken by the Chief Minister.

The Supreme Court quashed the order of the Chief Minister, insisting on the same person hearing and deciding.

This decision of the Supreme Court, it is submitted, is not only not in keeping with the practice of institutional decision-making followed in the Government departments, but it is also not cognizant of the realities of the field and complexities of the present day administration.

It should, however, be followed as far as possible, particularly when personal hearing is a statutory requirement.

7. Co-relationship between Law and Natural Justice.

(a) Law is the means, Justice is the end. Law may be substantive as well as procedural.

Natural Justice also aims at justice. It, however, concerns itself only with the procedure. It seeks to secure justice by ensuring procedural fairness. It creates conditions for doing justice.

(b) Natural justice humanises the Law and invests the Law with fairness.

(c) Natural Justice supplements the Law but can not supplant the Law.

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(d) Natural Justice operates in areas not specifically covered by the enacted law. An omission in statute, likely to deprive a procedure of fairness, may be supplied by reading into the relevant provision the appropriate principle of Natural Justice.

8. Applicability of the principles of Natural Justice to Judicial, quasi-judicial and administrative proceedings.

(a) The principles of Natural Justice were initially believed to be applicable to the judicial proceedings before a Court of Law.

(b) Thereafter, they were extended to quasi-judicial proceedings, upon the footing that the function involved duty to act judicially.

(c) The line of distinction between quasi-judicial and administrative proceedings, for the purpose of application of Natural Justice, gradually became blurred and ultimately, vanished.

(d) It was recognised that the description, “judicial”, “quasi-judicial” or “administrative” to a function, was not, by itself enough to settle the requirements of Natural Justice (Lord Reid in Ridge vs. Baldwin).

(e) The Supreme Court of India in State of Orissa vs. Dr. Binapani Dei (AIR 1967 SC 1269) observed:-

“Even an administrative order which involves evil consequences must be made consistently with the rules of Natural Justice.”

(f) This trend was not only maintained but also sharpened in A.K. Kraipak vs. Union of India (AIR 1970 SC 150) in which Supreme Court remarked “If the purpose of the rules of Natural Justice is to prevent miscarriage of justice, one fails to see why these rules should be made inapplicable to administrative enquiries”.

(g) The matter was carried further in C.B. Boarding and Lodging House vs. State of Mysore (AIR 1970 SC 2042) in which the Supreme Court laid down “It is not necessary to classify an action of the administrative authority as quasi-judicial or administrative because the administrative authority is bound to follow the principles of Natural Justice in any case !

(h) The Supreme Court in Maneka Gandhi vs. Union of India (AIR 1978 SC 597) declared “The law must, therefore, now be taken to be well-settled that even in an administrative proceeding, which involves civil consequences, the doctrine of Natural Justice must be held to be applicable”.

9. General Rules about Natural Justice and its principles

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(i) It should not, however, be supposed that all the principles of Natural Justice should have universal application and should be indiscriminately projected over each and every case.

(ii) Principles of Natural Justice are neither codified nor embodied.

(iii) What particular principle or principles of Natural Justice should be invoked in a given case will, to a great extent depend upon the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or the body of persons appointed for the purpose.

(iv) Whenever it is alleged that some principle of Natural Justice has been violated, the test to be applied to determine the issue is whether observance of that principle was necessary for a just decision on the facts of the case.

(v) Unnatural expansion of Natural Justice, without regard to the realities of the situation, is not warranted. This position has been accepted and affirmed by the Supreme Court of India in Hira Nath Misra vs. Principal, Rajendra Medical College (AIR 1973 SC 1260).

(vi) Principles of Natural Justice are flexible and amenable to situational modifications.

(vii) The standard of Natural Justice varies with circumstances, diminishing or increasing, as the situation may demand.

(viii) Even a post-decisional hearing, in emergent cases requiring prompt action of a preventive or remedial nature, may satisfy the requirement of Natural Justice.

(ix) There may be cases of exceptional nature to which the principles of Natural Justice need not be extended for over-riding considerations of Public Interest, Common Good, emergency, confidentiality etc. say for instance where a dangerous and dilapidated building is to be demolished, confidential nature of the surveillance Register maintained by the Police where prior hearing may be dispensed with.

(x) “The principles of Natural Justice are intended to serve the ends of Justice. If it can be shown that any of the principles will not serve the ends of Justice, “it must be dismissed”, for otherwise the servant becomes the master or the means becomes an end”.

This observation of H.M. Seervai, the eminent Jurist, is based on the principles enunciated in re K (Infant w s) - 1965 AC 201. I am tempted to quote it to submit, in respectful agreement with Seervai, that the decision of the Supreme Court in Hira Nath Misra vs. Rajendra Medical College should have been founded upon these principles. Some do not appear to be convinced of the cogency of the reasons actually advanced by the Supreme

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Court. I would urge them to reconsider the decision of the Supreme Court in the light of these principles. I believe that even those who may express some kind of reservation initially will ultimately agree that the case was rightly decided.

10. What happens if Natural Justice is violated ?

(a) If an action or a decision is taken in breach of Natural Justice, that becomes either void or voidable.

(b) The Courts have not taken a consistent and uniform stand on this point. It goes on fluctuating.

(c) The preponderance of authority is, however, in favour of the view that violation of Natural Justice renders a decision/ action void, that is, nullity.

(d) It appears that the Courts in deciding what reliefs should be granted in cases involving breach of Natural Justice, are guided by the requirements of Justice of the case, sense of pragmatism and consideration of the complexities involved including policy issues and third party interests.

Explanation : The terms “void” and “voidable” belong to the law of contract. When we say that a transaction is void, we mean that it has no legal force or effect. It is a nullity from the very inception. A voidable transaction implies that it is valid until it is annulled. It may be avoided at the option of the party entitled to do so.

Note : The law embodied in this monograph is substantially based on the decisions of the Supreme Court of India and the House of Lords, England.

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PRE-FACE TO THE CASE-STUDIES ON NATURAL JUSTICE

Natural justice occupies an area of crucial significance and great relevance to the Administrators. All the administrators are not very clear about the concept of natural justice. Some of them appear to be under the impression that the principles of natural justice are not applicable to administrative proceedings. A few administrators seem to believe that natural justice is an obstacle to effective and expeditious performance of administrative functions.

It is in this background that the following three case studies have been drawn up on the basis of three important cases decided by the Supreme Court of India. By and large, they cover the entire gamut of Natural Justice and capture the emerging trends. As training aids, they are designed:

(i) to promote adequate understanding of the concept of natural justice;

(ii) to facilitate its application to actual cases and thereby to help development of skills;

(iii) to familiarise the trainees with the new trends and emerging dimensions of natural justice;

(iv) to assist them in solving complicated questions of Law and fact involving natural justice;

(v) to impress upon the trainees that observance of natural justice adds to the quality of decision-making and enhances the credibility of the system; and last but not the least

(vi) to bring home to the trainees that the principles of natural justice are neither codified nor embodied and as such, all of them should not and need not be indiscriminately and mechanically adopted in each and every case without regard to the complex realities, because unnatural expansion of Natural Justice may result in failure of Justice.

These three case-studies have been specially selected, for they are possessed of immense potential to equip the trainees with the requisite knowledge and skill and also with values and attitudes, so that while administering and applying Law in any proceeding or inquiry or investigation, they ensure vindication of justice by adopting a procedure which is just, fair and reasonable.

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NATURAL JUSTICE (Three cases decided by the Supreme Court of India)

CASE NO. 1

Reference : A.K. Kraipak and others (Petitioners)vs

Union of India and others (Respondents)

Citation : AIR 1970 S.C. 150.

When the Constitution of India came into force (the 26th January, 1950), there were two All India Services, namely IAS and IPS in existence. Later on, another All India Service, known as I.F.S., was brought into being (1966).

Naturally, the question of recruitment to the newly-formed Indian Forest Service came up. Rules and Regulations were framed to provide for recruitment. Mention may be made of Indian Forest Service (Recruitment) Rules, 1966 and Indian Forest Service (Initial Recruitment)] Regulations, 1966. It was laid down that the Central Government would recruit to the IFS from amongst the members of the State Forest Services who might be adjudged suitable. For the purpose of selection, special selection Boards would be constituted for different areas. The Boards would prepare lists of suitable officers and forward them to the Central Government. The lists would, thereafter, be referred to the Union Public Service Commission by the Central Government along with the records of the Officers included in the list and also of other eligible officers of the State Forest Services not included in the List. The Union Public Service Commission would then, after proper evaluation, make such recommendations to the Central Government as it might deem fit. The officers recommended by the Commission would be appointed to the IFS subject to the availability of vacancy in the State Cadre concerned.

This was the background. One such special Selection Board was constituted for the State of Jammu and Kashmir. The Board consisted of the following members:-

(i) Shri M.A. Venkataraman, the nominee of the Chairman, UPSC.

(ii) Inspector-General of Forests, Govt. of India.

(iii) Chief Secretary to the Govt. of Jammu & Kashmir.

(iv) One Joint Secretary to the Govt. of India.

(v) Shri Naquishbund, the Acting Chief Conservator of Forests, Jammu and Kashmir.

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The Board met at Srinagar in May, 1967. No interview as conducted. The Board consulted the relevant records and selected 25 officers in the first instance. Subsequently, the Board added more names to the List of persons already selected.

The final list, thus prepared by the Board, was eventually accepted by the Union Public Service Commission. That list was then published.

It was that List that turned out to be a bone of contention and became the subject of litigation. The name of Shri Naquishbund appeared at the top of List. He had been promoted to the post of Chief Conservator of Forests in 1964. He was not yet confirmed in that post. There were officers, namely G.H. Basu, M.I. Baig and A.K. Kaul, who claimed that they were senior to him. Basu and Kaul had appealed to the State Government against their alleged supersession by Naquishbund in respect of the post of Chief Conservator of Forests. The appeal of Basu was still pending when the aforesaid List was made.

In that final List, the names of Basu, Baig and Kaul did not find any place. They felt very much aggrieved at their exclusion. Some other eligible officers including A.K. Kraipak also became extremely unhappy because they were also not selected. Some of them were serving as Conservators of Forests and Divisional Forest Officers. They filed petitions before the Supreme Court of India, challenging the validity of that List. They attacked it on various grounds but for the purpose of this case-study, reference would be made to the material contentions raised on behalf of the petitioners. Eminent advocates, like Mr. A.K. Sen, Mr. Frank Anthony and Mr. C.K. Daphtary appeared for the petitioners.

The thrust of the arguments advocated on behalf of the petitioners was that the selections, as reflected in the aforesaid list, were vitiated by gross violation of the principles of Natural Justice.

They contended that Naqishbund himself was a candidate for being considered in the context of such selection and as such, he was disqualified for acting as a member of the selection Board. His membership of the Board and participation in the process of selection introduced personal bias and militated against the Natural Justice, resulting in gross failure of Justice. The principle of Natural Justice on which they relied was that “a person should not be a Judge in his own cause.”

It was also urged on behalf of the petitioners that the Board was called upon to exercise quasi-judicial power and as such, it was bound to observe the principles of Natural Justice.

It was argued that the List in question was liable to be quashed on account of subversion of Natural Justice, arising out of personal bias of a member of the Selection Board.

The petitions were opposed by the Respondents, which included the Union of India. The Union of India was represented by Mr. Niren De, Attorney General of India. The case of the contesting Respondents was that the power given to and

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exercised by the Selection Board was a purely administrative power, because its duty was merely to select officers, who in its opinion, were suitable for being absorbed into the Indian Forest Service.

The Respondents pointed out that Mr. Naqishbund wholly withdrew himself from the deliberation of the Board when his case came up before it for consideration. He, therefore, did not take any part whatsoever in any discussion involving him and did not in any manner influence the decision of the other members.

The points sought to be made out by the Respondents may be formulated as follows:-

(a) The principles of Natural Justice do not apply to proceedings before Administrative Authorities.

(b) The withdrawal of and the consequent non-involvement of Naqishbund left not scope for holding that he acted as the Judge in his own cause.

(c) The Selection Board was a mere recommendatory body and ultimate appointment depended upon the decision of the Govt. of India taken in consultation with the UPSC. Hence, the List prepared by the Selection Board was not vulnerable to be called into question, as it was not final.

(d) In any event, all the selections made by that Board could not be vitiated. The cases of Basu, Baig and Kaul might however, be reviewed, if considered necessary.

Upon the pleadings of the parties and the rival contentions they raised before the Supreme Court, the points that fell for determination may be expressed as follows:-

(i) What is meant by “Natural Justice”.

(ii) What are the basic principles of Natural Justice?

(iii) Do they apply to proceedings of administrative/ executive nature?

(iv) Is there any distinction between quasi-judicial and administrative powers from the angle of applicability of the principles of Natural Justice?

(v) Was it really necessary to find out whether or not Naquishbund had actually been biased?

(vi) Was real likelihood of bias or even reasonable suspicion of bias sufficient to disqualify a person from deciding anything to the prejudice of anybody?

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(vii) Did the facts of the case attract the operation of the principle “a person should not be the Judge in his own cause”.

(viii) Was there any violation of Natural Justice in the case under consideration?

(ix) If so, were all the selections made by the Board bad?

(x) Was the entire list prepared by the Selection Board liable to be quashed?

Case No. II

Reference : Maneka Gandhi (Petitioner) vs

Union of India and another (Respondents)

Citation : AIR 1978 SC 597.

Smt. Maneka Gandhi had a passport for going abroad. It was issued to her on 1st June, 1976 under the Passports Act, 1967.

On 4th July, 1977, she received a letter from the Regional Passport Officer, Delhi. That letter conveyed to her the decision of the Government of India to impound her passport and called upon her to surrender the same within seven days. No reason was, however, assigned in support of the decision to impound the passport. What was disclosed is that it was done in public interest.

She wrote back to the passport officer demanding a copy of the statement of reasons as provided for under Section 10(5) of that Act. A reply came, not from the passport officer, but from the Minister of External Affairs, Govt. of India, on 6 th

July, 1977. The Government declined to furnish reasons for what was described as “in the interest of the general public”.

Thereupon, she filed a petition under Article 32 of the Constitution of India before the Supreme Court. She challenged the action of the Government in impounding her passport and declining to give reasons for doing so.

Her petition was resisted by the Union of India. A counter-affidavit was filed in Court on behalf of the Government in answer to the writ petition. It was divulged there that the petitioner’s passport was impounded because her presence in India was likely to be required in connection with proceedings before a Commission of Inquiry.

The challenge made by the petitioner was founded, among other things, upon the following grounds:-

(a) Section 10 (3) (a) of the Passport Act, which authorised the Passport Authority to impound a passport, was violative of the equality clause

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contained in Article 14 of the Constitution of India, because it conferred vague and undefined power.

(b) Her passport could not be impounded without giving her an opportunity of being heard in defence. The order was made in contravention of the rule of Natural Justice embodied in the maxim “Audi Alteram Partem”. Hence, the order of impounding was null and void.

(c) If Sec. 10 (3) were read in such a manner as to exclude the right of hearing, then it would be invalid on account of arbitrariness.

(d) Section 10(3) (c) also offended against Article 21 of the Constitution of India, since it did not prescribe any procedure within the meaning of that Article. Even if it was assumed that Section 10 (3) (c) prescribed a procedure, it was wholly arbitrary, unreasonable and unjust and therefore, not in compliance with the requirement of that Article.

On behalf of the Union of India, it was submitted that the order impounding the passport of the petitioner was perfectly justified and that the petition was without merits and ought to be dismissed. In the counter-affidavit filed on behalf of the Government of India, the various allegations made in the petition were denied.

It was contended that there was apprehension that the petitioner was attempting or was likely to attempt to leave the country and thereby hamper the functioning of the Commission of Inquiry.

It was urged on behalf of the Govt. of India that having regard to the nature of the action involved in the impounding of a passport, the “audi alteram partem: rule must be held to be excluded, because if notice were to be given to the holder of a passport and reasonable opportunity afforded to him/her to show cause, he/she might, immediately, on the strength of the passport, make good his/her exit from the country and thereby frustrate the very object of impounding.

Ultimately, the Attorney-General informed the Court that the Government of India was willing to hear the petitioner in respect of impounding of her passport. The promise was to give what might be described as “post-decisional hearing” and either to cancel or to confirm the order of impounding according to the results of such hearing.

In the circumstances, the Supreme Court, by a majority, did not think it necessary to formally interfere with the impugned order. The Supreme Court, however, gave its anxious consideration to the issues of law involved in that case and expressed its opinions thereon.

The important legal issues that came up for decision may be outlined as follows:-

(i) Should the rule of “audi alterm partem” be read into a statute which authorises an administrative body to decide to the prejudice of a person but

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does not expressly provide for a prior hearing to be given to the person likely to be affected by such decision?

(ii) Can absence of hearing before taking of a decision be adequately compensated by a post-decisional hearing?

(iii) Is mere prescription of some kind of procedure enough to comply with the requirements of Article 21 of the Constitution of India?

(iv) Should the “Law”, as contemplated in Article 21, embody the principles of natural justice?

(v) Has the Supreme Court of India injected into Article 21 the American concept of due process of law?

(vi) Should a procedure be “just” fair and reasonable in order to fulfill the demand of Article 21?

(vii) Is it incumbent upon an administrative authority to observe the principles of Natural Justice?

(viii) Are the principles of Natural Justice embodied or written rules?

(ix) Are they amenable to situational variations?

(x) What are the effects of breach of Natural Justice committed by an administrative authority?

Will you kindly determine these points of Law? They have been raised for you to decide.

Note - (Relevant portions of the Passport Act are reproduced in the Appendix - A.)

Case No. III

Reference : Hiranath Misra and others vs

Principal, Rajendra Medical College, Ranchi and another.

Citation : AIR 1973 SC 1260.

Hiranath Misra, Upendra Prasad Singh and two other students of Rajendra Medical College, Ranchi, were expelled from that College for two academic sessions. They were also ordered to vacate the hostel attached to the college where they used to reside. The orders of expulsion from the college and removal from the Hostel were passed against them by the Principal of that College. The circumstances which led to the passing of such orders are briefly set forth below:-

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The College has separate hostels for boys and girls. Hiranath and the three other male students lived in the Boys Hostel, along with other boys.

On the night between 10th and 11th June, 1972, some male students of the College were found sitting on the compound wall of the Girls Hostel. Later on at night, the Girls Hostel was raided by them, without clothes on them. They went near the rooms of some of the girls and tried to pull the hand of one of the girl students. Five of the male students climbed up along the drain pipes to the terrace of the Girls Hostel, where some girls were doing their studies. Those boy students indulged in misconduct. The girls raised an alarm, when they ran away.

On 14.6.72, the girls reported the matter to the principal in writing. On receipt of such complaint, the Principal constituted a committee to enquire into the allegations. The Enquiry Committee consisted of three members of the Faculty.

The Committee at first heard ten girls who had filed the complaint and recorded their statements. The girls recognised four male students as having taken part in the raid of their hostel on that night and molestation of some of them.

The concerned male students were thereafter called by the Committee one by one and the contents of the complaint explained to them. They were also given a written charge and directed to answer the charge. They were asked to write down whatever they had to say in reply to the charge.

The Committee, after enquiry, found four male students guilty of the charge levelled against them. The Committee submitted its report, to the Principal, recommending their expulsion from the College and removal from the Hostel. The Principal applied his mind, agreed with the finding of the Committee, accepted its recommendation and passed the orders mentioned hereinbefore.

The orders of the Principal were challenged before the Patna High Court by the four affected male students by filing a writ petition under Article 226 of the

Constitution of India. The Patna High Court, after hearing, dismissed their petition and affirmed the orders of the Principal.

Three of them including Hiranath approached the Supreme Court and sought to invoke its appellate jurisdiction under Article 136 of the Constitution. The Supreme Court admitted the appeal for hearing but at the end of hearing, found that there was no merit in the appeal. Hence, the Supreme Court dismissed the appeal and upheld the decision of the Patna High Court.

The Contentions raised on behalf of the expelled boy students before the Patna High Court and the Supreme Court were substantially identical. It was strenuously and vigorously argued by their counsel that the procedure adopted by the Enquiry Committee was unreasonable, unfair and unjust and it did not comply with

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the basic requirements of Natural Justice. It was submitted that the following acts of omission committed by the committee constituted flagrant violation of Natural Justice.

(a) that the enquiry, if any, was held behind their back.

(b) that they were not allowed to be present when the statements of the girls were recorded.

(c) that they were not given any opportunity of cross-examining the complainants/ witnesses with a view to testing their veracity.

(d) that the report of enquiry was not made available to them.

For the moment, assume yourself to be an Hon’ble Judge of the Supreme Court. Assume further that the case has come up before you for decision. Reflect on the Law bearing on the point. Take into account the facts of the case. Then, proceed to decide:- whether the order of the Principal is worthy of being upheld or liable to be set aside?

Remember, you are to address yourself to the following questions:-

(i) What are the principles of Natural Justice?

(ii) Are they inflexible and rigid in their application?

(iii) Do they admit of any situational variations?

(iv) Do you think that the procedure actually adopted in this case was sufficient to ensure procedural fairness?

(v) Is it a fit case where the technical rules of criminal trial in a Court of Law should be scrupulously adopted and strictly followed?

(vi) Will you, upon a careful consideration of the facts and circumstances of this case, hold that there was violation of Natural Justice or that what was actually done was a sufficient compliance with the requirements of Natural Justice?

(vii) Do you think that in your anxiety to vindicate Natural Justice, you should allow yourself to be a party to unnatural expansion of Natural Justice, irrespective of the realities of the situation and facts of life?

(viii) What is the object of Natural Justice?

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Appendix - A

Relevant portion of Section 10 (3) (c) of the Passport Act

10 (3):- The passport authority may impound or cause to be impounded or revoke a passport or travel document -

(a) .................

(b) .................

(c) “If the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public.”

“Section 10 (3) (c) enables the passport authority to impound or revoke a passport if the passport authority deems it necessary to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public.”

“Section 10 (5) requires the passport authority to record in writing a brief statement of the reasons for making an order under sub-sec. (1) or (3) and to furnish the holder of the passport on demand a copy of the same unless in any case the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such a copy.”

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RULE OF LAW - An Introduction

1. What it means

“Rule of Law” is a dynamic concept. It does not admit of being readily expressed. Hence, it is difficult to define it.

(b) Simply speaking, it means supremacy of law or predominance of law.

(c) Essentially, it consists of values.

(d) It is from the sacred soil of India that the Vedas had proclaimed:- “Law is the King of Kings, far more powerful and rigid than they, nothing can be mightier than Law, by whose aid, as by that of the highest monarch, even the weak may prevail over the strong”.

(e) Aristotle declared - “Rule of Law is preferable to that of an individual.” His notion of Rule of Law is that rulers and the ruled are equally subject to Law.

(f) In the thirteenth century, Henry de Bracton, an English Judge of great fame, asserted - “The King ought to be subject to Law, because the Law made him the King.” Edward Coke, an eminent Jurist and also an ardent admirer of Bracton, carried forward the battle against the absolute royal power to establish that the King was under the Law. That was the dominant thought on “Rule of Law” in England at that time.

(g) The name of Professor A.V. Dicey, an English Constitutional Expert of the nineteenth century, is associated with “Rule of Law” . It may not, however, be supposed that it was he who invented “Rule of Law”. He put his own construction upon “Rule of Law” and gave it precision and a positive content.

According to Professor Dicey, supremacy of Law, Equality before Law and absence of arbitrariness are the fundamental characteristics of the Rule of Law.

(h) “The Rule of Law stands for the view that decisions should be made by the application of known principles and Laws; in general, such decisions will be predictable and the citizen will know where he is” - Frank Committee Report (U.K. - 1957). This formulation was endorsed by the Supreme Court of India in S.G. Jaisinghani vs. Union of India and others (vide AIR 1967 SC 1427).

(i) Rule of Law may be defined as “the principles, institutions and procedures, not always identical, but broadly similar, which the experience and tradition of lawyers in different countries of the world, often having themselves

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varying political structures and economic backgrounds, have shown to be important to protect the individual from arbitrary Government and to enable him to enjoy the dignity of men” (Working Paper for the Conference on “The Rule of Law in a Free Society” organised by the International Commission of Jurists at New Delhi in 1959).

2. Foundation of the Rule of Law

(a) It is based on the respect for the supreme value of human dignity.

(b) It is designed to protect the individual against arbitrary exercise of power, wherever it may be found.

(c) It is aimed at harmonising the opposing notions of individual liberty and public order, personal freedom and social security.

3. Basic Principles of the Rule of Law

i) It is the law and not the individual or group of individuals which rules or governs the people.

ii) Law is supreme, above everything and everyone. Nobody is above law.

iii) Equality before Law and equal protection of Law.

iv) All things should be done according to Law and not according to whim.

v) Every man, whatever be his rank and condition, is subject to the ordinary law of the realm and is amenable to the jurisdiction of the ordinary tribunals.

vi) Govt. should be conducted within the framework of recognised rules which restrict discretionary powers.

vii) Discretionary powers should be exercised within reasonable limits set by law.

viii) No person should be made to suffer except for a distinct breach of law.

ix) Respect for Law.

x) Last but not the least, absence of arbitrary power. This is the heart and soul of “Rule of Law”

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4. Postulated pre-conditions for Rule of Law based on modern trends.

i) Representative and Responsible Government.

ii) Government capable of maintaining law and order.

iii) Government capable of creating appropriate social and economic conditions.

iv) Adequate safeguards against executive encroachment and abuse of power.

v) Certain minimum standards for Law conforming to the emerging human rights jurisprudence.

vi) Absence of retroactive penal law.

vii) Fair and Just Procedure.

viii) Speedy Trial in Criminal Cases.

ix) Equal access to Law.

x) Legal Aid to the Poor.

xi) Public Interest Litigation.

xii) Independent and impartial Judiciary.

xiii) Sound Legal Profession.

xiv) Authority of the Courts to test the administrative actions, by the standards of legality.

5. Rule of Law and the Constitution of India

(a) Rule of Law is one of the basic features of the Constitution of India.(Indira Gandhi vs. Raj Narain reported in AIR 1975 SC 2299).

(b) If there is one principle which runs through the entire fabric of the Constitution of India, it is the principle of Rule of Law.(S.P. Gupta vs. Union of India, AIR 1949 SC 149)

(c) In our country (India), the Rule of Law (which is a mark of democracy) prevails and the same has been guaranteed by the provisions of Part III and other provisions of the Constitution of India.(Director of Rationing vs. Corporation of Calcutta reported in AIR 1960 SC 1355).

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(d) What is necessary element of the Rule of Law is that Law must not be arbitrary, irrational and it must satisfy the test of reason.(Bachan Singh vs. State of Punjab reported in AIR 1982 SC 1325).

6. Discretion - what it is

(a) Discretion means the quality of being discreet.

(b) It pre-supposes that there are options/choices/ alternatives and the one, most appropriate and prudent in the given situation, is to be adopted by the administrative authority.

(c) It neither implies nor involves the whim or caprice of the authority.

(d) It should be exercised, not according to the sweet will but in accordance with the principles, due regard being had to the facts and circumstances of the case.

(e) It must be confined within clearly defined limits.

(f) It must not be used arbitrarily or oppressively or unreasonably.

(g) An administrator, in exercise of discretion, is to do not what he wants but what he ought to.

7. Rule of Law and Discretionary Powers.

(a) Prof. Diecy had thought earlier that all discretionary powers were antagonistic to and inconsistent with the Rule of Law. He was under the belief that discretion was bound to degenerate into arbitrariness.

(b) Later on, Prof. Diecy modified his opinion to a certain extent on that point. That apart, with the change in the concept of the role of the State and the consequent diversification and expansion of the governmental activities, it became clear that discretionary power was essential.

(c) Professor E.C.S. Wade in his introduction to the study of the Law of the Constitution has observed:-

“The administrator today is fully equipped with statutory powers and therefore has in law discretionary power wherewith to perform his branch of administrative activity in public interest.”

(d) Justice K.K. Mathew, in his book “Democracy, Equality and Freedom” has remarked - “Discretionary power is necessary to solve particular problems. Discretion is a tool indispensable for individualisation of Justice.”

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He has proceeded further to elaborate:

“Individualised Justice means Justice which is appropriate to the case and which is tailored to its needs.”

Discretion, now-a-days is, therefore a must and it is not regarded as opposed to the Rule of Law, provided that it is not unguided and uncontrolled and provided further that it is not exercised arbitrarily or unreasonably or unfairly.

8. Rule of Law and Judicial Review of administrative action

(a) Judicial Review is the mechanism for controlling administrative actions with a view to bringing them in conformity with the Rule of Law.

(b) Exercise of Discretionary power by an Administrative Authority must satisfy the test of reason, justice and fair play in action. Otherwise, it becomes liable to be struck down as bad and illegal.

(c) A discretionary power is to be exercised for the purpose for which it has been conferred. Otherwise, the administrative action taken shall not be sustained by the Court in the exercise of its power of judicial review.

(d) Discretion vested in any Administrative Authority can not be unguided, and unlimited. Government can not distribute at its sweet will or withhold arbitrarily largess or licence or contract. In fact, the arbitrariness is the sworn enemy of equality which has been enshrined in Article 14 of the Constitution of India.

9. Rule of Law and Rule by Law

These two terms are not identical. They connote two different, nay, opposite conditions. Hitler ruled Germany but his was a Government of an individual and not of Law. Constitutionalism was conspicuously absent, which according to S.A. de Smith, involves “not only the proposition that exercise of Governmental powers must be bound by rules but also that the Government is genuinely accountable to an entity or organ distinct from itself, where elections are freely held on a wide franchise at frequent intervals, political groups are free to organise in opposition to the Government in office and where there are effective legal guarantees of fundamental civil liberties enforced by an independent judiciary. Hence, the Hitler’s rule was at best an example of “Rule by Law” and not “Rule of Law”.

10. Rule of Law and the Poor

If the pre-conditions for establishment and sustenance of the Rule of Law as indicated in paragraph 4 do not exist and consequently, the benefits of the “Rule of Law” do not percolate to the poor and powerless, it will turn out to be an empty slogan and mere rhetoric. In such circumstances, “Rule of Law” stands the risk of being used as another mask for the Rule of a class.

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JUDICIAL REIVEW OF ADMINISTRATIVE ACTION

State Functions

1. It is customary to divide functions of Government into three classes (i) Legislative; (ii) Executive or Administrative; and (iii) Judiciary (Wade and Phillips).

The State functions are broadly therefore, divided into three categories:-

(i) Legislative;(ii) Judicial; and(iii) Administrative or Executive

2. On a cursory look on the provisions of the Constitution of India it appears that doctrine of separation of powers has been accepted and accordingly the Executive Powers are vested with the President, the legislative powers with the Parliament and the Judicial powers with the judiciary (Re Delhi Laws Act AIR 1951 SC 332; Indira Nehru Gandhi Vs. Raj Narain 1985 SC 2299).

3. The Constitution brings into existence different constitutional entities, namely, the Union, the States, and the Union Territories. It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without over stepping their limits. They should function within the spheres allotted to them (Golaknath Vs. State of Punjab AIR 1967 SC 1643).

4. Strictly speaking, the Constitution of India does not precisely demarcate the functions of the three organs of the State and there is certain measure of overlapping in their functions. It is well recognised that in a certain sphere the legislature is possessed of the judicial power, the executive possesses a measure of both the legislative and judicial functions and the Court, in its duty of interpreting the law, accomplishes in its perfected action a marginal degree of legislative exercise. Nonetheless a fine and delicate balance is envisaged under our Constitution between these primary institutions of the State (Bandhua Mukti Morcha Vs. Union of India AIR 1984 SC 802).

5. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another (Ram Jawaya Vs. State of Punjab AIR 1955 SC 549).

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6. Though, under Articles 53 (1) and 154 (1), the executive power of the Union and of the States is vested in the President and the Governors respectively, there is no corresponding provision vesting the legislative and judicial power in any particular organ.

Executive or Administrative Functions 1. The Executive or Administrative functions does not mean that these are

exclusively of executive or administrative character. As a matter of fact the administration is the meeting point of all the three types of Government functions namely Legislative, Judiciary or Administrative. Usually the Executive performs the residue of all those functions which are not vested in the other two branches of the Government i.e. legislature and judiciary.

This position has been well explained by the Supreme Court in Ram Jawaya Vs. State of Punjab AIR 1955 SC 540 and in this case Mukherjea CJ speaking for the Supreme Court has stated:

"It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remains after legislative and judicial functions are taken away:

2. The administration is a technical term referring to the same title of acts by which the will of the State is effectuated. It is a function of the Government as a whole in the broader sense, but, more particularly of the executive branch of the Government i.e., the residue left after the functions of the legislature and the judiciary are exhausted.

3. It is clear that a very wide area of activities is comprised within the sphere of 'administrative action' and that even though an administrative authority is an authority which is other than the Courts or the Legislatures of the country, the residuary functions of the Administration may be divided into three broad categories:-

(i) Quasi-Legislative;(ii) Quasi-judicial; and(iii) Purely Administrative

Quasi-legislative Functions

The legislative function of the executive which may be termed as quasi-legislative function consists of making subordinate legislation in the form of making of:-

Rules Regulations Bye-laws

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Scheme

Illustrations of Quasi-Legislative Functions

Fixation of price Declaration of a place to be a market yard Imposition of tax Establishment of Municipal Corporation under the statutory provisions Extension of limits area of a town committee, etc. All India Services (Conduct) Rules, 1968 All India Services (Discipline & Appeal) Rules, 1969.

Quasi-Judicial Functions

According to the Committee on Ministers' Powers, a pure judicial function presupposes an existing dispute between two or more parties and it involves four requisites:-

(1) the presentation (not necessarily oral) of their case by the parties to the dispute;

(2) if the dispute is a question of fact, the ascertainment of fact by means of evidence adduced by the parties to the dispute and often with the assistance of arguments by or on behalf of the parties, on evidence;

(3) if the dispute between them is a question of law, the submission of legal arguments by the parties; and

(4) a decision which disposes of the whole matter by finding upon the facts in dispute and 'an application of the law of the land to the facts so found including, where required, a ruling upon any disputed question of law.

Thus, in a pure judicial function, the aforesaid four requisites must be present. If these requisites are present, the decision is a judicial decision even though it might have been made by any authority other than a court, e.g. by a Minister, Board, Executive Authority, Administrative Officer or Administrative Tribunal.

The word 'quasi' means 'not exactly'. Generally, an authority is described as 'quasi-judicial' when it has some of the attributes or trappings of judicial functions, but not all. In the words of the Committee on Ministers' Powers, "the word 'quasi', when prefixed to a legal term, generally means that the thing, which is described by the word, has some of the legal attributes denoted and connoted by the legal term, but that it has not all of them", e.g. if a transaction is described as a quasi-contract, it means that the transaction in question has some but not all the attributes of a contract.

A quasi-judicial function differs from a purely judicial function in the following respects:-

(i) A quasi-judicial authority has some of the trappings of a court, but not all of them; nevertheless there is an obligation to an act judicially.

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(ii) A lis inter partes is an essential characteristic of a judicial function, but this may not be true of a quasi-judicial function.

(iii) A court is bound by the rules of evidence and procedure while quasi-judicial authority is not.

(iv) While a court is bound by precedents, a quasi-judicial authority is not.(v) A court cannot be a judge in its own cause (except in a contempt

case), while an administrative authority vested with quasi-judicial powers may be a party to the controversy but can still decide it.

Quasi-judicial Functions - Illustrations

The following functions are held to be quasi-judicial functions:

(a) Disciplinary proceedings against students.(b) Dismissal of an employee on the ground of misconduct.(c) Confiscation of goods under the Sea Customs Act, 1878.(d) Cancellation, suspension, revocation or refusal to renew licence or

permit by licensing authority.(e) Determination of citizenship.(f) Determination of statutory disputes.(g) Seizure of goods beyond a particular period.(h) Refusal to grant 'no objection' certificate under the Bombay Cinemas

(Regulations) Act, 1953.

Purely Administrative Functions

Administrative functions are those functions which are neither legislative nor judicial in character. Generally, the following ingredients are present in administrative functions:-

(1) An administrative orders is generally based on governmental policy or expediency.

(2) In administrative decisions, there is no legal obligation to adopt a judicial approach to the question to be decided, and the decisions are usually subjective rather than objective.

(3) An administrative authority is not bound by the rules of evidence and procedure unless the relevant statute specifically imposes such an obligation.

(4) An administrative authority can take a decision in exercise of a statutory power or even in the absence of a statutory provision, provided such a decision or act does not contravene provisions of any law.

(5) Administrative functions may be delegated and sub-delegated unless there is a specific bar or prohibition in the statute.

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(6) While taking a decision, an administrative authority may not only consider the evidence adduced by the parties to the dispute, but may also use its discretion.

(7) An administrative authority is not always bound by the principles of natural justice unless the statute casts such duty on the authority, either expressly or by necessary implications or if it is required to act judicially.

(8) An administrative order may be held to be invalid on the ground of unreasonableness.

(9) An administrative action will not become a quasi-judicial action merely because it has to be performed after forming an opinion as to the existence of any objective fact.

(10) The prerogative writ of certiorari and prohibition are not always available against administrative actions.

(11) An administrative action includes every direction, decision or measure taken by an authority for the regulation of a particular case for the sphere of administrative law.

(12) The administrative action may be in the form of a general order if it regulates any matter or aims at a definite persons.

Administrative Functions: Illustrations

The following functions are held to be administrative functions:

(1) An order of preventive detention.

(2) An order of acquisition or requisition of property.

(3) An order setting up a commission of inquiry.

(4) An order making or refusing to make a reference under the Industrial Disputes Act, 1974.

(5) An order of assessment under the Sales Tax Act.

(6) An order granting or refusing to grant permission of sale in favour of non-agriculturist under the Tenancy Act.

(7) An order of externment under the Bombay Police Act, 1951.

(8) Power to issue licence or permit.

(9) Maintenance of Public Order.

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Distinction between Quasi-Legislative and Quasi-Judicial Functions

According to Justice Holmes, the main aspect of distinction between a Quasi-Legislation and Quasi-Judicial Functions the element of time. A rule(legislative function) prescribes future pattern of conduct and creates new rights and liabilities, whereas a decision (judicial function) determines rights and liabilities on the basis of present or past facts and declares the pre-existing rights and liabilities.

Legislative function is general and relates to the future whereas the Judicial Function is specific, final and ordinarily relates to the past. The executive function is the function of administrating public affairs, enforcing and carrying out the law (Fida Ali Vs. State AIR 1961 Gujarat 151). It may also happen that a single function may be partly executive and partly judicial.

Distinction between Administrative and Quasi-Legislative Functions

It is indeed difficult in theory and impossible in practice to draw a precise dividing line between the legislative function on the one hand and purely administrative function on the other.

In Union of India Vs. Cynamide India Ltd. (AIR 1987 SC 1802) the Supreme Court has observed that "with proliferation of delegated legislation, there is a tendency for the line between legislation and administration to vanish into an illusion. But still it is necessary and essential to draw this distinction as the following legal consequences flow therefrom:-

(1) If an order is legislative in character, it has to be published in a certain manner, but it is not necessary if it is of an administrative nature.

(2) If an order is legislative in character, the court will not issue a writ of certiorari to quash it, but if an order is an administrative order and the authority was required to act judicially, the court can quash it by issuing a writ of certiorari.

(3) Generally, subordinate legislation cannot be held invalid for unreasonableness, unless its unreasonableness is evidence of malafide or otherwise shows the abuse of power. But in case of unreasonable administrative order, the aggrieved party is entitled to a legal remedy.

(4) Only in most exceptional circumstances can legislative powers be sub-delegated, but administrative powers can be sub-delegated.

(5) Duty to give reasons applies to administrative orders but not to legislative orders.

(6) Since a quasi-legislative function is legislative in character, there is no right to a notice and hearing unless specifically so required by the

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statute (Sundarjas Kanyalal Bhatija Vs. Collector, Thane AIR 1990 SC 261).

(7) Even the rules of Natural Justice do not apply in case of quasi-legislative function.

Judicial Review - Definition

(1) "Review" means "Second Examination of the matter" (Bouviers Law Dictionary).

(2) "Judicial Review" would mean "To re-examine judicially or administratively; reconsideration; second view or examination; revision; consideration for purpose of correction ( Black's Law Dictionary)

(3) The term Judicial Review may therefore be defined as Judicial re-examination of the cases in certain certified and prescribed circumstances (Law Lexicon).

(4) "Judicial Review" implies a comprehensive Judicial Inquiry into; and examination of the actions of the legislative, executive and administrative branches of Government, with the specific purpose for ensuring their conformity to the specified Constitutional provisions.

(5) S.A. de Smith has defined "Judicial Review" as "Judicial Scrutiny and determination of the legal validity of instruments, acts and decisions".

Judicial Review - General Principles

1. Judicial Review provides judicial protection against the acts of executive. It is for protection of fundamental rights, human dignity and human rights and is the foundation of every human community (Dwarkadas Marfatia Vs. Board of Truestees (1989) 3 SCC 293).

2. The power of Judicial Review over legislative action vested in the High Court under Article 226 and in the Apex Court under Article 32 of the Constitution is the basic structure of the Constitution.

3. Even Parliament could not divest Constitutional courts i.e. the Supreme Court as well as the State High Courts of the power to the Judicial Review even by way of Constitutional Amendment (Chandra Kumar Vs. Union of India 8.3.1997).

4. There is no denying the fact that judicial review ultimately responses to the evils committed against constitutional democracy by the legislative as well as executive branches of the government.

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5. This explains that the rule of law combined with the doctrine of ultra vires forms the basis for judicial review of administrative actions.

6. The judicial review is not concerned with the decision but with the decision-making process, viz., the review of all conduct of the executive by the ordinary courts which also decide the dispute between private persons.

7. The administrative act have to withstand the test of constitutionality, i.e. the act just, fair and reasonable (Maneka Gandhi Vs. Union AIR 1978 SC 597).

8. Judicial Review is a mere myth, and as such it being a basic structure of the Constitution can not be abolished or abridged or taken away or whittled down even by an amendment of the Constitution (Kesavananda Bharati Vs. Union of India (1973) SCC 225). And judicial review is the soul of the system in constitutional democracy wedded to the rule of law (Minerva Mills Vs. Union of India (1980) 3 SCC 625).

9. The right of seeking judicial review, of course, depends on the facts and merits of each individual case; there cannot be a review of an abstract proposition of law (Mrs. Sarojini Ramaswamy Vs. Union of India (1992) 4 SCC 506).

10. It is in the nature of Special Leave to Appeal by the Supreme Court which is in the nature of a residuary reserve power of judicial review.

11. If the administration or executive action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters (Mahabir Auto Stores V. Indian Oil Corp., (1990) 3 SCC 752).

Power of Judicial Review - What does the Court look into?

1. Judicial review is a tool in the hands of the courts to test the legality or constitutionality of the exercise of power by an administrative authority.

2. Constitution is a supreme lex or grundnorm, constitutional legislation must in conformity with the supreme lex, the delegated legislation must be in conformity with the delegated legislation, constitutional legislation, and the supreme lex.

3. The Supreme Court of India in Tata Cellular Vs. Union of India (1964) SCC 651 observed that while exercising the power of judicial review of administrative actions it is the duty of the court to confine itself to the under-mentioned questions:-

(a) Whether a decision-making authority exceeds its power?

(b) Whether the authority has committed an error of law?

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(c) Whether the authority has committed a breach of the principles of natural justice?

(d) Whether the authority has reached a decision which who reasonable person would have reached?

(e) Whether the authority has abused its power?

Grounds for Interference by the Court

The power of Judicial Review can be exercised by the Court if the Administrative Action suffers from the vice of the following grounds:-

1. That the decision-maker has not correctly understood the law that regulates his decision-making power.

2. That the decision is outrageous and has been taken in defiance of logic or of accepted moral standards that no sensible person could have arrived at such a decision.

3. That the procedure followed while arriving at administrative decision was not fair, just and reasonable.

4. That the facts do not warrant the conclusion reached by the authority.

5. That the authority acted without or in excess of the power.

6. That the action is malafide.

7. Discretion has been exercised on irrelevant grounds or on extraneous considerations.

8. Relevant matters/facts/events/ have been left out of consideration.

9. Violation of the Rules of Natural Justice.

10. Colourable exercise of power.

11. The authority acted at the dictation of his superior. It is a situation of non-application of the mind.

12. When the authority passes the order mechanically and without applying his mind to the facts and circumstances of the case before it.

13. Non-compliance with the mandatory procedural requirements.

14. The administrative action is discriminatory and violative of Article 14 of the Constitution of India.

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15. Where the authority imposes a condition patently unrelated to or inconsistent with the purpose or policy of the statutes.

16. Where the act complained of is violative of Fundamental Rights.

17. The administrative action is contrary to law.

18. Manifestly unreasonable exercise of power.

19. Patently irrational order.

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CIVIL SERVICES UNDER THE CONSTITUTION OF INDIA

1. A unique feature of the Constitution of India

(a) One of the unique features of the Constitution of India is that it has dealt with “Services” under the Union and the States. This has reference to the Part XIV of the Constitution of India.

(b) Part XIV consists of two chapters, namely, Chapter-I and Chapter-II. Chapter-I makes provisions with respect to “services” and Chapter-II relates to the “Public Service Commissions”.

2. The legal position of a Government Servant

(a) The origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office, the Government servant acquires a status and his rights and obligations are not longer determined by consent of both parties but by statute or statutory rules, which may be framed or altered by the Government unilaterally.

(b) The legal position of a Government servant is one of status than of contract.

(c) The relationship between the Government and its servant is not like an ordinary contract of service between a master and his servant. The legal relationship is something entirely different, something in the nature of status. The duties of status are fixed by the law and in the enforcement of these duties, society has an interest.

Reference : Roshan Lal Tandon vs. Union of India reported in AIR 1967 SC 1889.

(d) Literally, status means standing or social position but that is not the sense in which this term has been used here.

(e) In the language of jurisprudence, status is the legal relation of an individual to the rest of the community.

(f) In the context of service when the relationship between the Employer and the Employee is regulated by Law, it is described as “Status”

(g) The powers and duties of the Government Servants are fixed by Law and not by agreement.

(g) The powers and duties

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3. Broad outline of the Chapter I of part XIV of the Constitution

(a) Chapter I contains seven articles, of which Articles 309, 310, 311 and 312 are the most material. They deal with matters as indicated below :

(b) Art. 309 - It itself makes not provision for recruitment or conditions of service of Government servants but confers powers upon the appropriate legislature to make laws and upon the President and the Governor of a State to frame rules in respect thereof.

(c) Art. 310 - It relates to the tenure of office of the members of the defence services and of civil services and accords constitutional sanction to the doctrine of pleasure.

(d) Art. 311 - It provides for certain safeguards to persons employed in civil capacities under the Union or a State but not to members of the defence services.

(e) Art. 312 - It refers to the All India Services. It speaks of how a new All India Service may be created. It also authorises the parliament to make Law regulating the recruitment to and conditions of services of the members of the All India Services.

4. The Structure of Part XIV of the Constitution at a Glance

Services under the Union and the States

Chapter I Chapter IIServices Public Service Commission

Articles 308 to 313 Articles 315 to 323

5. Classification of the Services

They may be broadly classified under the following two heads :

(i) Under the Union, that is, under the Government of India.(ii) Under the State, that is, under any of the State Governments.

6. Categorisation of the Services under the Union

Services under the Government of India may be categorised as follows :

(a) Defence Services (Army, Navy and Air Forces)(b) All India Services (IAS, IPS and IFS)(c) Central Services(d) Other Services.

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7. Conditions of Service - What do they mean ?

(A) Conditions of Service

All those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and ever beyond it in matters like pension etc.

(B) Conditions

1. Salary2. Increments3. Efficiency Bar4. Leave5. Transfer6. Probation7. Confirmation8. Promotion9. Deputation10. Lien11. Retirement12. Pension13. Gratuity14. Conduct15. Suspension16. Tenure17. Termination18. Disciplinary Proceedings19. Subsistence Allowance20. Punishment

The list under clause (B) is not exhaustive but it is illustrative.

8. Power to legislate and authority to make rules (Article 309)

(a) Powers are conferred upon the Parliament and the President under Article 309 to make law and to frame rules respectively, regarding recruitment and conditions of the Services under the Union save and except in respect of the All India Services and certain other Public Servants for whom specific provisions have been made in the Constitution of India vide para.

(b) The State Legislatures and the Governor are also vested with the powers to make law and to frame rules respectively.

(c) Service Rules other than those relating to the All India Services and certain other posts are made by the President in respect of the Central Govt. employees or by the Governor in respect of the State Govt.

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employees, as the case may be, under Article 309 of the Constitution of India.

Examples :-

(i) The Central Civil Service (Conduct) Rules, 1964.(ii) Central Civil Services (Classification, Control and Appeal ( ) Rules, 1965(iii) Titles of the Rules framed by a State Government (Say- Govt. of West Bengal) are given in the Appendix-“A”.

(d) So far as the All India Services are concerned, the Parliament passed

the All India Services Act. 1951, in pursuance of Article 312(1), read with entry No.70 of List No.I, Seventh Schedule, Constitution of India.

(e) Section 3 of the All India Services Act. 1951 has delegated to the Central Government the power of making Rules for regulation of recruitment and conditions of Services of persons appointed to the All India Services.

(f) In exercise of the powers conferred by Section 3 of the All India Services Act. 1951 the Central Government, after consultation with the Governments of the States concerned, have made many Rules, of which mention may be made of the following :-

i. All India Services (Conduct) Rules. 1968ii. All India Services (Discipline and Appeal) Rules, 1969iii. All India Services (Confidential Rolls) Rules, 1970iv. IAS (Probation) Rules 1954v. IPS (Probation) Rules 1954vi. IFS (Probation) Rules 1968

Note : More Rules and Regulations are mentioned in Appendix-“B”.

9. Basic Characteristics of the All India Services

(a) Members of the All India Services are common to the Union and the States.

(b) Each member of an All India Service is allotted to a particular cadre.

(c) The Cadre exists in the State and not at the centre.

(d) They are an additional agency of Central of the Union over the States.

(e) His appointment to a post under the Union is considered as on deputation.

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(f) All India Services are regarded also as instruments for “National Integration”.

(g) Members of the All India Services are subject to disciplinary control of the Government of India and also to the State Government if the alleged misconduct is committed while service the State Government penalties of dismissal, removal or compulsory retirement can be imposed only by the Government of India and not by the State Government.

10. Doctrine of pleasure what it is

(a) The Civil Services in India are modelled upon the British pattern, though there are important differences between the two.

(b) The doctrine of pleasure is prevalent in England.

(c) There, every public servant holds his/her appointment during the pleasure of the crown.

(d) “During the pleasure” is different from “During good conduct”.

(e) When a person holds office during the pleasure of the crown, his appointment can be terminated at will at any time without assigning any reason.

(f) The crown could not be sued even for recovery of arrears of salary, it being a bounty of the crown and not a contractual debt.

(g) The exercise of pleasure by the crown can, however, be restricted only by an Act of the British Parliament.

(h) The doctrine of pleasure is based on “Public Policy” and not on “special prerogative of the crown”.

11. Doctrine of pleasure - what it is ?

(a) It has been adopted in India subject to certain exceptions, that is, in a modified form.

(b) The rigour of the British concept of “Doctrine of Pleasure” has been toned down in India.

(c) It is the Article 310(1) of the Constitution of India, which has accorded constitutional sanction to the doctrine of pleasure.

(d) Here, in India, a Govt. servant holds his office during the pleasure of the President or the Governor, as the case may be - President if he is

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an employee under the Central Government and Governor, if he is an employee of any State Government.

(e) There are restrictions imposed upon the doctrine of pleasure in India, which may be described under the following three heads :-

i. Proceduralii. Substantiveiii. Non-justiciable

12. Restrictions on the Doctrine of Pleasure :-

(a) The doctrine of pleasure is subject to the safeguards provided by Article 311. In other words, Art. 311 is a proviso to Art.310(1).

(b) The doctrine of pleasure is controlled by the Fundamental Rights.

(c) There are certain constitutional functionaries who do not hold their offices during the pleasure of the President or the Governor, such as,

Judges of the Supreme Court and High Courts, the Chief Election Commissioner, Election Commissioners and Regional Commissioners and the

Comptroller and Auditor General of India. That apart, the Chairpersons and members of the Public Service Commissions also enjoy qualified constitutional immunity.

(d) The doctrine of pleasure does not apply to services under Special Contracts vide Article 310(2).

(e) Public Service Commissions are required to be consulted on all disciplinary matter affecting civil servants vide Article 320(3)(c). These provisions have, however, been held to be not mandatory. Moreover, the President or the Governor may make regulations specifying the matters in which it shall not be necessary to consult the commission.

(f) The right of a civil servant to sue the Govt. for arrears of salary or even for damages for wrongful dismissal has been recognised in India.

(g) Article 310(1) should be read subject to the Rules framed by the Government under Article 309. No rule made under article 309 can be allowed to offend against the doctrine of pleasure as embodied in Article 310(1).

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13. Article 311 Magna Carta for Civil Servants in India

(a) What it does ?It provides for certain safeguards.

(b) Of what kind ?Procedural

(c) Against what ?

(i) Dismissal or removal by incompetent authority.

(ii) Arbitrary punishment of any of the three kinds, namely, Dismissal, Removal or Reduction in rank.

14. Article 311 to whom it applies :-

(a) a member of an All India Service.(b) a member of a civil service of the Union.(c) a member of a civil service of a State.(d) a person who holds a CIVIL post under the Union or a State.

15. Article 311 does not apply to

(a) a civilian employed in a defence department.(b) an employee of a statutory corporation like LIC, Food Corporation of

India etc. or of a Government Company.(c) Defence Personnel.

16. Safeguards of Article 311- an outline

Two safeguards as indicated below :-

(1) No dismissal or Removal by authority subordinate to appointing authority.

(2) No dismissal or removal or reduction in rank.

without inquiry in which :-

(i) charge should be communicated to the Government Servant concerned.

(ii) he and she should be given reasonable opportunity of being hearse in respect of charges, and

(iii) penalty may be imposed on the basis of evidence adduced during such inquiry.

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17. Second Show Cause Notice regarding punishment - is it necessary now ?

No, it is no longer necessary to give a second show cause notice to the delinquent calling upon him to show cause as to why the proposed penalty should not be inflicted upon him.

Once he is found guilty upon the basis of evidence adduced at the Inquiry, it shall be open to the competent authority to award such punishment as may be deemed appropriate. The penalty should not however, be excessive or disproportionate.

18. Exceptions where Inquiry as enjoined under Article 311(2) may be dispensed with

(a) Misconduct (thrust on misconduct)Criminal ChargeConviction by a Court of Law.

(b) Satisfaction of the Disciplinary Authority

- Not reasonably practicable to hold inquiry - Reasons to be recorded.

(c) Satisfaction of the President or Governor- in the interest of the security of the State.- Not expedient to hold inquiry.

19. 311 - Probationers, Officiating or Temporary employees on the Civil side of the Government - are they entitled to the benefit of Article 311 ?

(a) Yes, they are also entitled to the benefit of Article 311. There is nothing within the four corners of Article 311 to render it inapplicable to any of these employees.

(b) It should, however, be borne in mind that Article 311(2) is attracted only when any of the three major penalties is sought to be imposed on account of misconduct, or inefficiency, negligence or on any other ground which is capable of being explained.

(c) Article 311 has no application when the action proposed to be taken is not penal at all or is penal but not dismissal, removal or reduction in rank.

20. Probationer his position

(a) When we say that Mr.‘X’ is a probationer in the context of government service, what we exactly mean is that he is on trial. The question that arises is what kind of trial it is? The answer is his

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suitability or fitness is being assessed with reference to the service or post to which he has been appointed on probation.

(b) A probationer has no right to hold the post to which he has been appointed on probation. It is inherent in his appointment that if he is found suitable, he will be confirmed. But if he is not found suitable, he shall be liable to be discharged.

In case of conviction on a criminal charge, dismissal or removal is not automatic. The disciplinary authority has to apply its mind to the nature and gravity of the offence and to find out what penalty, if any, is warranted.

(c) In this connection, the two distinct powers of the Govt. may be borne in mind. One power relates to the disciplinary jurisdiction, in exercise of which a penal action may be taken. If a probationer is sought to be punished, he is entitled to the benefit of Article 311. In other words, if a probationer is proposed to be dismissed or removed or reduced in rank, the mandatory procedure of Article 311 has to be followed. On the other hand, the Govt. has also a right to act in accordance with the contract. As I have already indicated, the position of the government servant, after he has entered into the system. is one more of status than of contract. He is, therefore, controlled by the statute or statutory rules. The rules may provide for discharge of a probationer on the ground of unsuitability or on the ground that he is lacking in qualities essentially needed for public service. When the appointment of a probationer is terminated on the ground of unsuitability, Article 311 will have not application.

(d) In practice, what poses difficulty is that whether the termination is by way of punishment or it is a termination simpliciter in accordance with the rules or in keeping with the terms of the contract. The order by itself is not conclusive on this point. The order may be innocuous or innocent. In appropriate cases, the Court may, however, look into the circumstances leading to the order of termination in order to determine whether the order is penal in character or it is an order of discharge simpliciter.

(e) If the order attaches any stigma, then it should be construed as penal and in such event, Article 311 is attracted.

(f) Even if the order is innocuous, but there is an alleged specific misconduct on the part of the probationer forming the foundation of the order, then, also the order should be construed as having been passed by way of punishment. The idea is that if there is an instance of misconduct or misdemeanour, then, an enquiry, as contemplated in Section 311 ought to be instituted and the probationer must be given reasonable opportunity of being heard.

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(g) What is important is that the form of the order alone cannot decide the real nature of the order. If it is a cloak or camouflage for a penal action, then the Court is entitled to pierce the veil and to determine the real nature of the order and to insist on Article 311 being complied with.

21. Fundamental Rights and the Government Servants

(a) It should not supposed that the civil servants have surrendered or relinquished or waived their fundamental rights at the time of joining the Govt. Service.

(b) In fact, none of the fundamental rights guaranteed under Part III of the Constitution of India can be waived. Hence, the question of waiver does not arise at all.

(c) The question that naturally arises is whether the government servants the fundamental rights to the same extent and in the same measure as are available to the ordinary citizens. In order to find a suitable answer to this question, reference ought to be made to Article 33 of the Constitution of India.

(d) Article 33 authorises the Parliament to abrogate or restrict fundamental rights in their application to certain categories of Govt. servants as specified therein, namely, members of the armed forces such as Army, Navy, Air Force, Police Force changed with the maintenance of public order and persons employed in any Bureau or any Organisation established by the State for the purpose of intelligence and counter-intelligence, and persons employed in connection with telecommunication systems such as Intelligence Branch of the Govt. of India, RAW, IB, SSB (Special Service Bureau) and the wireless department attached to any police organisation.

(e) Such abrogation or restriction may be resorted to in order to ensure the proper discharge of duties and maintenance of discipline among those categories of employees.

(f) If you check up Army Act, Navy Act, Air Force Act, you will find instances of abrogation or restriction of fundamental rights in respect of defence personnel. So far as the police is concerned, Police Forces (Restriction of rights) Act was passed by the Parliament in the year 1966.

(b) So far as the civil servants, falling outside the purview of the Article 33 are concerned, it cannot be said that they do not or cannot enjoy

fundamental rights. In this context, it ought not to be forgotten that none of the fundamental rights is absolute. They are subject to reasonable

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restrictions. Hence, reasonable restrictions may be imposed upon the fundamental rights of the government servants falling outside the purview of Article 33 upon the grounds recognized under the Constitution of India, such as public order, decency, morality and integrity of India as well as upon certain ground spelt out by the Supreme Court such as :

i. Efficiencyii. Honestyiii. Impartialityiv. Disciplinev. Responsibility

(h) No service rules can be permitted to offend against any of the fundamental rights and if it does so, it is liable to be struck down as null and void. It is, however, permissible to impose reasonable restrictions on any of the recognised grounds. These principles are, however, not applicable to the Government Servants whose fundamental rights have been abrogated or restricted by law made under Article 33 of the Constitution of India.

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Appendix - A

1. Extract Provisions of Constitution of India

ALL INDIA SERVICES

2. The All India Services Act, 1951

3. The All India Services (Conditions of Service – Residuary Matters) Rules, 1960

4. The All India Services (Conduct) Rules, 1968

5. The All India Services (Confidential Rolls) Rules, 1970

6. All India Services (Commutation of Pension) Regulations, 1959

7. The All India Services (Dearness Allowance) Rules, 1972

8. The All India Services (Death-cum-Retirement) Rules, 1958

9. The All India Services (Discipline and Appeal) Rules, 1969

10. The All India Services (Group Insurance) Rules, 1981

11. All India Services (Joint Cadre) Rules, 1972

12. The All India Services (Leave) Rules 1955

13. The All India Services (Leave Travel Concession) Rules, 1975

14. The All India Service (Home Rent Allowance) Rules, 1977

15. The All India Services (Compensatory Allowance) Rules, 1981

16. The All India Services (Medical Attendance) Rules, 1954

17. The All India Services (Provident Fund) Rules, 1955

18. The All India Services (Remittances into and Payments from Provident Fund and Family Pension Funds) Rules, 1958

19. The All India Services (Special Disability Leave) Regulations, 1957

20. The All India Services (Study Leave) Regulations, 1960

21. The All India Services (Travelling Allowances) Rules, 1954

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THE INDIAN ADMINISTRATIVE SERVICE

22. The Indian Administrative Service (Appointment by Promotion) Regulations, 1955

23. Indian Administrative Service (Appointment by Selection) Regulations, 1956

24. The Indian Administrative Service (Cadre) Rules, 1954

25. The Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955

26. The Indian Administrative Service (Pay) Rules 1954

27. The Indian Administrative Service (Probation) Rules, 1954

28. Indian Administrative Service (Probationers’ Final Examination) Regulations, 1955

29. The Indian Administrative Service (Recruitment) Rules, 1954

30. Indian Administrative Service (Regulation of Seniority) Rules, 1987

31. The Indian Administrative Service (Pay) Eighth Amendment Rules, 1989

32. The Indian Administrative Service (Appointment by Competitive Examination) Second Amendment Regulation, 1989

THE INDIAN FOREST SERVICE

33. The Indian Forest Service (Appointment by Competitive Examination) Regulations, 1967

34. The Indian Forest Service (Appointment by Promotion) Regulations Rules, 1966

35. The Indian Forest Service (Cadre) Rules, 1966

36. The Indian Forest Service (Fixation of Cadre Strength) Regulations, 1966

37. The Indian Forest Service (Initial Recruitment) Regulations, 1966

38. The Indian Forest Service (Pay) Rules, 1968

39. The Indian Forest Service (Probation) Rules,1968

40. The Indian Forest Service (Probationers’ Final Examination) Regulations, 1968

41. The Indian Forest Service (Recruitment) Rules, 1966

42. The Indian Forest Service (Regulation of Seniority) Rules, 1968

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THE INDIAN POLICE SERVICE

43. Indian Police Service (Appointment by Competitive Examination) Regulations, 1955

44. The Indian Police Service (Appointment by Promotion) Regulation, 1955

45. The Indian Police Service (Pay) Rules, 1954

46. The Indian Police Service (Special Allowance) Rules, 1977

47. The Indian Police Service (Probationers’ Final Examination) Regulations.

48. The Indian Police Service (Probation) Rules,1954

49. The Indian Police Service (Recruitment)Rules,1954

50. The Indian Police Service (Regulation of Seniority) Rules, 1954

51. The Indian Police Service (Cadre) Rules, 1954

52. Indian Police Service (Uniform) Rules, 1954

53. Indian Police Service (Pay) Seventh Amendment Rules, 1989

54. Indian Police Service (Pay) Sixth Amendment Rules, 1989

THE CENTRAL CIVIL SERVICES

55. The Central Civil Services (Classification, Control and Appeal) Rules, 1965

56. The Central Civil Services (Conduct)Rules,1964

57. The Central Civil Services (Leave) Rules

58. Central Civil Services (Revised Pay)Rules,1986

59. The Central Civil Services(Temporary Service) Rules, 1978

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MISCELLANEOUS

60. Acceptance of Fourth Pay Commission Report by the Government of India

61. Civilians in Defence Service (Revised Pay) Rules, 1986

62. The Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1972

63. The Former Secretary of State Service Officers Conditions of Service) Act, 1972

64. Indian Customs and Central Excise Service Group ‘A’ Rules, 1987

65. The Indian Revenue Service Rules, 1988

66. The Indian Administrative Service (Appointment by Competitive Examination) Regulations, 1955

67. International Airports Authority of India Employees (Conduct, Discipline and Appeal) Regulations, 1987

68. The Leave Travel Concession Rules, 1988

69. Miscellaneous Executive Instructions Concerning All India Services

70. The Public Servants Inquiries Act, 1850

71. The Railway Servants (Discipline and Appeal) Rules, 1968

72. The Railway Servants (Pass) Rules, 1986

73. Redeployment of Surplus Staff Against Vacancies in Central Civil Services and Posts (Group ‘A’ and ‘B’) Rules, 1986

74. Supreme Court Officers and Servants Rules,1961

75. The Indian Foreign Service (Conduct and Discipline) Rules, 1961

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Appendix - B.

1. The West Bengal Service Rules.

2. The West Bengal Services (Classification, Control and Appeal) Rules, 1971.

3. The West Bengal Services (Duties, Rights and Obligations of the Government Employees) Rules, 1980.

4. The West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971.

5. The West Bengal Services (Commutation of Pension) Rules, 1983.

6. The West Bengal Services (Revision of Pay and Allowance) Rules, 1981.

7. West Bengal Services (Determination of Seniority) Rules, 1981.

8. West Bengal Services (Appointment, Probation and Confirmation) Rules, 1979.

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A PROBATIONER AND HIS STATUS UNDER THE LAW* ( A case study )

(a) Subject : Service Jurisprudence and constitutional safeguards

(b) Reference: i) Article 311 of the Constitution of India, ii) IAS (Probation) Rules, 1954 and iii) All India Services (Discipline and Appeal) Rules, 1969

Text

1. Shri H.D. Sharma had a chequered career. He was quite bright as a student. While he was 15 or 16 year old, he qualified himself for admission to National Defence Academy. He joined that Institution on 26th July, 1968 and was there till the 7th April, 1971.

2. After having withdrawn himself from military training, he went back to his home state, namely, Bihar. He resumed his studies there and passed B.Sc. examination of Bihar University with Honours.

3. In June, 1976, he sat for the Civil Service Examination conducted by the Union Public Service Commission. He was selected for the Indian Foreign Service(B). He joined IFS(B) on 1.5.78. He had been appointed against a permanent post in that Service, though not confirmed at the relevant time.

4. While he was in IFS(B), he again appeared at the Civil Service Examination in 1980 with a view to becoming a member of Indian Administrative Service. He made it this time and was appointed to IAS in 1981 on probation.

5. He joined the Academy, known as LBSNAA, at Mussoorie, on 1.9.81 to undergo the prescribed course of training. His own impressions about the environment in the Academy, as given out by him subsequently, were as indicated in paragraph 6 below.

6. He felt that the Faculty and the probationers were divided on the basis of caste and region. He found that there were regional groups in the Academy, such as - South Indian Group and North Indian Group. He perceived that there existed a close knit South Indian faction with ani-Bihari bias.

7. Trekking the Himalayas in an important part of the training programme for the Probationers of the Foundational Course. For the purpose, the probationers of his batch (1981) were divided into several groups. Shri H.D. Sharma was allocated to Group Not.2. It consisted of 40 probationers of whom 8 were ladies. Shri P. Rashid, an IAS probationer from South India, was made the Group Leader and Kumari Anita Srivastava an IAS Probationer from Uttar Pradesh was appointed as its Treasurer. The route assigned to that group was “Mussoorie-Hemkund-Valley of Flowers-Badrinath-Kedarnath and back”

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8. This trek was organised during the period from 25.9.81 to 3.10.81 inclusive of the time taken for the journey, to-and-fro. What happened during the trek was a matter in controversy.

9. The contention of Shri H.D. Sharma was that some of the probationers including the Group Leader and the Group Treasurer repeatedly used abusive language against him calling him “uncivilized Bihari bastard”. He alleged that some of the probationers persisted in abusing the Bihari Probationers, despite remonstrance. He also alleged that while at Rishikesh, the Group Leader made an offensive remark and thereby offended his religious sentiment. He, however, added that in any event, he ultimately expressed his regrets for what had happened and the matter appeared to have ended. His grievance was that it was not closed at that point but it was blown out of proportion and distorted in a menacing manner, with the object of destroying his career.

10. The official version, on the other hand, was that throughout the trekking mission, Shri H.D. Sharma was under the influence of liquor, and that in that state, he was getting into heated arguments and disputes with the Group Leader and the Group Treasurer. It was further alleged that in a state of inebriation, Shri H.D. Sharma threatened the lady probationer with a fire-arm and that the lady probationers got so much terror-stricken that they locked themselves in one room and had to go without food on that account. In substance, the complaint was that Shri H.D. Sharma indulged in gross misconduct on a number of occasions and behaved like a drunken bully, abusing and terrorising his fellow Probationers.

11. The official version was based on the result of an inquiry that was conducted by a Deputy Director of the Academy under order of its Director. All the probationers of the trekking Group Not.2 were advised to file their respective written statements. Initially, they did not come forward to give their versions. In order to create a congenial climate for inquiry, Shri H.D. Sharma was directed to proceed on leave. He went on leave. He was also asked to give his version of the alleged incidents but he pleaded for more time. Statements of the fellow probationers were recorded in course of such inquiry and the report submitted to the Director.

12. The then Director of the Academy gave his anxious consideration to the facts and circumstances of the case, as revealed by the Inquiry. He came to the conclusion that Shri H.D. Sharma was guilty of conduct unbecoming of a member of the Indian Administrative Service. He, however, expressed himself in favour of taking a charitable view in consideration of the facts that Shri H.D.

Sharma had a young wife and a small child and keeping in view that dismissal would operate as a bar to his employment under the Government in future. Hence, instead of recommending punishment in the form of dismissal, he urged the Government of India to discharge him under Rule 12(b) and

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Rule 12(bb) of the IAS (Probation) Rules, 1954, on the grounds that he was unfit to be a member of the IAS and that he lacked the qualities of mind and character essential for that service. This has reference to his confidential letter dated 28th October, 1981 addressed to the Government of India.

13. The Government of India considered the contents of that letter to the Director including his recommendation for the discharge of Shri H.D. Sharma. The Govt. however, did not accept the Director’s recommendation. The Government thought it appropriate to adopt a reformative approach in preference to deterrent action. The Government accordingly decided that a strict warning be issued to Shri H.D. Sharma and that he be kept under watch for his conduct and behaviour for one year.

14. This decision of the Government of India was communicated to the Director of the Academy in February, 1982. The then Director felt greatly disturbed at the response of the Government. He thought that the action devised by the Government, namely, a mere warning, was a eye-wash and entirely inadequate. In protest, he went on long leave preparatory to retirement. After taking that step, he wrote a letter dated 3rd March, 1982 to the Prime Minister of India. He expressed grave concern at the action of the Government and sought to impress upon the Prime Minister that a case of that serious nature involving an IAS Probationer ought not to have been disposed of in what he described as a cavalier manner.

15. That letter of the Director to the Prime Minister induced the Government of India to give a fresh look at the case of Shri H.D. Sharma. The Government of India reviewed his case and ultimately came to the conclusion that the appropriate order that ought to be passed in that case was one for discharge of the Probationer concerned from the Indian Administrative Service, on the ground that he was unsuitable. The Government accordingly issued an order on 5th March, 1982 discharging Shri H.D. Sharma from IAS under clause(b) of Rule 12 of the IAS(Probation) Rules, 1954.

16. Shri H.D. Sharma challenged the order of his discharge dated 5.3.82 by filing a writ petition before the Hon’ble Allahabad High Court. It was argued on his behalf that although the order of discharge, on the face of it, was innocuous, it was really a penal order for his removal from IAS. It was contended for him that not opportunity, as contemplated in Article 311 of the Constitution of India and the relevant Rules, was afforded to him and as such, the order was bad in law on account of its being violative of Article 311 and hence, liable to be set aside. Another plea that was taken was that the Central Government’s decision to issue a stern warning was tantamount to the punishment “of censure”and that it was not open to the Central Government to inflict another punishment.

17. The petition of Shri H.D. Sharma was resisted by the Govt. of India. The learned Counsel for the Government of India maintained that the order of discharge was passed on the ground that Shri Sharma was found unsuitable for being a member of Indian Administrative Service. He argued that the

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Court was not competent to decide whether or not Shri Sharma was suitable for the service. He submitted that some fact-finding inquiry had to be instituted in order to assess whether or not Shri Sharma was suitable for Service. He contended that the inquiry and the mere fact that Shri Sharma was discharged following such inquiry, would not, per se, lead to the inference that he was being punished. The Government’s case before the court was that it was a simple order of discharge on the ground of unsuitability and that it would not fall within the purview of Art.311.

18. Upon the contentious fact and circumstances of the case and in view of the rival arguments of the parties, the points of law that come up for consideration may be formulated as follows :-

i) What is meant by the term “Probationer” ?ii) Why a period of Probation is prescribed ?iii) How the expression “on probation” is understand in service

jurisprudence?iv) Has a Probationer right to hold the post to which he has been

appointed on probation ?v) Is a Probationer entitled to the benefit of Art. 311 of the Constitution

of India ?vi) Does an order of discharge of a Probationer simpliciter without

anything more attract the operation of Art. 311 ?vii) Is the form of an order terminating the service of a Probationer itself

decisive of its real nature ?viii) How to determine whether the order of termination of the service of a

Probationer is penal or not ?ix) Is the Court entitled to look into the circumstances prior to and

attendant on the passing of the order of termination, in order to assess the true nature of the order - whether it was by way of punishment or in accordance with the terms of appointment as embodied in the relevant Rules ?

x) Is the motive of the Government behind the termination of service of a Probationer relevant for deciding on the applicability of Art. 311.

xi) What is the distinction between an inquiry for determination of suitability of a Probationer and an inquiry for imposition of punishment upon him ?

xii) Does specific misconduct alleged to have been committed by a Probationer make it mandatory for the Government to comply with the requirement of Art. 311 ?

xiii) Did the warning directed to be issued against Shri H.D. Sharma constitute a penalty in the form of “censure” within the meaning of the All India Services (Discipline and Appeal) Rules, 1969?

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xiv) What was the real nature of the inquiry instituted against Shri H.D.Sharma ?

xv) Was the order of discharge ultimately passed by the Government of India on 5.3.82 liable to be construed as a camouflage for avoiding attraction of Article 311(2) ?

xvi) Was the order of discharge passed against Shri H.D. Sharma which purported to be one under Rule 12 of the IAS (Probation) Rules, 1954, bad for non-compliance with the requirement of Article 311 ?

xvii) Do you find any infirmity in the procedure actually adopted by the Director of the Academy while recommending discharge of Shri H.D. Sharma ?

xviii) Were you the Director of this Academy, what recommendation, if any, you would have made to the Government of India in respect of Shri H.D. Sharma, the IAS Probationer under training for his alleged misconduct ?

xix) How do you react to (a) the stand initially taken by the Government of India advocating a reformative approach, (b) the protest lodged by the Director by proceeding on leave preparatory to retirement, (c) the subsequent step taken by him for moving the Prime Minister of India for reversal of the earlier stand of the Government and (d) administrative review made by the Government of India, probably on the intervention of the Prime Minister, which ultimately resulted in the order of discharge of Shri H.D. Sharma ?

xx) What are the safeguards provided by Article 311 and how to comply with its requirements?

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LIABILITY OF GOVERNMENT AND ITS SERVANTS IN CONTRACT AND TORTS

A. LIABILITY OF GOVERNMENT IN CONTRACT

1. Introduction

The Constitution of India makes the Union and the States as juristic persons. The Government of India may sue or be sued by the name of Union of India and the Government of any State, may sue or be sued by the name of the State. They can own property and dispose the property, make contracts, carry on any trade or business and can bring and defend legal actions just as a private individuals. So the legal personality of the Union and the States are placed beyond doubt. State performs many functions through its servants, may be dealing with properties, contracts, rights, liabilities or suits. Constitution provides provisions for all these aspects.

2. Property, Contracts, Rights, Liabilities, Obligations and Suits of the Government

Chapter-III, Part-XII of the Constitution deals with property, contracts, rights, liabilities obligations and suits.

Arts - 294 and 295 deal with succession to property, assets, rights, liabilities and obligations.

Art. 296 deals with property occurring by escheat or laps or a bona-vacantia.

Art. 297 deals with things of value in territorial waters or continental-shelf and resources of the Exclusive-Economic-Zone.

3. Constitutional Provisions Dealing with the Government Contracts

a) Article 298 : Power to carry on any trade etc. : The executive power of the Union and of each state shall extend to the carrying on any trade or business and to the acquisition, holding and disposal of property and making of contracts for any purpose.

b) Article 299 (1) provides formalities required for Government Contracts.

c) Article 299 (2) specifies the personal responsibilities of government servant who entered into a contract.

d) Article 300 (1) specifies the liability of the Union and the States.

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e) Article 300 all together deals with rights, liabilities, obligations and suits of the Union and the State Governments.

4. Conditions Necessary for Validity of Government Contracts under Article 299 (1)

A contract made with Union Government or a State Government must satisfy the following three conditions :

a. The contract must be executed by a person authorised by the President or the Governor, as the case may be.

b. The contract must be executed by such person on behalf of the President or the Governor as the case may be, and

c. The contract must be expressed to be made by the President or the governor as the case may be.

-Constitution does not always require execution of formal contracts.

Basis for Article 299 (1)

- Sec. 40 of the Government of India Act, 1858- Sec. 30 of the Government of India Act, 1919- Sec. 175(3) of the Government of India Act, 1935

5. Reasons for the Conditions Provided under Article 299 for Governmental Contracts

Contract by Government arise some problems which do not and cannot possibly arise in the case of contracts entered into by private persons. So in order to bind the Government, there should be specific procedure enabling the agents of government to make contracts. The public funds cannot be placed in jeopardy by contracts made by unspecified public servants without the express sanction of law. It is a provision made to save the state from spurious claims made on the strength of unauthorised contracts.

That is why it has been provided that the state should not be saddled with liability for contracts which do not show on their face that they are made on behalf of the State (Chaturbhaj Vs. Morewar, (1964) S.C.R. 817 (835).

6. The Effect of Non-compliance of the Conditions in Article 299 (1)

a) Non-compliance of the conditions would render the contract void and the Government is not binding.

b) Officer who entered into a contract may be made personally liable.

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c) Doctrine of promissory estoppel can not be operated against the Government.

No estoppel can be raised in favour of contract against a public policy even if a contract under Article 299 deriving benefit under an invalid contact.

7. Government deriving benefit under an invalid contract is bound to compensate on equity grounds

- Sections 65 &70 of Indian Contract Act

8. Breach of Government Contracts

For the rights and liabilities arising under government contracts or any question of the remedy for breach of contract, the following Acts may also to be referred.

a) Indian Contract Act, 1872b) The Sale of Goods Act, 1930c) Income-tax Act, 1961d) The Civil Procedure Code, 1908e) The Arbitration Act, 1940 etc.

For different aspects of the government contract, different statutes, rules terms and conditions have to be gone into before a solution to a problem is found out.

9. Article 299 Applies only when Government Servant Exercises Executive Power

- An act of making contract is deemed an exercise of executive power

- It applies only for executive acts of the State executive officers

- While exercising statutory powers, the executive officer derives the same power from the provisions of the respective Statute only and their acts also governed by the same Act.

- Bhikaraj Jaipuria Vs. Union of India (1962), Supreme Court held that the impugned purchase orders constituted enforceable contracts having been made by an officer who was shown by oral and documentary evidence who have been given a special agency power.

10. Service Contracts and Article 299

- For service matters, generally Article 308 to 313 of the Constitution applies

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- A contract of service with the government is not to be struck-down for non-compliance of the provisions of Article 299. The reason is that once appointed, the government servant acquires status and his rights and obligations are no longer determined by the consent of the parties, but by the statutory rules framed by the government.

1. Ranjeet Kumar Vs. West Bengal (A.I.R. 1958 Cal. 551)2. Prushotham Lal Dhingra Vs. Union of India (1958)

11. General Principles Relating to Contractual Liability of Government

Article 299 provides formalities to be complied with and provides only contractual liability.

It does not deal with the substantial law relating to contractual liability of the government and also liability of the Government for the acts and responsibilities of its servants which are to be found in the ordinary law of the land.

Even though a contract may be formally valid under Article 299, it may nevertheless fail to bind the government, if it is void or unenforceable under the general provisions of law.

12. Some of the Special Features of a Contract with Government

a) Executive authority cannot be fettered by contract.b) Legislative authority cannot be fettered by contract.c) Right to prosecute cannot be barred by contract.d) Statutory powers cannot be bartexed away.e) Estoppel does not operate against the Government in Certain

matters f) No Estoppel arises, where Government Official as acted under a

mistake -Jit Ram Vs. State of Haryana(1980)

13. Conclusion

Government contracts as it is observed have special features. Their outstanding character is a sense of responsibility in their conclusion and performance. However, there is no doubt, in many countries including India, the government contracts are governed by the same principle of law which govern private contracts. This is however, more true in theory than in practice, Government occupies a different position as compared to an individual. It is also necessary for proper execution of contracts by the government servants. Hence, Government contracts require special features as distinguished from the contracts by private individuals.

B. LIABILITY OF GOVERNMENT FOR TORT

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1. What is a Tort ?

Tort is a civil wrong. It is a wrong recognised by the principles of law of tort. It is a civil wrong which is other than a breach of contract or a breach of trust. Civil wrongs are pertaining to private rights and remedies of individual as distinguished from criminal or political etc.

The remedies of tort must be always unliquidated damages which can be decided by the courts when cases come before them and the wrong doer is liable for the same. So it is redressible by an action for unliquidated damages.

When there is a wrongful act and that act violates the legal rights of any person then it can be termed as tort.

Example : Negligence, Nuisance, Defamation. (These are torts as well as crimes. Both civil and criminal remedies can be initiated by an aggrieved person).

2. Vicarious Liability

The principle of vicarious liability says that he who does an act on behalf of any person, it is deemed in law that he has done it. (Qui facit per alum facit per se) or let the principle be held responsible (Respondent supervisor).

Example: An act of an agent is considered to be an act of a principal. Agent commits any mistake, the principal is made responsible vicariously or government servant commits any wrong while discharging his duties, the concerned government is made vicariously responsible for the wrongs committed by its own servant.

3. Vicarious Liability of State

As state can be made vicariously liable for the wrongful acts of its own servants, the liability of a government and the liability of the principal or master can be assessed on different footing. For fixing the governmental liability in this regard, the courts generally consider the nature of the functions, the civil servant was exercising while committing wrong i.e. sovereign functions or non-sovereign functions.

Sovereign functions of a State are those functions which are essential functions of a State and statutorily delegated from government to individuals or institutions. Ex. Maintenance of Law and Order is a sovereign functions. Non-sovereign functions are those powers and functions assigned by the government to any ordinary individual. Ex. Driver of a government vehicle or attender in a government office.

The general principle is that if a government servant commits any wrong while exercising sovereign functions, State is not liable and the same is committed while exercising non-sovereign functions the Government is liable.

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4. Constitutional Provisions

Article 300 (1)

This article deals with vicarious liability of a State. It says that the government of India may sue or be sued by the name of the Union of India and Government of a State may sue or be sued by the name of any State and may subject to any provision which may be enacted by Parliament.

Under this article the Union Government or any State Government be sued but extent of liability is not fixed in the Constitution. So, one has to rely for this on many leading cases decided by the superior courts.

5. Decided Cases

a) Penon Sular and Oriental Steam Navigation Co. Ltd. Vs. Secretary of State for India : (1861 5 Bombay, H.C.R. Appl.1)

The Supreme Court of Calcutta held that the Secretary of State for India was liable for the damages caused by the negligence of Government servants, because the negligent act was done in the exercise of sovereign functions. The court drew the distinction between acts done in exercise of sovereign powers and acts done in exercises of non-sovereign powers. In this case the damage was done by the plaintiff in the exercises of non-sovereign functions i.e. the maintenance of dockyard which could be done by any private individual without any delegation of sovereign powers and hence the Secretary of State was liable for the tort committed by his servant.

b) State of Rajasthan Vs. Vidyawati (AIR 1962 SC 933) :

In this case, the driver of a jeep owned and maintained by the State of Rajasthan for the official use of a collector of a district, drew it rashly and negligently while bringing it back from workshop after repair and knock down a pedestrian and fatally injured him. The deceased person’s wife claimed compensation from the Rajasthan Government. The Court held that the driver of a jeep was an activity which was not connected with the sovereign powers of the State of Rajasthan and was made liable.

c) Kasturilal Ralia Ram Jain Vs. State of UP (AIR 1965 SC 1039) :

In this case, one police constable under whose possession certain jewels which were seized by the police was misappropriate and escaped from that place. The Supreme Court held that State was not liable because the police constable was exercising sovereign functions when he committed the tort of misappropriating the property seized by the police. The Court held that the tortuous act of a police officers was committed by him in discharge of sovereign powers and the State was therefore not liable for damage caused to the applicant. The Court said that the power to arrest a person, to search him and seized the properties found with him

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were powers conferred on the specific officers by statute, they are characterised as sovereign powers.

d) Thangarajan Vs. Union of India (AIR 1975 Mad. 32) :

An army driver was deputed for collecting CO2 gas from the factory to deliver it to ship I.N.S. Jamuna. As a result of rash driving, he knocked down the appellant, a minor boy aged about 10 years. the state has claimed sovereign immunity. But in view of the peculiar circumstances of the case, the Court strongly recommended to the Central Government to make an ex-gratia payment of Rs. 10,000/- to the appellant.

e) B.K.D. Patel Vs. State of Mysore (AIR 1977 SC 1747) :

In this case the stolen ornaments of the appellant were recovered by the police. Again it was stolen from the police custody. After the disposal of the case, the appellant claimed the jewels or its equivalent value. The Magistrate Court, the Sessions Court and the High Court dismissed his claims. The Supreme Court held that that the State is liable to pay cash equivalent of the property stolen to the appellant.

f) Rudal Sha Vs. State of Bihar (AIR 1983 SC 1086) :

A man called Rudal Shah, in the State of Bihar, was arrested on charge but aquatinted by the Sessions Court at Muzaffarpur on 3 June 1968. He was , however, released from jail only after more than fourteen years, i.e., on 16 October 1982. Upon his release, he asked for certain ancillary rights like rehabilitation, reimbursement of the expenses he had incurred for the medical treatment, and compensation for illegal incarceration. The Supreme Court of India said that under Art. 32 of the Constitution, it was competent to order payment of the compensation to the petitioner for the deprivation of the fundamental right to life and liberty. The Supreme Court also directed the Bihar Government to pay compensation of Rs. 30,000/- to Rudal Shah because of the negligence of the government servant in detaining him.

g) Sebastian M. Hongray Vs. Union of India (AIR 1984 SC 1026) :

The Supreme Court by a writ of Hebeas Corpus required the Government of India to produce two persons before it. These two persons were taken to the military camp by the jawans of the army at Manipur. The Government failed to produce them and expressed its inability to do so as these persons had met an unnatural death. The Supreme Court keeping in view, the torture, agony and mental aggression through which the wives of the deceased persons in question had directed the Union Government to pay Rs. 1,00,000/- to each of the widows of the deceased persons.

h) C. Ramkonda Reddy Vs. State of A.P. (AIR 1989 AP 235) :

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The Andhra Pradesh High Court held that the State was liable to pay compensation for the death of an undertrial prisoner, which took place due to negligence of the prison authorities. The High Court after reviewing the recent case laws observed that sovereign immunity could no longer be applicable to cases of violations of fundamental rights to life and personal liberty guaranteed by Art. 21.

(i) People’s Union for Democratic Rights Vs. Police Commissioner, Delhi Police Headquarters, [(1989) 4 SCC 730] :

One labourer was taken to the police station for doing some work. When he demanded wages, he was severely beaten and ultimately succumbed to the injuries. It was held that the State was liable to pay Rs. 75,000/- as a compensation to the family of the deceased labourer.

j) Saheli Vs. Commissioner of Police (AIR 1990 SC 513) :

The State was held to be liable for the tortuous acts of its employees when a 9 year boy had died due to the beatings by the police officer acting in excess of power vested in him. The Court directed the Government to pay Rs. 75,000/- as compensation to the mother of the child.

k) Nilabati Behra Vs. State of Orissa [(1993) (2) SCC 746] :

The Supreme court awarded compensation of Rs. 1,50,000/- to the mother of the deceased person who died in the Police custody due to beatings by the Police. In this case, torturing of Police converted from civil wrong to criminal wrong and State of Orissa was made liable.

l) N. Nagendra Rao & Co. Vs. State of A.P. [(1994) 6 SCC 205]

This is a case relating to suspected misuse of huge stocks of fertilizer, foodgrains and non-essential goods, which were seized by the District authorities. Actually there was no misuse except improper management of the accounts. this case went to the Supreme Court and it was held that State was liable vicariously for the negligence committed by its officers in discharge of public duty conferred on them under a statute. Regarding the sovereign immunity of the State here, the Court held that the traditional concept of sovereign immunity has undergone a considerable change in the modern times and the line of distinction between sovereign and non-sovereign powers no longer services. No civilised system can permit an executive to deal with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal system can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without remedy.

All the High Courts in India also dealt many cases dealing with tortuous liability of the State. There are instances where a similar type of function has been held sovereign as well as non-sovereign by different High Courts. Though the

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Supreme Court has laid down certain tests, it is also defective and confusing. A comprehensive legislation defining the extent of the State’s liability in tort is the only remedy.

In the United States also Federal Torts Claims Act, 1946 has been enacted to define the immunity of the Government for tortuous liability. However, in India, on the basis of the First Report of the Law Commission on “Liability of State in Tort”, a Bill was introduced before the Lok Sabha in 1969 and it has not yet become law. This was intended to define the liability of the Government towards third parties for the wrongs of its servants, agents and independent contractors employed for it and to remove the uncertainty in the liability of the State for torts.

6. Conclusion :

The doctrine of sovereign immunity which was borrowed from England with the question of immunity of the State has been substantially modified by the Crown Proceedings Act, 1947 in England. Even in India, many decisions of the Supreme Court have completely modified the rule of sovereign immunity of the State.

In determining whether claim of immunity should be allowed or not, the nature of the act, the transaction in the course of which it is committed, the nature of the employment of the person committing it and the occasion for it have all to be considered.

The rule of liability of the State for torts of its servants as laid down in the Steam Navigation’s case is very out-moded. In the modern age when the activities of the State have vastly increased, it is very difficult to draw a distinction between sovereign and non-sovereign functions of the State and we can not also put both of them in a water-tight compartment. The increased activities of the State have made a deep impact on all facts of an individual’s life and therefore, the liability of the State should accordingly be made co-existensive with its modern role of a welfare state as ‘salus populi suprema lex’ which means public welfare is the highest law and not be confined to the era of laissez faire (individualism) with the P and O Steam Navigation’s case signifies.

The old and archaic concept of sovereignty does not survive. Sovereignty now vests in the people. The legislature, the executive and the judiciary have been created and constituted to serve the people. Now the State is treated in performance of its functions like a private company and obviously liable for negligence of its officers as it has been evidenced in many of the cases referred above in this regard.

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CONTEMPT OF COURTS( An outline substantially based on decisions of

the Supreme Court and High Courts)

1. Source of the law of Contempts of Courts

i). Common Law of England.ii). Rulings of the superior courts - Supreme Court or High Courts.iii). Statutes :

a) I.P.C. - 175, 178, 179, 180 and 228.b) Cr. P.C. - 345.c) Contempts of Courts Act., 1971.

iv). Constitution of India.a) Supreme Court - Article 128.b) High Court - Article 215.

2. Court within the meaning of Contempts of Courts Act., 1971

i) Civil, Criminal and Revenue Courts, are courts within the meaning of the Contempts of Courts Act.,

ii) Supreme Court of India and High Courts are very much within the purview of the Act. That apart, they are Courts of record as declared by the Constitution of India. (Court of Record explained in paragraph 14)

iii) When a question arises as to whether an adjudicatory authority is a Court as distinguished from a quasi-judicial tribunal, it has to be decided in the light of whether it possesses all the attributes of a Court, due regard being had to the provisions of the Act creating it.

iv) The attributes of the Court may be summarised in the following words:-

a) It is constituted by the State for administration of Justice.b) Its pronouncement must be definitive and binding on the parties.

c) It must arrive at its decision on the evidence which the parties have a right to adduce.

d) It must possess authority to summon parties and their witnesses, to compel production of documents and to take evidence.

e) It has a legal duty to act judicially. f) It must have power to have his judgement or the order

enforced against the parties.

(Reference : Nihalauddin Vs. Tej Pratap Singh, 1966 All. LJ 460).

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v) Collector functioning under the Essential Commodities Act., 1955 is NOTT a Court within the meaning of the Contempt of Courts Act., 1976 (Vide State of MP Vs. L.C. Bahirani 1982 MPLJ 835(MP) - Division Bench).

vi) A Presiding Officer is an important competent of Court, not the whole of it.

3. Contempt of Courts - Object

i) To uphold the majesty and dignity of the Court ( Ref. : AIR 1969 Delhi 214, 1979 Cr. LJ NOTC 148 J&K)

ii) To maintain the continuity of the crystal clear flow of the stream of justice by sustaining the confidence of the public at large in the administration of Justice (Ref. AIR 1954 SC 10, AIR 1968 SC 1050).

Note : It is neither to protect an individual Judge or Magistrate nor to vindicate his/her prestige for which the proper remedy lies in an action for libel or defamation. Contempt is a wrong done to the public. It is an offence against the free society.

4. Classification of Contempts

I. First Classification

(i) (ii)Direct Constructive

(In the face of the Court) (Out of court)

(a) (b)Contempt in view of the

CourtContempt in the presence

of the Court (In the precincts, offices)

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II. Second Classification

(i) (ii)Civil Criminal

(a) Willful disobedience to the orders and processes of

the Courts(b) Intentional violation of an undertaking given to the

Court.

In the face of the Court Interference with due administration of Justice

Scandalising the Judge

5. Civil Contempt (Definition) vide Section 2(b) of Contempt of Courts Act., 1971 (Act Not. 70 of 1971)

“Civil Contempt” means willful disobedience to any judgement, decree, direction, order, writ or other process or a court or willful breach of an undertaking given to a court.

6. Criminal Contempt (Definition) vide Section 3(c) of Contempt of Courts Act., 1971 (Act Not. 70 of 1971)It means “publication” -

i) by words, spoken or writtenii) by signsiii) by visible representationiv) or otherwise of any matter or doing of any other act which :-

(a) scandalises or tends to scandalise or lowers or tends to lower the authority or any court.

(b) prejudices or interferes or tends to interfere with the course of any judicial proceeding.

(c) interferes or tends to interfere with or obstructs or tends to obstruct, the administration of Justice in any other manner.

7. Examples of Contempts of Courts from decided cases:-

i) Secretary of the Congress Committee wrote a recommendatory letter to the District Magistrate about the facts of the case ( AIR 1953 SC 185).

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ii) Use of threats by letters or otherwise to a party while his case is subjudice or abusing in letters to persons likely to be witnesses (AIR 1962 SC 1172).

iii) Orders of stay, injunctions, bail received from superior courts must receive close and prompt attention.

Unnecessary delay in dealing with them may well furnish grounds for an inference that it was due to a natural disinclination and may constitute contempt. (AIR 1969 SC 189)

iv) The Chief Minister delivers a speech on a subject which is subjudice in a writ petition before the High Court. with full knowledge - it amounts to interference with administration of Justice ( AIR 1970 SC 1821).

v) Circular directing Magistrates to ignore the decisions of the High Court tantamounts to Contempt of Court (AIR 1961 SC 1315).

vi) “Judges are guided and dominated by class hatred, class interests and class prejudices and where the evidence is balanced between a well-dressed pot-bellied rich man and a poor ill-dressed and ill-treated person, the Judge instinctively favours the former” - Chief Minister at a Press Conference - Contempt (AIR 1970 SC 2015).

vii) In the garb of transfer application, a person can not be allowed to make allegations of a serious nature, scandalizing the Court and imputing improper motives to the Judge trying the case - Contempt (AIR 1972 SC 989).

viii) A lawyer hurled shoes at the Judge in order to overawe and to bully him (AIR 1981 SC 1382).

ix) Comments on pending proceedings with a tendency to prejudice fair trial.

x) A person walking into the chamber of a Magistrate and insisting on cancelling the order he passed against him, else a serious consequence would follow.

xi) Assault on Magistrate.

xii) Insult to a Magistrate.

xiii) Private Communication with a Judge or Magistrate about a subjudice matter..

xiv) Threatening a counsel in a case.

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xv) Bullying witnesses.

xvi) Destroying documents in the custody of the Court.

8. Commitment of Contempt of Court by a Judge or a Magistrate

A Judge or a Magistrate may commit Contempt of his own Court (Vide Sec. 16 C.C. Act.)

i) Calling a Police Guard to turn out a lawyer without justification.

ii) A Judge Commenting in the Press and on Doordarshan about a case when appeal is pending. He endeavoured to justify his decision publicly when the matter was subjudice in the form of an appeal.

iii) An Executive Magistrate delivered judgement in a case u/s 145 Cr.PC after 8 months and 13 adjournments. (State Vs. P.C. Mali (1973) 39 C.LJ 458).

9. Defences to a charge of Contempt

i) Innocent publication or distribution of matter (Section 3).

ii) Fair and accurate report of judicial proceeding (Section 4).

iii) Fair criticism of judicial act (Section 5) - Comments on the merits of any case finally decided..

iv) Complaint against the presiding officers of Subordinate Courts to the High Court done in good faith (Section 6)

v) Publication of information relating to proceedings in chambers or Camera (Section 7)

vi) An order passed by a Court without jurisdiction is void at intio. Violation of such order is not contempt (1981 Cr.LJ 1880 and 1985 Cr.LJ 359)

10. Section 345 Cr.PC (You in the capacity of Court - Criminal or Revenue - may invoke the aid of Section 345 Cr. P.C. in appropriate situations when the circumstances so demand in the larger interest of Justice)

Section 345 Cr. P.C. - an outline

i) It gives special power to a Court to deal with certain cases of contempt.

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ii) The provisions of Section 345 Cr.PC are mandatory and must be strictly complied with.

iii) Basic principles of Natural Justice must be observed.

iv) The Court is not bound to record evidence in a proceeding u/s 345 Cr.PC.

v) It is incumbent to follow the provisions of Section 251 Cr.PC and to explain to the accused the particulars of the offence.

vi) So far as possible the exact words used by the offender should be recorded.

vii) The Court need not be unduly sensitive or unnecessarily be touchy as to its own dignity or authority.

viii) The finding of the Court needs to be recorded.

ix) The sentence which is limited to :-Fine upto Rs. 200/- in default simple imprisonment upto one month.

No sentence of substantive imprisonment.

11. Conditions for application of Section 345 Cr.PC.

i) Offence committed must be one of the following :-175 IPC, 178 IPC, 179 IPC, 180 IPC and 228 IPC.

ii) The offence must be committed during a judicial proceeding.

iii) Such Court must be a Civil or Criminal or Revenue Court including Registrar or Sub-Registrar when so directed by the State Government.

iv) Such offence must have been committed in the view of or in the presence of the Court.

v) Action must be taken before the Court rises on that day by taking cognizance of the offence.

vi) The offender must be given reasonable opportunity of showing cause.

vii) The Court must record.(a) facts constituting the offence.(b) the statement, if any, made by the offender.

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(viii) When the offence is under 228 IPC, the record should further show :-

a) the nature and stage of the judicial proceeding in which the court interrupted or insulted.

b) the nature of the interruption or insult.

12. Section 345 Cr.PC - five classes of contempt.

i) Intentional omission to produce a document by a person legally bound to do so (Section 175 IPC).

ii) Refusal to take oath when duly required to take (Section 178 IPC).

iii) Refusal to answer questions by one legally bound to state the truth (Section 179 IPC)

iv) Refusal to sign a statement made to a Public Servant when legally required to do so (Section 180 IPC).

v) Intentional insult to a Public Servant or interruption to a Public Servant at any stage of a judicial proceeding (Section 228 IPC)

13. Offences under Section 228 IPC - three choices

i) To make a complaint to J.M., Ist Class, u/s 340 Cr.PC, read with Sec. 195 Cr.PC.

ii) To try the offender summarily u/s 345 Cr.PC.

iii) To send him to the J.M. u/s 346 Cr.PC for heavier punishment.

(i) and (iii) - after taking cognizance.

14 Court of Record

A Court of record is one where the acts and judicial proceedings are enrolled for perpetual memory and testimony and which has the authority to fine and imprison for contempt of itself as well as of subordinate courts ( Delhi Judicial Service Association Vs. State of Gujarat reported in (1991) 4 SCC 406).

15. Reference to the High Court u/s 15 (2) of the Contempt of Courts Act - a broad procedure.

(a) Subordinate Courts may make reference to the High Court for taking proceedings under the Contempt of Courts Act.

(b) Before making reference,, Subordinate Court may hold a preliminary enquiry issuing show cause notice to the party and giving him a hearing.

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(c) Subordinate Court means any Civil Court, Criminal Court or Revenue Court subordinate to the High Court.

(d) Address the communication to the Registrar (Judicial) of the High Court.

(e) Submit it through the District Judge/District Magistrate, as the case may be.

(f) Mention the nature of the Contempt under the head “Civil Contempt” or “Criminal Contempt “. as the case may be.

(g) Give out the name, description, place of residence of the person charged.

(h) State the material facts constituting contempts including the date/dates, brief statement of the case in connection with which the contempt is alleged to have been committed.

(i) Transmit the documents, if relied upon, to the High Court.(j) Request for laying before the High Court and taking cognizance.(k) Your language should be clear, your statement of facts should be

precise and exact, and your decision to make a reference ought to be backed by reasons.

(l) Don’t allow your emotion to have any role, either in vitiating the reference or in drafting it.

(m) Objectivity, Detachment and Larger interests of the Administration of Justice shall be your guiding principles.

16. Contempt - Scandalising Court -

Accused hurled shoes at Magistrate - Conviction u/s 228 Cr. P.C. does not bar proceeding and conviction for Contempt.

Misconduct complained of falls under the contempt of Courts Act as well as Indian Penal Code.

Reference : 1992 Cr. L.J. 2130 (HP)

17. Contempt Proceedings - Nature -

(a) They are in the nature of a quasi criminal proceedings.

1977 CR. L.J. (NOTC) 253 Orissa.

18. Contempt - Standard of Proof.

Ingredients should be proved beyond reasonable doubt.

1984 Cr. L.J. 992 (Kant)

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19. Notings in office file, even if derogatory to Court’s Order - do not constitute Civil or Criminal Contempt.

The notings in the departmental files by the hierarchy of officials are meant for independent discharge of official duties and not for exposure outside. In a democracy, it is necessary that its steel frame in the form of Civil Service is permitted to express itself freely, uninfluenced by extraneous considerations.

Reference : AIR 1987 S.C 1554 or (1987) 3 Section 34.

20. Media and Court - right to make fair criticism of subordinate judiciary.

So long it does not undermine the integrity and dignity of the judiciary and the comments are not detrimental to the cause of the Judiciary as a whole, there is no contempt.

Reference : 1994 Supreme Court Cases (Criminal) 1485

21. Contempts of Courts - at a Glance

Table I

Sec. 1Short title & extent

Sec. 2Definition of Contempt

Sec.16Contempt by Judge,

Magistrate or other person acting judicially

Civil Contempt Criminal Contempt (Publication of any matter or the doing of any other

act which

Willful disobedience to any judgement, decree, direction, order, writ or other process of a court

Willful breach of an undertaking given to a

court.

(i) (ii) (iii)Scandalises or tends to scandalise, or lowers or

tends to lower the authority of, any court.

Predudices, or interferes or tends to interfere with, the due course of any judicial

proceeding

Interferes or tends to interfere with, or

obstructs or tends to obstruct, the

administration of justice in any other manner

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Table -IINot Contempt

Sec. 3Innocent

publication and distribution of

matter not contempt

Sec. 4Fair and accurate report of judicial proceeding not

contempt

Sec. 5Fair criticism of judicial act not

contempt

Sec. 6Complaint against presiding officers

of subordinate courts when not

contempt

Sec. 7Publication of information relating to

proceedings in chambers or in

camera not contempt except in

certain cases.

Sec. 13Contempts not punishable in certain cases

Sec. 8 other defences not

affected

Table - IIIPower and Procedure

Sec. 9Act not to

imply enlargement of

scope of contempt

Sec. 10Power of High

Court to punish

contempts of subordinate

courts

Sec. 11Power of High

Court to try offences

committed or offenders

found outside jurisdiction

Sec. 12Punishment for contempt

of court

Sec.14Procedure

where contempt is in the face of the

Supreme Court or a High Court

Sec. 15Cognizance of

criminal contempt in other cases

Sec. 17Procedure

after cognizance

Sec. 18Hearing of

cases of criminal

contempt to be by Benches.

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Table - IVAppeal/Limitation/Applicability/Rule -making Power etc.

Sec. 19Appeal

Sec. 20Limitation for

actions for contempt one year

Sec. 21Act not to apply to Nyaya Panchayats

or other village courts.

Sec. 22Act to be in

addition to, and not in derogation of,

other laws relating to contempt

Sec. 23Power of Supreme Court and High Courts to make

rules

Sec. 24Repeal

Table – VPower of the Courts to punish for contempt

Power of subordinate courts (Civil, Criminal & Revenue Courts). May punish under section 345(1) Cr.PC for offences u/s 175, 178, 179, 180 & 228 IPC; Fine not exceeding Rs. 200/- and in default; SI for a terms extending to 1 month

Orthereafter discharge the offender or remit the punishment u/s 348 Cr.PC on submission to the order or on apology. being tendered.

Power of the High Court.

(1) to punish for contempt of itself (Article 215 of the constitution)(2) to punish for contempt of subordinate courts except for these contempts where such contempt is an offence under IPC (vide Sec. 10 Contempt of Courts Act)(3) SI upto 6 months or fine upto 2000/- or both (Sec. 12, Contempt of Courts Act.)

Power of the Supreme Court

(1) To punish for contempt of itself (Article 129, Constitution of India).

(2) It being a Court of record, it has inherent power to punish for Contempt of a Subordinate Court.

(3) To deal with any contempt case in the exercise of its appellate jurisdiction under the constitution or under section 19 of the Contempt of Courts Act.)

(4) SI upto 6 months or fine of Rs. 2000/- or both (Section 12 of the Contempt of Courts Act.)

Table - VIProcedure for Contempt of Court

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Procedure before

subordinate courts .Summary Procedure

by Subordinate

Court 345 Cr. P.C.

Procedure before

Supreme Court or High

Courts

Where contempt is in the face of

the Supreme Court or High

Court (Procedure as in Sec. 14 of the Contempt of Courts Act.)

Criminal contempt other than referred to

in Sec. 14 (cognizance u/s

15 of the Contempt of

Courts Act and procedure after cognizance u/s

17 of the Contempt of

Court Act hearing by

Benches (Sec 18)

(i) u/s 345 (1) Cr.PC, a Subordinate Court is empowered to deal with five kinds of contempt, Ss. 175, 178, 179, 180 and 228 IPC and sentence the offender itself.

ii) or if the court thinks that the case calls for more severe sentence or that a regular trial is desirable, it may forward the accused to a Magistrate having jurisdiction to try the same (Sec. 346 Cr.PC.)

iii) or even after sentence under section 345 Cr.PC or action u/s 346 Cr.PC, the court may thereafter discharge the offender or remit the punishment if there is submission to the order or tender of apology (Section 348 Cr.PC)

Limitation : Limitation for actions for contempt -one year (Section 20 Contempt of Courts Act.)

22. Bibliography.

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(i) The Constitution of India - V. N. Shukla, Ninth Edition by Mahendra P. Singh..

(ii) Code of Criminal Procedure - D. Basu.

(iii) Contempt of Courts Act (Act 70 of 1971) by G. C. Venkata Subbarao..

(iv) All India Reporter.

(v) Criminal Law Journal.

(vi) Supreme Court Cases

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INDIAN PENAL CODE - AN INTRODUCTION

1. Title - Its meaning

(a) It consists of three words, namely :

- Indian- Penal- Code

(b) Out of these three, the key word is “code”.

Code - What is means ?

It is systematic, complete, written collection of a body of laws, arranged methodically in a coherent manner. A Code is the end product of codification. Codification is a process which consists of compilation arrangement, systemisation and promulgation of a body of laws by the authority competent to do so.

Examples:

i. Code of Menuii. Code of Napoleaniii. Code of Justinianiv. Hindu Codev. Indian Penal Codevi. Criminal Procedure Codevii. Civil Procedure Code

(c) Codification - its advantages

i. Simplicityii. Symmetryiii. Intelligibilityiv. Logical coherencev. Certainty

(d) Penal - What it means ?

It is an adjective. It qualifies the noun “code”. It means “relating to punishment”.

Indian Penal Code is a penal statute, because it not only defines offences but also prescribes punishments for commission of such offences.

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(e) “Indian”

The term “Indian” signifies that it is the penal code for India. The [preamble indicates that the I.P.C. was enacted to provide a General Penal Code for India.

(f) India in the context of the IPC

IPC extends to the whole of India except the State of Jammu & Kashmir.

Article 1(3) of the Constitution of India, read with the First Schedule, will tell you the extent of the territory of India.

India at present consists of 25 States and 7 Union Territories.

The total area of the country is 3,287,263 sq. km.

Besides the land territory indicated above, the Indian territorial jurisdiction also extends to that portion of the sea lying along and washing its coast, to a distance of twelve nautical miles into the sea measured from the appropriate base line.

2. Historical Background

(a) The year 1833 was very crucial in the history of development of law in British India.

(b) The Charter Act of 1833 was passed by the British parliament with a view to facilitating codification of Indian Laws.

(c) The Charter Act of 1833

(i) established an All India Legislature namely Governor General in Council, for the whole of British India.(ii) created the office of Law Member in that Council.(iii) provided for the appointment of a Law Commission.

(d) Mr. T.B.Macaulay was appointed to fill the office of the Law Member.

(e) In Pursuance of the Charter Act of 1833, the first Law Commission was set up in 1834.

(f) Mr. Macaulay, later on Lord Macaulay, became its President.

(g) The first task assigned to the Law Commission was to prepare a draft penal code for India.

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(h) A draft Code was drawn up and submitted to the Governor-General in Council on the 14th October 1837.

(i) The draft was then circulated to the Judges and the Legal Advisers of the crown for eliciting their comments and views.

(j) It was thereafter revised thoroughly.

(k) The bill so revised remained pigeon-holed for many years.

(l) It was ultimately passed and placed on the statute book on the 6 th

October, 1860.

3. Date of commencement of the Indian Penal Code

The IPC was brought into force on the first day of January 1862. Hence, its date of commencement is 1.1.1862.

It has, therefore, been in force for more than 128 years.

4. I.P.C. its nature

(i) It is a codifying statute.

(ii) It contains the general law of crimes in India.

(iii) It is a substantive law. The Code of Criminal Procedure is an adjective law.

(iv) It is exhaustive in respect of the matters covered by it. It is a complete Code.

(v) It lays down the general principles of criminal liability.

(vi) It also provides for general exceptions to criminal liability.

(vii) It defines specific offences and prescribes punishments therefor.

5. Scheme of the Code

(a) The Code is broadly divided into twenty-three Chapters.

(b) To be more precise, the Code at present contains 26 Chapters, because three Chapters, namely, VA, IXA and XXA have been added subsequently.

(c) Each Chapter is again sub-divided into several Sections.

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(d) Each Section has been given a numeral figure for distinguishing it from the others.

(e) The last Section of the IPC bears the number 511.

(f) That, however, does not imply that the IPC has 511 Sections.

(g) Many Sections have been added and several Sections have been omitted.

6. Arrangement

(a) There are two broad divisions of the Code, they are :

(i) General Principles and(ii) Specific offences.

(b) Specific offences may be roughly categorised under two heads, namely (i) offences against the State and the public and (ii) Offences against the person and the property.

(c) The general principles are embodied in Chapters I, II, III, IV, V, VA and XXIII as detailed below :

Chapter I - Title and extent of operation of the Code.Chapter II - Definition of certain terms.Chapter III - Punishments. (General)Chapter IV - General ExceptionsChapter V - Abetment of offencesChapter VA - Criminal conspiracyChapter XXIII - Criminal Attempts

(d) Specific offences

Chapter VI to - Offences against the State and the public

Chapter XVChapter XVI - Offences affecting human body.Chapter XVII - Offences against the properties

(corporeal and Incorporeal)Chapter XIX - Miscellaneous offencesto Chap. XXII

7. Jurisdiction

(a) IPC has two kinds of jurisdiction, namely,

(i) Intra-territorial (Sec.2).(ii) Extra-territorial (Sec.3 and 4).

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(b) If any offence under the IPC is committed by a person within the territory of India, whether Indian or foreigner, he is liable to be prosecuted and punished by the court in India having jurisdiction.

(c) If an Indian commits an act of commission or omission outside India, which is an offence under the IPC, he may still be prosecuted and punished under the IPC by a competent Indian Court, even though the act may not constitute an offence under the law of that land.

(d) If any offence under the IPC is committed on any ship or aircraft, registered in India, the person committing it shall be liable to be dealt with under the IPC by a competent Indian Court, even though the ship or aircraft, at the time of commission of such offence has remained outside India.

Note : i. In this context, reference may be made to Sec.188 of the Criminal Procedure Code.

ii. A person can not however, be prosecuted and punished twice for the same offence, one under the IPC and the other under the Foreign Law.

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CONCEPT OF CRIMES - AN INTRODUCTION

1. Crime - What it is ?

(a) The term ‘Crime’ has not been defined in any statute. No Act of any Indian Legislature gives us a definition of it.

(b) It is difficult to define ‘Crime’. That does not mean that nobody has attempted any definition.

(c) Jurists, social scientists, criminologists and thinkers have no doubt endeavoured and evolved definitions of ‘Crime’.

(d) Each one of them has emphasised upon a particular aspect, because he has looked at ‘Crime’ from his own angle. The result is that none of the definitions appears to be very precise and fully satisfactory.

(e) Actually, ‘Crime’ is what a particular society at a given time says it is. It reflects the values of the society.

(f) I am going to place before you some definitions of crime as constructed by some eminent persons just to give you an idea as to what the concept of crime is, at least definitionally and to acquaint you with their formulations.

2. Definitions of crimes

I have chosen those definitions which are founded upon “Law” and adopted those authorities who carry greater weight.

(a) Black stone

“A crime is an act committed or omitted in violation of public law forbidding or commanding it”.

(b) Sir James Stephen

“Crime is an act which is both forbidden by law and revolting to the moral sentiments of the society”.

(c) Prof. Kenny

“Crimes are wrongs whose sanction is punitive and is no way remissible by any private person but is remissible by the crown alone, if remissible at all”.

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(d) Halsbury’s Laws of England

“A crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment.

“While a crime is often also an injury to a private person, which has remedy in a civil action, it is an act of default contrary to the order, peace and well being of society that a crime is punishable by the State”.

3. Marxian hypothesis of crime

Our study of the concept of crime can not be complete unless we expose ourselves to the Marxian hypothesis of crime. You may or may not accept such theory but you should know it at least. Please think and try to find out for yourself whether there is any truth in it. I quote from the authorities:-

(a) “An act is criminal because it is in the interests of the ruling class to so define it”.

(b) “Persons are labelled criminals, because so defining them serves the ruling class”.

(c) “Crime varies from society to society depending on political and economic structures of the Society”.

(d) “Crime directs the hostility of the oppressed away from the oppressors and towards their own class.

4. Elements of crime

(a) Broadly speaking, it has two elements.- physical- mental

(b) The physical element is known as “Actus Reus”. The mental element is called “mens Rea”.

(c) The literal meaning of “Actus Reus” is as given below :

Actus - deedReus - forbidden

(d) The literal meaning of Mens Rea is “guilty mind”

(e) According to Prof. Kenny, “Actus Reus” means “such result of human conduct as the law seeks to prevent.

(f) Strictly speaking, Actus Reus is constituted by the event and not by the activity which caused the event.

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(g) Actus Reus may consist of both consequences and circumstances.

(h) In case of murder, the actus reus is the death of a human being, which is the event, caused by another human being (i) Death may be caused by various means, such as shooting, stabbing, poisoning etc. Actus Reus will really refer to the event, that is, the causing the death of a human being by a human being, (ii) That does not mean that whenever death of a human being is caused by another human being, it shall constitute ‘Murder’.

(i) The act alone is not sufficient. The act and the intent must combine together to constitute crime.

(j) The “intent” here is the mental component of crime, which is called “Mens Rea”.

(k) Mens Rea is, therefore, an essential ingredient of crime, which refers to the condition of Mind. In other words, there must be a blame-worthy condition of mind, otherwise there shall not be a crime (subject to certain exceptions).

(l) There were so many water-proofs hanging outside your class-room. It was raining heavily. You had also brought your own water proof. While leaving the class, you took away a water-proof believing bona fide that it was yours. Ultimately, it was found that it belonged to another probationer, although it looked like the one you had.

Did you commit theft,No, No

Why ? There was no “Mens Rea”. You did not and could not have the dishonest intention” to take.

(m) We may, therefore, formulate :

Crime = Actus Reus + Mens Rea

This equation holds good in respect of all conventional and traditional crimes. We shall discuss the exceptions later on.

5. Concept of Crime - An analysis

From what has already been stated, it will appear that crime is

(a) either an act or an omission

(b) the act should be something forbidden by law.

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(c) the omission must relate to something not performed, although Law commanded its performance;

(d) “omission” must be an illegal omission, that is, there must be a legal duty to do but it is not done. Example: The Officer-in-Charge of Mussoorie Police Station, sees an accused in the police lock-up being beaten up by a Head Constable. The O.C. does not do anything. It is not only an omission but it is also an illegal omission because it is his legal duty to prevent such act. The O.C. commits a crime.

(e) The act alone is not sufficient. The mind must be at fault. In other words, Mens Rea must be there.

(f) Law dubs an act or omission as crime, when the society perceives the same to be injurious. The question of injury, either actual or threatened, is, therefore, associated with the concept of crime.

In this context, it is relevant to mention that according to the Russian Criminal Procedure, “A socially dangerous act shall be deemed to be a crime”. Hence, social danger is a test of criminality.

(g) Crime is something, which must have resulted from human behaviour. If an ‘ox’ gores you and thereby breaks your bone, in circumstances where its master is not in anyway responsible for negligence or rashness etc, then crime can not be said to have been committed, although you suffered a fracture.

(h) Crime is a violation of that branch of public law, which may be described as “criminal law”.

(i) The sanction prescribed for commission of crime is ‘punishment’. Examples : If your servant steals your wrist watch, he may be jailed and also fined. Here, imprisonment and fine are the punishments.

If a husband poisons his wife to death with intention to kill her, he commits murder. He may be sentenced to death or imprisonment for life. These are the alternative punishments prescribed for murder.

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STAGES OF CRIME

1. Introduction

I have already introduced the concept of crime to you. You may please advert to the Part-I of my lecture note on that topic. Today, I propose to cover another area relating to crime. That is what may be described as “Stages of a Crime”.

2. Stages of a Crime

There are four stages of a crime, from conception to commission. They are called :(i) Intention(ii) Preparation(iii) Attempt(iv) Commission

3. Intention

(a) Intention is a condition of mind.

(b) Intention is the design with which a crime is committed.

(c) It may be resolved into two components, namely foresight and desire.

(d) Suppose you are in a position to foresee the consequence of your act and at the same time, desire such consequence to happen, then your doing of that act will be intentional. In other words, you will be said to have intended it.

(e) Hence, the combination of foresight and desire is what constitutes Intention.

(f) Every person is presumed to know the natural and probable consequences of his own action and he is responsible for the same.

(g) Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice (Stephen).

4. Motive

(a) Intention is, however, not to be confused with Motive.

(b) Motive is what prompts a person to form an intention.

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(c) A crime is generally not committed for the sake of crime itself. There is always an ulterior objective. In the context of a crime, if you ask why it was committed the answer is what may be called as “Motive”.

(d) ‘X’ was murdered. Why ?

Ans. For gainFor revenge

Here, gain or revenge, as the case may be, is the motive behind the murder.

(e) Evidence of motive is relevant but not essential for the establishment of a crime.

(f) Motive is relevant, because it throws or tends to throw light over “Intention” which is covered by the expression “Mens Rea”. An evil intention is a form of Mens Rea.

(g) Absence of Intention may be a defence at a criminal trial but absence of motive is not. Sometimes, Motive is known only to the criminal. That apart, a motiveless crime is also a crime.

(h) Motive does not affect criminal liability, although it may be taken into account in determining the nature and quantum of punishment to be inflicted upon the guilty person.

(i) Motive, however, pure or laudable it may be, will not exonerate the criminal.

Examples :

A mother kills her minor son, who is suffering from an incurable disease and having extreme unbearable pain, out of compassion. She is as much guilty of murder as any other person.

A low paid employee, while under severe financial strain, has not money. His wife is critically ill and will die if a particular injection is not administered to her immediately. He steals that medicine from a pharmacy in order to save the life of his wife. His motive, however, pure it may be, will not excuse him from the criminal charge of theft.

5. Preparation :

It consists in devising or arranging means or measures for the commission of a crime.

Example :

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Two young men, A and B, want to marry ‘X’ a girl. A intends to kill B, so that he may marry X. A procures poison, and mixes the poison with food. These are preparation.

6. Attempt

(a) It is the direct movement towards the commission of a crime after the preparation has been completed.

(b) It really means that with the intention still subsisting, and after the preparation has been completed, the accused does something more in the direction of the commission of the crime but for circumstances beyond his control, he does not succeed in committing the crime aimed at.

(c) Intention followed by preparation and completion of preparation followed by an act done towards the commission of the crime is what is called “attempt”.

(d) Attempt begins where the preparation ends.

(e) Attempt need not necessarily be the penultimate act towards the completion of the offence.

7. Punishments

(i) Is mere intention to commit a crime punishable?

Ans. No, A bare intention, an intention simpliciter unaccompanied by any overtact is not punishable under the law.

It is said that thoughts of men are not triable. Intention, so long as it remains confined within the four walls of the mind, is not punishable.

An agreement to commit an offence is a kind of criminal conspiracy. A criminal conspiracy of this kind is punishable even if no overt act is done in pursuance thereof. It should, however be noted that the gist of the offence of criminal conspiracy is agreement of two or more persons.

Hence, it will not be correct to say that mere intention is what has been made punishable in the context, of the offence of criminal conspiracy.

Example :

‘A’ intends to kill ‘B’. So long as his intention rests in his mind, it is not punishable, although the offence comtemplated is murder.

But if A holds out a threat to B by saying “I shall kill you”.

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That threat is punishable under the name “Criminal Intimidation” vide the definition as given in Section 503 IPC. Here again, what is punished is not the intention to kill but the threat to the person coupled with the intent to cause alarm.

(ii) Is mere preparation to commit an offence punishable ?

Ans. Generally not, But there are certain exceptional cases where mere preparations have been made punishable under the Indian Penal Code.

Three glaring examples are :

(a) Preparation to wage war against the Government of India (Sec.122 IPC).

(b) Preparation to commit depredation on the territory of any power at peace with the Govt. of India (Sec. 126 IPC).

(c) Preparation to commit docoity (Sec. 399 IPC).

(iii) Is attempt to commit an offence punishable ?

Ans. Generally Yes, attempt to commit those offences under the IPC which are punishable only with fine are not covered by Sec.511 IPC, which is the general or residuary section in the IPC for the punishment of attempts.

In the IPC, attempts have been dealt with in three different ways. They are as indicated below :

(i) The first group consists of those cases where the principal offence and the attempt to commit that offence have been dealt with and made punishable by same section. As for Example : Waging war against the Govt. of India and attempt to wage war against the Govt. of India are covered by the same section,

namely, Sec. 121 IPC and made punishable to the some extent. Some other examples are : 161, 162, 163, 213, 121, 124 etc. IPC.

(ii) The second group relates to those cases where the principal offence and the attempt to commit that offence have been dealt with by separate sections and different punishments have been prescribed.

As for example, Murder is punishable under section 302 IPC, but attempt to commit murder under Sec. 307 IPC.

Other Examples are : 304 and 308 IPC

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392 and 393 IPC

(iii) Third group refers to those cases of attempts which have not been expressly provided for, that is, those attempts, which do not fall either under group I or under group II.

Sec 511 IPC is the residuary or general section for attempts.

Even Sec. 511 IPC does not apply to those offences which are punishable with fine only.

Sec. 511 IPC can not also be attracted to the Non-IPC offences. In other statutory offences, attempts will be punishable only when they have been made punishable thereunder but not otherwise vide Sec. 40 IPC.

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ADMINISTRATION OF JUSTICE

1. (a) Administration of Justice is a most essential function of the State.

(b) It means exercise of Judicial power to maintain and uphold rights and punish wrongs.

(c) It consists in the use of Government machinery of the STATE in enforcing rights or redressing wrongs.

(d) It involves :-

(i) two parties - plaintiff and defendant (in a civil case)or

the complainant and the accused (in a criminal case instituted on private complaint).

orthe prosecution and the defence (in any criminal prosecution).

(ii) a right claimed or the wrong complained of by the former against the latter.

(iii) a Judgement of the Court delivered at the end of the Trial.

(iv) Execution of the operative part of the Judgement.

(e) Justice is administered by the Courts according to Law.

2. System of Courts in India

(a) At the apex, that is, at the national level, there is the Supreme Court of India.

(b) At the State level, there are High Courts. Each High Court is the head of the Judiciary in the State.

(c) At the district/sub-divisional levels, there is a system of Courts, which Courts may be described as Subordinate Courts, in the sense that they are all subordinate to the High Courts.

3. Jurisdiction of the Supreme Court

(a) It is a Court of record and as such, it has the power to punish for its contempts. (Article 129)

(b) Original Jurisdiction (Article 131).

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(c) Writ Jurisdiction for enforcement of the Fundamental Rights (Article 32).

(d) Appellate Jurisdiction in respect of Constitutional, Civil and Criminal matters (Articles 132, 133, 134 and 136).

(e) It is the highest Court of Appeal in the country.

(f) Advisory Jurisdiction (Article 143).

4. Authority of the Supreme Court

(a) The law declared by the Supreme Court is binding upon all the Courts functioning in India (Art. 141).

(b) All authorities - Civil and Judicial, in India must act in aid of the Supreme Court. (Article 144).

5. Jurisdiction of the High Courts

(a) Each High Court is a Court of Record. It has power to punish for contempt of itself (Article 215).

(b) Original jurisdictions in Civil and also in criminal matters. All the, High Courts do not possess original jurisdiction but some of them as for example, Calcutta, Bombay and Madras High Courts have it. Delhi High Court also has original jurisdiction in Civil matters.

(c) Writ Jurisdiction - for enforcement of the fundamental rights and other legal rights (Article 226).

(d) Appellate Jurisdiction in respect of Civil and Criminal cases decided by the subordinate Courts.

(e) Revisional Jurisdiction - particularly what has been conferred under the Civil and Criminal Procedure Codes.

(f) Administrative Jurisdiction over the subordinate Courts, such as superintendence, control and discipline in respect of the subordinate Courts and their Presiding Judges.

6. Administration of Justice - division

(a) It is divided into two branches - namely, Civil Justice and Criminal Justice.

(b) Civil Justice is concerned with enforcement of the Rights whereas the Criminal Justice aims at punishment of the offenders.

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(c) The wrongs which give rise to and form the subject matters of civil proceedings are known as “Civil Wrongs”.

(d) The wrongs which give rise to and form the subject matters of Criminal Proceedings are called “Criminal Wrongs” or “Crimes”.

(e) Civil and Criminal Justices are administered by two different sets of Courts, designated as “Civil Courts” and “Criminal Courts” respectively.

(f) The procedures followed for administration of these two kinds of Justice, Civil and Criminal, are different.

(g) The proceedings in a Civil Court are regulated by the Civil Procedure Code whereas the proceedings in a criminal Court are governed by the Criminal Procedure Code.

(h) Broadly speaking, Civil Justice is remedial whereas Criminal Justice is punitive.

(i) There are different grades of Civil and Criminal Courts.

7. Organisation of the Courts at the district levels

This topic ought to be dealt with under two separate heads, namely Civil and Criminal.

8. Civil Courts subordinate to the High Court

(a) Basically, there are three different grades, as shown below :

First Grade

District JudgeAdditional District Judge

Second Grade

Assistant District JudgeSubordinate JudgeCivil Judge, Grade I

Third Grade

MunsifCivil Judge, Grade II

(b) The District Judge is the Head of the Administration of Civil Justice appertaining to a district.

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(c) Additional District Judges are there to assist the District Judge in administering Civil Justice.

(d) Additional District Judges have judicial powers similar to that of a District Judge, but an Additional District Judge does not get authority to hear an appeal or to try a case unless it is assigned to him by the District Judge.

(e) Judges of the 1st Grade and the 2nd Grade possess both original and appellate jurisdictions.

(f) Judges of the 1st Grade may be conferred with revisional powers also.

(g) Judges of the 2nd Grade are original Courts of unlimited pecuniary jurisdiction.

(h) The Judges of the 3rd Grade are Courts of original jurisdictions with limited financial powers.

(i) Different nomenclatures are employed in different parts of the country, as for example, in West Bengal, a Judge of the 2nd Grade is called Assistant District Judge, whereas in Bihar, he is designated as subordinate Judge. In West Bengal, Munsif is a Civil Judge of the lowest grade. He is called Civil Judge - Grade II in some other parts of the country.

9. Small causes Courts

(a) A “small causes Court” means a Court constituted under the Presidency Small Causes Act or the Provincial Small Causes Court.

(b) A Small causes court tries suits which are triable only by such a Court.

(c) Matters of small nature, which do not involve complicated questions of title, are generally the subject-matters of proceedings in a small causes court.

(d) The procedure followed by a small causes court for trial is simpler and shorter than that of a Civil Court.

10. Criminal Courts subordinate to the High Court

(a) Court of Sessions

(b) Judicial Magistrates of the First class and in Metropolitan areas, Metropolitan Magistrates.

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(c) Judicial Magistrates of the Second Class.

(d) Executive Magistrates.

(e) Criminal Courts constituted under any law other than Cr. P.C. such as Special Courts under the Essential Commodities Act. 1955.

11. Court of Sessions

(a) Each State is divided into several sessions divisions.

(b) Each sessions division is generally co-extensive with a district.

(c) There is a Court of sessions for each sessions division.

(d) The Judge who presides over the Court of Sessions is called the “Sessions Judge”.

(e) The Sessions Judge is assisted by the Additional Sessions Judges and Assistant Sessions Judges.

(f) The Additional Sessions Judge and the Assistant Sessions Judge also exercise jurisdiction over the Court of Sessions, on being assigned to do so by the Sessions Judge, by way of transfer of cases to their respective files.

12. (a) A Chief Judicial Magistrate is a judicial Magistrate, First Class, who has been placed in charge of a district.

(b) A Judicial Magistrate, First Class, who has been placed in charge of a sub-division is called Sub-Divisional Judicial Magistrate (SDJM).

(c) Powers of a Judicial Magistrate, First Class or second class, may be conferred upon any person, who holds or has held any post under the Government, by the High Court at the request of the Central or State Government. Such persons are called Special Judicial Magistrate.

(d) The Chief Judicial Magistrate and all other Judicial Magistrates in a district are subordinate to the Sessions Judge.

13. Offences - by which Court triable

(a) Offences are triable either by a Court of Sessions or by a Court of Judicial Magistrate.

(b) Which offences are triable by which Courts are indicated in column number 6 of the First Schedule appended to the Code of Criminal Procedure.

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(c) Generally speaking, serious offences are triable by the Court of Sessions, such as murder, dacoity etc. Other offences are triable by the Judicial Magistrates.

(d) Hence, from the point of view of competence of the Courts to try, offences may be divided into two categories, namely,

(i) Exclusively triable by the Court of Sessions.(ii) Triable by the Court of Judicial Magistrate, First Class.(iii) Triable by any Magistrate, which also includes Judicial

Magistrate, Second Class.

(e) Courts of Judicial Magistrates are not only subordinate to the Sessions Judge but they are also inferior to the Court of Sessions in the hierarchical structure of the Courts.

(f) When a particular offence is triable by a Court of Sessions, which grade of Judge, namely, Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, should try it, will also depend upon the maximum punishment prescribed for such offence and the sentencing power of that grade. An Assistant Sessions Judge, can not try a case of murder because he may inflict punishment not exceeding 10 years of imprisonment, whereas the punishment prescribed for murder is either death or imprisonment for life. Hence, it has to be tried either by a Sessions Judge or by an Additional Sessions Judge, who is competent to pass a sentence prescribed by Sec. 302 IPC for the offence of murder.

14. Sentencing powers of the different trial Courts are indicated below :-

(a) Sessions Judge any sentence authorised by law, including death, imprisonment for life and fine of any amount as may be authorised by that particular penal section of Law (no upper ceiling for him) but a sentence of death shall be subject to confirmation by the High Court.

(b) Additional Sessions Judge Same as the Sessions Judge.

(c) Assistant (i) Imprisonment for a term not exceeding 10 years.

Sessions Judge (ii) Fine as authorised by Law - no upper ceiling for him.

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(d) Chief Judicial (i) Imprisonment upto seven years. Magistrate

(ii) Fine - as authorised by Law - not upper ceiling for him.

(e) Judicial (i) Imprisonment upto three years. Magistrate, (ii) Fine not exceeding 5,000/- First Class

(f) Judicial (i) Imprisonment upto one year. Magistrate, Second Class (ii) Fine not exceeding 1,000/-

(g) Chief Same as Chief Judicial Magistrate. Metropolitan Magistrate

(h) Metropolitan Same as Judicial Magistrate, First Class.

Magistrate

15. Schemes of Separation of the Judiciary from the EXECUTIVE

In pursuance of the scheme of separation, two categories of Magistrates have been created. They are :-

(i) Judicial Magistrates.(ii) Executive Magistrates.

16. Broad Division of the Magisterial Functions

Judicial Magistrates are appointed by and they remain under the control of the High Court whereas the Executive Magistrates are appointed by the State Govt. and they are placed under the control of the State Govt.

Broadly speaking, such functions of a Magistrate, as are essentially judicial in nature have been entrusted to the Judicial Magistrates while functions which are executive or administrative in nature have been allotted to the Executive Magistrates.

17. Revised set-up of Criminal Courts

Executive Magistrates are Criminal Courts within the meaning of the Code vide Sec.6 (iv) Cr.P.C.

When an Executive Magistrate acts judicially, say for instance, when he holds an inquiry U/S 116 CrPC in connection with a security proceeding U/S 107 CrPC he functions as a court but when he does something purely administrative or executive in nature, he does not perform the role of a court. When an Executive

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Magistrate, in exercise of the power vested in him U/S 129 CrPC commands an unlawful assembly to disperse, he does not do so in the capacity of a Criminal Court.

18. Appointment of Executive Magistrates

Executive Magistrates are to be appointed by the State Government.

Executive Magistrates may be appointed not only for every district but also for every metropolitan area vide Sec. 20(1).

19. Absence of gradation amongst the Executive Magistrates

Unlike the Judicial Magistrates, the Executive Magistrates have not been graded as Executive Magistrate, First Class and Executive Magistrates, Second Class.

20. Division of Executive Magistrates

The Executive Magistrates, may, however, be divided under the following five heads :-

(1) District Magistrates - Sec. 20(1).(2) Additional District Magistrate - Sec. 20(2).(3) Sub-Divisional Magistrates - Sec. 20(4).(4) Subordinate Executive Magistrates - Sec. 20(1).(5) Special Executive Magistrate - Sec.21.

21. Subordination of Executive Magistrates

(a) Executive Magistrates, other than Additional District Magistrate, employed in a district, are subordinate to the District Magistrate.

(b) All Executive Magistrates attached to a Sub-Division are subordinate to the Sub-Divisional Magistrate.

(c) Additional District Magistrates are not subordinate to the District Magistrate. The ADM is, however, an officer below the rank of DM.

REFERENCE : Sec. 23(1)

22. Territorial Jurisdiction of the Executive Magistrates

Their jurisdiction extends throughout the district unless it is restricted. Such restriction may be imposed by the District Magistrate by defining the local limits of each Executive Magistrate. This authority of the District Magistrate is, however, subject to the control of the State Government vide Sec. 22(1) and Sec. 22(2).

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23. Distribution and Allocation of Business

District Magistrate is empowered to distribute business among the Executive Magistrates subordinate to him and also to allocate business to the Additional District Magistrates vide Sec.23(2).

In this context, it may be remembered that all or any of the powers of a District Magistrate under the Code may be conferred upon the Additional District Magistrate by the State Government vide Sec.20(2).

24. Jurisdiction of a Court

(a) It may be of three kinds namely :(i) in respect of subject-matter(ii) Territorial(iii) Pecuniary

(b) A Judicial Magistrate, 1st Class, cannot try a case of dacoity, although the offence has been committed within the local limits of his territorial jurisdiction. This is because the offence of dacoity is exclusively triable by a Court of Sessions.

(c) A suit for recovery of possession of a property valued Rupees one lakh can not be filed in a Court of Munsif, because it is in excess of his pecuniary jurisdiction.

25. Combination of designations

(a) When we use the term, the “District and Sessions Judge”, we imply that the person referred to has combined within himself two different capacities, namely, District Judge and Sessions Judge.

(b) When he deals with Civil matters, he uses the designation “District Judge”.

(c) When he deals with criminal matters, he describes himself as “Sessions Judge”.

(d) He has two identities, one in relation to his civil jurisdiction and the other in respect of his criminal jurisdiction.

(e) Similarly when we say “Munsif - Magistrate”, it connotes two different identities, “Munsif” for Civil and “Magistrate” for Criminal matters. While trying a civil suit, he should write as Munsif. When he holds a criminal trial, he acts as Judicial Magistrate.

(f) Hence, such mixture in nomenclature should not create any confusion.

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Code of Criminal Procedure, 1973(Act-II of 1974)

Introductory Concepts and Basic Principles

1. Cr.PC - What it is ?

(a) It is a Central Act, which means, it is an Act passed by the Indian Parliament.

(b) It is described as a Code.

2. Code- its meaning

(a) A Code is the end product of codification

(b) Codification is a process which consists of compilation, arrangement, systemisation and promulgation of a body of laws by an authority competent to do so.

(c) Examples of Code - Indian Penal Code, Civil Procedure Code and Criminal Procedure Code.

(d) Advantages of codification - simplicity, symmetry, intelligibility and certainty.

3. Cr. P.C. - its nature

(a) Basically, it is a procedural or adjective law.

(b) It consolidates and amends the law relating to Criminal Procedure.

4. Cr.PC - its main scope

(a) It provides for a machinery for the prevention and punishment of offences under the Indian Penal Code and other substantive criminal law of the Land.

(b) It lays down the procedures for investigation, inquiry and trial.

Note : Substantive Criminal Law - it is that part of the Criminal Law which creates offences and prescribes punishments for the same, such as Indian Penal Code, Dowry Prohibition Act, Arms Act, Civil Rights Protection Act. etc.

5. Cr. P.C. - its basic objectives :

(a) to further the ends of Criminal Justice.

(b) to ensure the observance of the basic principles of Natural Justice.

(c) to complement and actualise the substantive Criminal Law.

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(d) to afford to the accused reasonable opportunity, fair deal and just trial.

(e) to expedite investigation, inquiry and trial.

(f) to provide for safeguard against misuse and abuse of the process of criminal law.

6. An outline of the historical background

(a) The year 1882 was crucial in the history of development of Criminal Procedure in India.

(b) Before 1882, law relating ton Criminal Procedure was not uniform.

(c) The Criminal Procedure Code, 1882, was enacted to introduce for the whole of British India, as it was at that time, a uniform criminal procedure.

(d) The Cr.PC of 1882 was replaced by a new Code of Criminal Procedure in the year 1898.

(e) The Cr.PC of 1898 was amended from time to time. It was subjected to drastic changes in 1923 and again in 1955.

(f) The Cr.PC of 1898 was repealed by the existing Code of Criminal Procedure, 1973(Act II of 1974).

(g) The new Cr.PC, 1973 was substantially founded upon the recommendations of the Law Commission of India, as embodied in its 14th and 48 reports.

(h) The Cr.PC 1973 itself has suffered amendments several times. Mention may be made of the following Amending Acts :-

i. Act 45 of 1978ii. Act 63 of 1980iii. Act 43 of 1983iv. Act 46 of 1984v. Act 43 of 1986vi. Act 32 of 1988vii. Act 10 of 1990viii. Act 43 of 1991

7. Commencement :

It came into force on the 1st April, 1974.

8. Extent of its operation :

(a) It extends to the whole of India except the State of Jammu and Kashmir

(b) Exceptions have also been made in favour of the State of Nagaland and Tribal areas of Assam. The whole of Cr.PC does not apply there. Only certain chapters, Chapters VIII, X and XI are applicable. The

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concerned State Government may, however, make applicable the other provisions of the Cr.PC.

(c) The State of Jammu and Kashmir is governed by a different, though substantially identical, code of Criminal Procedure.

9. Offence - how defined

(a) Cr.PC being the procedural part of the Criminal Law, it touches the people at may points. The Criminal law centers round the concept of crime. The term “crime” has not been defined in any Act but a definition of the expression “offence” has been given in Sec. 2(n) Cr.PC.

(b) It may be noted that “offence” is the genus of which crime is a species. In other words, all crimes are offences but all offences are not crimes.

(c) Simply speaking, offence means any act or omission made punishable by any law for the time being in force. It may be resolved into components as detailed below :-

(i) An act is a deed, that is, doing of something positive such as assaulting, killing, stealing. It should be something prohibited under the law.

(ii) Omission means a negative act, non-doing of something which the Law commands the person to do. When a Jailor omits to give food to the prisoner under his charge, he commits an illegal omission. If the officer-in-charge of a police station stands by and looks on when an accused is beaten up by a Head Constable in the thana Lock-up, he indulges in illegal omission, because he has a legal duty to prevent such a happening.

(iii) The act or omission must be something punishable under the Law. Punishment contemplated in one that should be inflicted by a competent Court of Law and it should be something authorised by the Law.

(iv) That law must have been in force when the alleged offence was committed. It should have been validly made by a competent Legislature.

(v) Law generally does not punish an act or omission unless it is accompanied by a guilty mind. There are, however, exceptions to this rule. Offences where guilty mind or mens rea is not an essential ingredient are known as strict liability offences. Illustrative case : Cundy Vs. Le Coq.

The accused had a licence, for sale of liquor in his premises. He sold liquor to a drunken person, which was against the Licensing Act, 1872. His defence was that he did not know that the customer was drunk. The Court accepted that fact but held that absence of his knowledge was immaterial. The offence was decided to be one of strict liability. The accused was found guilty.

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By way of illustration, it may be cited that in India, kidnapping from lawful guardianship, an offence u/s 363 IPC and sale of an adulterated article of food, an offence under the Prevention of Food Adulteration Act, do not require any mens rea (an evil intention or a knowledge of the wrongfulness of the act.).

10. Classification of offences :

Under the Cr.PC, offences have been classified on the basis of four different criteria. They are :-

(i) Cognizable and Non-cognizable.

(ii) Bailable and non-bailable.

(iii) Offence triable as summons case and offence triable as warrant case.

(iv) Offence exclusively triable by a Court of Sessions and offence not exclusively triable by a Court of Sessions, that ordinarily means an offence which may be tried by a Judicial Magistrate of competent jurisdiction.

Note : In this monograph, only the first two classifications (i) and (ii) shall be dealt with.

11. Cognizable and Non-cognizable offences :

(a) This division has been made with reference to police power.

(b) Cognizable offence means an offence for which a Police Officer may arrest without any warrant vide Sec. 2(c)

(c) Non-cognizable offence means an offence for which a police officer has not authority to arrest without warrant vide Sec. 2(e).

(d) Another formulation that flows out of Sessions 155 and 156 Cr.PC is that cognizable offence is where the police may investigate on their own without any order of any judicial authority but they can not do so when the offence is non-cognizable. In such a case, order of the competent Magistrate is necessary in order to enable the police to investigate.

(e) Examples - Murder, Kidnapping, Dacoity, etc. are cognizable offences while simple hurt, defamation, bigamy, etc. are non-cognizable offences.

(f) Column Not. 4 of the First Schedule to the Cr.PC will show whether a particular offence is cognizable or non-cognizable.

(g) The first schedule has two parts, namely (I) relating to the IPC and (II) concerning non-IPC offences

Note : IPC stands for Indian Penal Code, which contains the general law of crimes, so far as India is concerned.

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12. Bailable and Non-bailable offence

(a) Bailable offence is an offence where the accused, after arrest, is entitled to be released on bail as a matter or right.

(b) In non-bailable offence, bail is not a matter of right for the accused but it is a matter of discretion for the authority competent to grant bail, that is, the Court of the Police Officer.

(c) It should not be supposed that bail can not be granted in a non-bailable offence.

(d) Each application for bail made by an accused in a non-bailable offence has to be decided by the competent Court or the Police Authority, on its own merits, due regards being had to the relevant facts and circumstances of the case and bearing in mind the limitation imposed by law, if any, upon their powers.

(e) When an accused is granted bail, he is released from legal custody, upon his furnishing a bond, with or without surety, for his/her attendance at the time and place mentioned therein. The place is generally a specified Court.

(f) Ordinarily, the question of bail arises when a person has been arrested or detained or some kind of restraint has been imposed upon him.

(g) To find out, whether a particular IPC offence is bailable or non-bailable, you are to refer to Part-I of the 1st Schedule to the Cr.PC and check up the entry under the column No. 5. As for example, rioting, an offence punishable u/s 147 IPC is bailable, whereas theft, an offence punishable u/s 379 IPC is non-bailable.

(h) For any non-IPC offence, examine that particular Act which has created the offence. It that Act declares the offence to be bailable or non-bailable, then accept that position. It that Act is silent on that point, then decide the matter in terms of punishment prescribed for that offence and in the light of the principle enunciated in Part-II of the 1st schedule. If the offence is punishable with imprisonment for three years or more, it is non-bailable. Where the punishment is less than three years of with fine only, it is bailable.

13. Investigation :

(a) This term has been defined in Sec. 2(h) Cr.PC. The definition is, however, not exhaustive.

(b) Literally investigation means, following up step by step by observation, examination, and inquisition.

(c) Investigation implies ascertainment of facts, shifting of materials and search for relevant data.

Reference : AIR 1968, Orissa 20.

(d) Under the Cr.PC, Investigation may be conducted either by a Police Officer or by any person, other than a Magistrate.

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(e) The object of investigation is collection of evidence.

(f) Police Investigation generally consists of the following steps :

(i) Proceeding to the spot.(ii) Ascertainment of the facts and circumstance of the case.(iii) Discovery and arrest of the suspected offender.(iv) Collection of evidence by the processes indicated below or

any other lawful means :-

- Examination of various persons including the accused.- Reduction of the statements of such persons to writing

(discretionary and optional).- Seizure of things considered necessary.- Search of places

(v) Formation of opinion as to whether on the material collected, there is a case to place the accused for trial and if so, taking necessary steps for the same by filling of a charge-sheet u/s 173(2) Cr.PC.

Reference: (i) AIR 1955 SC 196 (ii) AIR 1959 SC 707

(g) Police investigation commences the moment a Police Officer takes steps for the same after having come to know of the commission of a cognizable offence.

Reference : (1972) 74 Punjab LR(D) 228

14. Inquiry :

(a) Inquiry, according to Sec. 2(g) Cr.PC, means every inquiry, other than a trial, conducted under the Code, by a Magistrate or a Court.

(b) It follows that Inquiry, as contemplated in the Cr.PC can be held either by a Magistrate or by a Court.

(c) What is done by a Police Officer under the Cr.PC can never be described as Inquiry.

(d) Inquiry is distinct and different from trial. In practice, trial begins when the Inquiry ends.

(e) The object of inquiry is determination of truth or falsehood of certain allegations with a view to taking further action according to law.

Reference : (i) AIR 1920 Patna 563(ii) AIR 1940 Calcutta 97

(f) Inquiry may be of different kinds, such as :-

(i) Judicial Inquiry(ii) Non-Judicial/Administrative Inquiry

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(iii) Preliminary Inquiry(iv) Local Inquiry(v) Inquiry into an offence(vi) Inquiry relating to a matter other than an offence.

(g) Inquiry may involve examination of witnesses and inspection of the locale.

15. Investigation and Inquiry - differences

The points of difference between them are brought our below in a tabular form:-

Investigation Inquiry

(i) By whom By a Police Officer or a person other than a Magistrate who is authorised by a Magistrate.

By a Court or by a Magistrate

(ii) Object Collection of evidence Ascertainment of truth

(iii) Nature Always non-judicial May be judicial or non-judicial

(iv) Matter It is always about or into an offence.

It may relate to an offence or any matter other than an offence.

(v) Initiation It commences when there are grounds for investigation, based on information or otherwise.

It may start on vague rumours with shadowy beginning vide AIR 1968, Madras 117

(vi) Sequence In cognizable offence, police investigation is a normal preliminary to the accused being put up for trial.

In a warrant case instituted other than on Police report, the proceeding upto the framing of the charge is inquiry. Here, Trial follows inquiry

16. Trial

(a) Cr.PC has not defined “trial”.

(b) Judiciary, through its process of interpretation, has endeavoured to supply that omission. It is :-

“ A trial is a judicial proceeding which ends in conviction or acquittal” vide AIR 1940, Calcutta 97, AIR 1929, Patna 644.

(c) A trial is a proceeding different from inquiry vide 1987 Cr.LJ 55.

(d) When inquiry stops, trial may begin vide 1957 Cr.LJ 937.

(e) Trial means whole of the proceedings including sentence vide 24 Cr.LJ 886.

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(f) The right to reasonably speedy trial is a fundamental right conferred by Article 21 of the Constitution of India vide AIR 1979 SC 1177.

(g) The Cr.PC in Sections 167, 209 and 309 has emphasised the importance of expeditious disposal of cases including investigations and trials vide AIR 1979 SC 1518.

17. Court - What it is ?

(a) It has not been defined in the Cr.PC, although the classes of Criminal Courts have been enumerated in Sec. 6 Cr.PC.

(b) In order to constitute a court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgement which has finality and authoritativeness which are the essential tests of a judicial pronouncement.

Reference : 1955(2) S.C.R.955.

(c) For the sake of brevity, the Criminal Procedure Code uses “Court” and “Magistrate” generally, it not always, as convertible terms.Reference : AIR 1953 Madras 953.

(d) A Magistrate is not a court unless he is acting in a judicial capacity vide ILR 36 Calcutta 433.

18. Judicial - meaning of

The work “Judicial” has two meanings .

It may refer to the discharge of duties exercised by a Judge or by Justices in Court or to administrative duties which need to be performed in Court but in respect of which it is necessary to bear a Judicial mind - that is a mind to determine what is fair and just in respect of matters under consideration.

(1892) 1 QB 431Quoted in AIR 1980 Kerala 18 Full Bench

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POLICE INVESTIGATION - AN OUTLINE

I. BASICALLY, POLICE IS A LAW-ENFORCEMENT AGENCY

Its main functions are :-

1) Prevention and Detection of Crime

2) Bringing offenders to Justice

3) Maintenance of Law and Order

4) Regulation of Traffic

II. INVESTIGATION

Its ordinary meaning :-

A systematic, minute and thorough attempt to learn the facts about something, complex or hidden; it is often formal and official.

(Vide Hamlyn’s Encyclopedic World Dictionary)

III. INVESTIGATION - LEGAL NOTTION

b) Investigation means :-

(i) ascertainment of facts(ii) sifting of materials(iii) search for relevant data

[Vide state of Orissa Vs Pareswar reported in AIR 1968 Orissa 20]

c) It is defined in Sec. 2(h) Cr. P.C. The definition is, however, not exhaustive.

IV. THE OBJECT OF INVESTIGATION :

It is collection of evidence.

V. STAGES OF INVESTIGATION :-

(1) Proceeding to the spot

(2) Ascertainment of the facts and circumstances of the case

(3) Discovery and arrest of the suspected offender

(4) Collection of evidence relating to the Commission of Offence

(5) Formation of opinion as to whether it is a fit case for the accused to be sent up for trial and if so, taking steps for filing charge-sheet.

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VI. COLLECTION OF EVIDENCE - DIFFERENT MEANS

1) Examination of witnesses

2) Search of person and place

3) Seizure of things and documents

4) Scientific aids to investigation and reference to Experts for their opinions.

5) T.I. Parade

6) Post-mortem Report/Injury Report

7) Confession and admission

8) Interrogation of the accused.

VII. INVESTIGATION AND INQUIRY - POINTS OF DIFFERENCE

Points Investigation Inquiry(1) By whom Police officer or a Magistrate

person other than or CourtMagistrate, duly (Magistrateauthorised by may beMagistrate Judicial (here judicial) or

Executive

(2) Purpose Collection of AscertainmentEvidence of truth or

falsity of thealleged facts

(3) Character Can never be May be judicialjudicial or non-

judicial

(4) Commencement It starts when there May start withare grounds for shadowy investigating a beginnings andCrime vague rumours

(5) Context It relates to an May be in offence and is respect of anheld in the offence or acontext of matter othersuspected or an offencealleged commissionof an offence.

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VIII. INVESTIGATION - A NORMAL PRELIMINARY IN COGNIZABLE OFFENCE

a) In criminal cases involving cognizable offences, police investigation is a normal preliminary to the accused being put up for trial.

b) Investigation usually starts as soon as information relating to the commission of a cognizable offence is given to the Police Station.

c) Receipt and recording of an FIR is, however, not a condition precedent to the launching of police investigation.

d) Police can, in a case involving a cognizable offence, start investigation, without any order from the Magistrate, on informant or otherwise (Vide Sec. 157 (1) Cr. P.C.

IX. FIR - ITS CHARACTERISTICS

(i) It must disclose the commission of a cognizable offence.

(ii) It should be given to the o/c of a police station.

(iii) It should be earliest in point of time.

Note : If all the above three conditions are satisfied, the information thus lodged with the police and recorded u/s 154 Cr. P.C. may be described and treated as FIR.

X. FIR - OTHER FEATURES :

(a) It may be in writing

(b) If given orally, it shall be reduced to writing by the police officer.

(c) It should be signed by the person giving it.

(d) A copy of it should be delivered to the information free of charge.

(e) It may be made by any person, whether or not he has the first hand knowledge about the crime reported.

(f) Delay, if any, in making the FIR should be explained in the FIR itself.

Strictly speaking, the Telegrams and telephonic messages can not be treated as FIR, because they are not given in writing duly signed by the informant nor they are reduced to writing by the police and read over to the informant.

Moreover, there is hardly any guarantee as to their genuineness/authenticity.

XI. REFUSAL BY INFORMANT TO SIGN THE FIR

It is punishable u/s 180 IPC

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XII. THE FIR - ITS BASIC OBJECTS :

(a) To set the criminal law in motion through the agency of the police.

(b) To furnish to the police early information of an alleged criminal activity of cognizable nature.

XIII. VALUE OF THE FIR :-

(a) It is valuable because it gives the earliest version of the occurrence.

(b) It is not a substantive piece of evidence.

(c) It can be used for the purpose of corroboration u/s 157 Indian Evidence Act.

(d) It can corroborate the maker if he is called as a witness.

Note : Normally the FIR is recorded before the starting of investigation. Hence, the FIR does not come within the purview of Section 162 Cr. P.C.

(e) It may be used for contradiction u/s 145 Cr. P.C. against the author thereof.

(f) Some other uses of the FIR.

(i) as a conduct u/s 8 I.E. Act, if lodged by the accused.

(ii) as an admission u/s 21 I.E. Act, if lodged by the accused.

(iii) as a dying declaration, if lodged by the deceased whose death is in issue.

(iv) as an entry by a public servant in the discharge of his official duties u/s 35 I.E. Act.

XIV. FIR - DELAY IN LODGING

(a) Delay, in lodging the FIR, if not sufficiently explained, creates suspicion.

(b) Delay, without any explanation may be fatal to the prosecution.

XV. REFUSAL BY THE POLICE TO RECORD FIR :

Remedy is provided by Sec. 154 (3) Cr. P.C. The person aggrieved can send to the Superintendent of Police the substance of the information by post.

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XVI. WHEN THE MAGISTRATE MAY DIRECT THE POLICE TO MAKE INVESTIGATION

(1) u/s 156 (3) Cr. P.C.(2) u/s 159 Cr. P.C.(3) u/s 202 (1) Cr. P.C.(4) u/s 155 (2) Cr. P.C.

XVII CUSTODY

CUSTODY : It means physical detention.

Remand : “To send back”

Custody :-

(1) Police custody(2) Judicial custody.

Safe custody : One who is held under the authority of law for his or her safety (custody of a kidnapped girl)

XVIII. REMAND -- RELEVANT SECTIONS

(1) During investigation - Sec. 167 Cr. P.C.

(2) After cognizance and - Sec. 309 Cr. P.C.pending and duringtrial.

(3) By Executive Magistrate - Sub-section 2 Aof Sec 167 Cr. P.C.

Conditions : When an Executive Magistrate may remand

(1) Judicial Magistrate is not available at the Station.

(2) Powers of Judicial Magistrate or Metropolitan Magistrate have been conferred Sec 13 / Sec. 18 Cr. P.C., upon that Executive Magistrate.

(3) Accused forwarded by the O/C or I. O not below the rank of S.I., along with a copy of the case diary.

Remand to Police Custody/Jail Custody

Maximum period of detention during police investigation :-

(1) 90 days : When the offence is punishable with Death/ Imprisonment for life/Imprisonmentfor ten years or above.

(2) 60 days : any other offence

This period should be computed from the date of remand of the accused and not from the date of his arrest.

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XIX . SEARCH AND SEIZURE (References only)

Search Procedure :

(1) Section - 47 Cr. P.C.(2) Section - 100 Cr. P.C.(3) Section - 165 Cr. P.C.

Search of a Person :

(1) Section - 51 Cr. P.C.(2) Section - 52 Cr. P.C.

Power of Police to Seize without Warrant :

Section - 102 Cr. P.C.

XX SEARCH WARRANTS (References only)

1) SECTION - 93 Cr. P.C. GENERAL SEARCH

2) SECTION - 94 Cr. P.C. STOLEN PROPERTY FORGED DOCUMENTS

3) SECTION - 95 Cr. P.C. FORFEITED PUBLICATIONS

4) WRONGFULLY CONFINED PERSONS - Section 97 Cr. P.C.

XXI. SEARCH WITHOUT WARRANTS (References only)

1) MAGISTRATE- SECTION 103 Cr. P.C.

2) POLICE OFFICER (O/C)- SEC. 165 Cr. P.C.- SEC. 166 Cr. P.C.- SEC. 153 Cr. P.C.

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THE INDIAN EVIDENCE ACT, 1872 - AN INTRODUCTION

1. Extent of Operation

It extends to the whole of India except the State of Jammu and Kashmir.

2. Date of Commencement

It came into force on 1st September, 1872.

3. Applicability

It applies to all judicial proceedings in or before a court.

4. Court : What it includes

(a) The “Court” includes all Judges and Magistrates.(b) It also includes all persons, other than Arbitrators, legally authorised

to take evidence.

5. Judicial Proceeding : What it means

(a) It is not defined in the I.E. Act.(b) Section 2(i) Cr.PC has given a definition of it.(c) It includes any proceeding in the course of which evidence is or may

be legally taken on oath.

6. I.E. Act where not applicable

The provisions of I.E. Act are not applicable to :

(a) Departmental Disciplinary Proceedings

Note : Rules of Natural Justice must, however, be observed in departmental proceedings, Fundamental Principles underlying certain provisions of the Indian Evidence Act, which are based on fair play, equity, good conscience and Justice, should however be followed in departmental inquiries. Ordinary rules of proof, not the strict and sophisticated rules of evidence, are however, applicable.

AIR 1963 S.C. 375AIR 1969 S.C. 983AIR 1976 S.C. 1080

(b) Domestic Tribunals.(c) Proceedings before Arbitrators.(d) Affidavits presented to court or an officer.

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7. Nature of the I.E. Act

(a) The I.E. Act is basically a branch of “Adjective” Law. In its essence, it is procedural by nature.

(b) It deals with the establishment of the facts in issue by production of evidence.

(c) The object of every judicial proceeding is to determine either a right (as in a Civil case) or a liability (as in a criminal trial).

(d) Evidence Act tells us :

i) What are facts-in-issue.ii) What facts are relevant.iii) What facts are admissible.iv) What facts may be proved.v) What facts may not be proved.vi) What kind of evidence may be given of a fact which is

to be proved.vii) Who is to produce such evidence.viii) How it is to be given.

8. Basic rules of Evidence.

i) Best evidence must be produced.ii) Hearsay evidence is not admissible.iii) Evidence may be given of facts in issue and relevant facts ( Sec.5).iv) All facts, except the contents of documents, may be proved by oral

evidence (Sec. 59).v) Facts judicially noticeable need not be proved (Sec. 56).vi) Facts admitted need not be proved (Sec. 58).vii) Oral evidence must be direct (Sec. 60).

9. Evidence - What it is ?

a) It is the usual means of proving or disproving a fact under trial or inquiry.

b) It does not include arguments.c) It tends to convince the court of the truth or otherwise of the matter

Note :The definition of evidence as given in Section 3 of the Indian Evidence Act is a narrow one. It does not include real evidence.

A Court is to consider the matters before it while deciding whether or not a particular fact has been proved.

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10. “Matters before Court” :-

They include evidence and also certain non-evidence material, such as,i) Material objects.ii) The demeanour of witnessesiii) Local inspection held by a Judge/Magistrate.iv) Answers given by the accused in course of examination u/s 313

Cr.PC.v) A confession made by a prisoner u/s 30.

11. Evidence and Proof :

a) Evidence means all the legal means exclusive of mere arguments, which tend to prove or disprove any fact, the truth of which is submitted for judicial determination.

b) It is the instrument by which the court is convinced of the truth or otherwise of the matter under inquiry/trial.

c) Proof is the result of appreciation of evidence by the Court.

d) Proof signifies the belief of the Court in the existence of a fact - a belief arrived at upon consideration of the matters before it including the evidence.

e) Evidence is produced before the court in order to prove the facts in issue. Hence, evidence is the means whereas proof is the end. Proof is the effect of evidence.

12. Facts in issue :

Facts in issue mean the matters in dispute. They are the facts which a party to a litigation must prove in order to succeed in his claim or defence. They are to be found in pleadings or charge, as the case may be. They are sometimes called the principal facts.

Facts in Issue - Example :

“A” is charged with having murdered “B”. “A” pleads not guilty.

The facts in issue are :-i) that “B” died.ii) that it was a homicidal death.iii) that “A” caused B’s deathiv) that “A” intended to kill “B” (Mens rea)

“X” was an eye-witness to the occurrence.The testimony of “X” was direct evidence.

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13. Disproved and not proved

The Evidence Act has drawn a clear distinction between these two expressions. The definitions given in Section 3 describe the degree of certainty to be arrived at before a fact may be said to be disproved or not proved.

A fact is said to be “not proved” when it is neither proved not disproved. It is, therefore, neither positive nor negative. On the other hand, a fact is said to be “disproved” when its non-existence is either believed or accepted by the court as highly probable. “Not proved” implies that the material on record falls short, of the requisite proof. “ Disproved”, on the other hand, means that the material is sufficient to establish the non-existence of the fact asserted.

14. Proved

The Evidence Act while defining “proved” provides for two conditions of mind. First that in which a man and (it includes a woman) feels absolutely certain of a fact in other words “he believes it to exist”. Secondly, in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence.

AIR 1990 SC 1459.

15. Evidence - Classification

a) Oralb) Documentaryc) Real

16. i) Oral Evidence is evidence from persons, namely, witnesses.ii) Documentary evidence is evidence from documents.iii) Real evidence is evidence from things other than documents.

17. Oral Evidence - Statements made by the witnesses in Court

18. Documentary Evidence -

Documents produced for inspection of the Court - such as :

a) a letterb) a sale-deedc) a deed of agreementd) a seizure memoe) an inquest report

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19. Real evidence - material objects other than documents, produced for inspection by the court

Examples

a) Dagger,b) Revolver,c) Blood stained clothes,d) A torn garment

20. All legal Evidence is either Direct or Circumstantial

Direct Evidence : When the principal fact is attested directly by witnesses, things or documents.

To all other forms of evidence, the term circumstantial evidence is applied.

21. Circumstantial Evidence :

Ordinarily means evidence of a fact form which some other fact is inferred.

In circumstantial evidence, facts in issue are indirectly inferred rather than directly perceived.

Examples :

Motive, preparation, conduct, opportunity, position of the parties etc.

22. Circumstantial Evidence : ( Example)

“A” was charged with the murder of “B”

“PW1” proved than “A” had enmity with “B”

“PW2” testified that “B” was last seen in the company of “A”

“PW3” deposed than “B” was wearing ornaments (a ring and chain)

“PW4” stated that “A” was sharpening a knife.

“PW5” (Autopsy Surgeon) opined that the injury sustained by “B” might have been caused by that knife.

“PW6” (a Jeweller) gave out that “A” sold the above ornaments to him on the day next to murder.

Result: “A” was found guilty of the charge. The case hinged entirely on circumstantial evidence.

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23. Circumstantial Evidence - three tests to be satisfied :

i) the circumstances must be cogently and firmly established.ii) those circumstances should be of a definite tendency unerringly

pointing towards guilt of the accused.iii) the circumstances taken collectively should form a chain so complete

that there is not escape from the conclusion that within all human probability the crime was committed by the accused and none else.

References : AIR 1960 S.C. 500 AIR 1976 S.C. 917 AIR 1977 S.C. 1116

24. Document :

Reference : Section 29 IPC Section 3 I.E. Act. Section 3 (18) General clauses Act.

Document means :

a) any matterb) expressed or described upon any substance by letters, figures or

marks intended to be used or may be used for recording that matter.

Documents : (Examples) :

i) a writingii) a mapiii) a planiv) a summonsv) a noticevi) an ordervii) a sale-deedviii) a receiptix) a blue-printx) an X-ray platexi) a book of accountxii) a caricaturexiii) an inscription on a stonexiv) a tape

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25. Contents of a Document

How to prove ? (Section 61)

by primary evidence which the Law requires to be given. It means the document itself produced for inspection of the Court.

by secondary evidence which the Law permits to be given in absence of primary evidence after due explanation.

26. Documentary Evidence :

Chapter - V

Proof of contents : Section 61

Primary evidence : Section/62/64

Secondary evidence : Section 63/65

Proof of writing etc. : Section 67

Public Documents : Section 74

Certified copies of : Section 76Public Documents

27. Secondary Evidence (Section 63)

a) A certified copyb) Copy made from the original by mechanical processc) Copy made from or compared with the originald) Counter-parts of documentse) Oral accounts of the contents.

28. Public Documents :

a) Documents forming the acts or records of the acts.

i) of sovereign authorityii) of official bodies and tribunalsiii) of public officers - legislative judicial or executive

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b) Public Records kept in any state of private documents.

Public Documents : (Examples) -

i) a charge-sheet u/s 173 Cr.PC.ii) Birth and Death Registeriii) F.I.R.iv) Judgement of a Courtv) Order Sheetvi) An Income-Tax returnvii) Permit under M.V. Act.viii) Ballot paperix) Compromise petition

29. Expert Evidence

Reference :

a) Section 45 and 46 of Indian Evidence Act.b) Section 291, 291 and 293 Cr.PC.

Expert - Who is ?

a) He is a person specially skilled in that subject.b) Expert is one who possesses superior knowledge and practical

experience.

Note : It may not depend upon any degree.

An Excise Inspector who has served as such for 21 years and has tested may many samples of liquor may be treated as an Expert (AIR 1974 Supreme Court 639).

Generally speaking a witness is to testify as to facts falling within his personal knowledge vide Section 60 Evidence Act.

30. Expert - Examples (Illustrative and not exhaustive)i) Medical Expertii) Finger Print Expertiii) Foot Print Expertiv) Handwriting Expertv) Arms Expertvi) Explosives Expertvii) Public Analyst

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viii) Chemical Examinerix) Serologistx) Ballistics Expert ( Science of protectiles in motion)xi) Officers of MINTxii) Motor Vehicle Expertxiii) Physicistxiv) Entomologistxv) Toxicologistxvi) Photographer

31. Relevancy and Admissibilitya) These two expressions are not identical.b) Relevancy is determined by logic whereas admissibility is founded

upon Law.c) When we say that a particular evidence is admissible, we prosuppose

that it is also relevant.d) Roughly speaking, what is relevant is generally admissible.e) Strictly, all relevant facts are, however, not admissible.f) Relevant facts are those which have some sort of connection or

relationship with the Facts-in-issue.(g) In an inquiry or trial, the basic idea is to establish facts-in-issue but

when direct evidence to prove fact-in-issue is not available, then evidence is or may be given of relevant facts, with a view to substantiating the facts-in-issue.

(h) In order to find out whether or not a particular fact is relevant, you are to check up whether or not it falls within the purview of any of the sections 6 to 55 of the Indian Evidence Act.

(i) If it comes within the ambit of any such section, then it is relevant.(j) Then the question to be addressed is :

- Has its reception been expressly barred under any of the provisions of the Indian Evidence Act, as for example, Sections 122, 123, 124 and 126 etc. (Privileged Communications).

(k) If it is barred under the provisions of Indian Evidence Act, then it becomes inadmissible, notwithstanding its relevancy.

(l) There is certain facts which may not be relevant but the Indian Evidence Act permits them to be received in Evidence, as for example - questions to test the veracity of a witness and to discover who he is and what is his position in life vide Section 146 Indian Evidence Act.

(m) Admissibility, therefore, signifies that a particular fact is relevant u/s 6 to 55 Indian Evidence Act and also that its reception in evidence is not prohibited.

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(n) Admissibility should be determined with reference to the provisions of the Indian Evidence Act.

32. Relevancy -

Sections 6 to 55 Indian Evidence Act - a broad division

(i) Connected facts (Sections 6 - 16)(ii) Statements

(a) Sections 17-31(b) Sections 32-33(c) Sections 34-39

(iii) Judgements (Sections 40-49)(iv) Opinions of third persons (Sections 45-51)(v) Character of Persons (Sections 52-55)

33. Admissibility

A fact, in order to be admissible, should not only be relevant u/s 6-55 Indian Evidence Act, but must not also be prohibited under the Indian Evidence Act, as for example :

(i) Contents of documents can not generally be proved by oral evidence (S.59)

(ii) Oral evidence must be direct (S. 60) Hearsay is not admissible.(iii) Contents of documents may be proved either by primary or secondary

evidence and not otherwise (S.61)(iv) Documents must be proved by primary evidence except in cases

falling under Section 65(vide S.64)(v) Contents of public documents are proved by production of certified

copies (S.77)(vi) Proof of other official documents (S. 78)(vii) Presumptions (S.79-90 and S.114)(viii) Exclusion of oral by documentary evidence (S.91-100)(ix) Estoppel (S.115-117)(x) Competency and compellability (S.118-121)(xi) Privileged communications (S.122-129, 132 and 133 etc.)(xii) Lending questions can not be asked during the Examination-in-chief

(S.142)(xiii) Questions not to be asked without reasonable grounds (S.149)(xiv) Indecent and scandalous questions may be forbidden (S.151)(xv) Question intended to insult of annoy may be prohibited (S.152)(xvi) Exclusion of evidence to contradict answers(S.152)(xvii) Question that may be asked to a Hostile witness by the party which

called him (S.154)

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34. Standard of Proof

While Civil case may be proved by mere preponderance of evidence, in criminal case prosecution must prove the charge beyond reasonable doubt (AIR 1990, SC 209)

Note : Only proof beyond reasonable doubt and not conclusive proof is required for conviction (Ref. AIR 1987, SC 482)

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Reference and Bibliography

(1) Law of Evidence by Sudipto Sarkar and V.R. Manothar,Fourteenth Edition, 1993 in two volumes

Publishers : Wadhwa and Company, Agra, Nagpur

(2) Law of Evidence by S.P. Sen Gupta,

Publishers : Kamal Law House, Calcutta

(3) Law of Evidence by A.N. Saha

Publishers : Eastern Law House, Calcutta

(4) Principles and Digest of the Law of EvidenceOriginal Author, Chief Justice M. Monir

Revised by : Justice Deoki Nandan

Publishers : The University Book Agency, Allahabad

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CODE OF CIVIL PROCEDURE - AN INTRODUCTION

1. C.P.C. - What it is?

(a) It is a piece of legislation.

(b) It lays down and consolidates the law relating to the procedure of the Civil Courts.

(c) It deals with the process of litigation of a civil nature.

2. C.P.C. - its scheme

(a) It has two parts.

(b) The first part consists of 158 sections. It may be called body of the Code.

(c) The second part consists of Rules. The Rules are arranged under 51 “Orders” and contained in the Schedule I.

(d) Besides the Sections and the Rules, there are eight appendices giving out the specimen forms.

3. Body and Rules - Distinction

(a) The Body contains fundamental principles and Rules deal with details.

(b) Sections comprising the body are expressed in more general terms while the Rules are more particular provisions.

(c) The body generally creates jurisdiction while the Rules indicate how the jurisdiction should be exercised.

(d) The body is unalterable except by legislative amendment. The Rules may be changed by the High Courts and as such, they are more flexible.

4. Suit - what it is?

It is a civil proceeding instituted by the presentation of a plaint.

5. Plaint - what it is ?

It is the basic document of the plaintiff which gives rise to a suit.

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6. Plaint - what it should contain

(a) Please see Order 7 Rule 1 CPC for details.

(b) In short, all facts which would entitle the plaintiff to get a decree and the reliefs claimed by him should be stated in the plaint.

7. Plaintiff - who he is ?

The party who commences a law suit is known as the Plaintiff.

8. Defendant - who he is?

The party against whom a suit is filed is called the defendant.

9. Written Statement

The basic document which the defendant files in Court in answer to the plaint is known as “written statement”. It contains statements of defence.

10. Pleadings

The plaint and the written statement constitute the pleadings of the parties.

11. Pleadings - what they should contain

Material facts on which the party pleading relies and not evidence by which those facts may be proved.

12. Basic Rules of Pleadings

(i) Every pleading should state facts and not law.(ii) It must state material facts and material facts only.(iii) It must state facts and not evidence by which they are to be proved.(iv) It must state facts in concise form.

13. Pleading of Law

A party can not plead law but he may by his pleading raise any point of law.

14. Pleadings - their object

The whole object of pleadings is to bring the parties to issues.

15. Pleadings - their implications

(a) Parties cannot be allowed to deviate from their pleadings.(b) Proof may be given in support of the facts pleaded.

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(c) Evidence cannot be given to prove a plea not properly raised in the pleadings.

(d) The decision in a case cannot be based on grounds outside the pleadings of the parties.

(e) If an allegation of fact made by the plaintiff is not specifically denied by the defendant, it should be deemed to have been admitted.

(f) Pleadings may be amended with the leave of the Court.(g) Inconsistent pleadings are not prohibited but are liable to be viewed

with suspicion.

16. Elements of a Judicial Procedure

(i) Summons(ii) Pleadings(iii) Proof(iv) Judgement(v) Execution.

NOTE : PROOF IS THE EFFECT OF EVIDENCE

17. Essentials of a Suit

(i) opposing parties(ii) a subject in dispute(iii) a cause of action(iv) a demand for relief

18. Cause of Action

(a) “Cause of Action” means the bundle of essential facts which it is necessary for the plaintiff to allege and prove in order to succeed.

(b) “Cause of Action” includes not only the material facts which constitute the right claimed by the plaintiff but also the facts which show infringement, actual or threatened, by the defendant, of such right providing the immediate occasion for the action.

19. Stages of a suit from the beginning till the end

(i) Presentation of the plaint.(ii) Preliminary scrutiny by the Court.(iii) Registration/Return/Rejection.

If found in order, the plaint may be registered. Otherwise the plaint may be returned under order 7 Rule 10 if the Court does not have jurisdiction to try it or the plaint may be rejected for any of the reasons specified in Order 7 Rule 11 CPC or for any other recognised reason. The plaint may also be returned for the time being for the purpose of amendment.

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(iv) Summons to the defendant.(v) Appearance of the defendant.(vi) Filing of the written statement by the defendant.(vii) Attendance of the parties in the Court.(viii) Examination of the parties by the Court for determination of the

matters in dispute.(ix) Interrogatories inspection, production of documents admission, etc.

(all pre-trial proceedings).(x) Settlement of issues.(xi) Summoning and attendance of witnesses.(xii) Adjournments, if any.(xiii) Hearing of the suit including examination of witnesses, reception of

documentary/material evidence, and hearing of arguments.(xiv) Delivery of the Judgement.(xv) Drawl of the decree.(xvi) Appeal, if any.(xvii) Execution.

20. Return of the plaint and rejection of the plaint - points of distinction

(a) ((Return of the plaint is done u/s 7 Rule 10, whereas the rejection of the plaint is made u/s 7 Rule 11.

(b) Want of jurisdiction is the only ground for return of the plaint. Non-disclosure of cause of action, non-payment of deficit court fee, failure to rectify under-valuation of the suit and bar imposed by Law are the major grounds for rejection of the plaint.

(c) A plaint may be returned at any stage. Rejection, though may be resorted to at any stage, is generally made during the initial stage.

(d) In case of return of the plaint, the same plaint may be presented to the proper Court. If the plaint is rejected, it cannot be re-filed. In such event, a fresh plaint is required to be filed.

(e) When a plaint is returned, the Court fees it bears may be used. The Court fees affixed to the rejected plaint cannot be used again.

(f) Rejection of a plaint is deemed to be a decree. Return of plaint is, however, an order.

(g) When a plaint is returned after the appearance of the defendant, the Court has the power to fix a date for appearance of the parties in the Court where the plaint is proposed to be filed, in order to obviate the necessity of summoning the defendant again. In case of rejection of the plaint, the Court has neither any competence nor any occasion to do so.

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(h) An order for return of plaint is appealable save and except where the procedure specified in Order 7 Rule 10A has been followed. There is not second appeal. Rejection of a plaint being a decree is always appealable and what is more, second appeal also lies.

21. Decree - its chief element

(i) Formal expression of adjudication.(ii) Adjudication of the rights of the parties with regard to all or any of

the matters in controversy.(iii) Conclusive determination of rights.(iv) Must be in a suit.

22. Order - its elements

(a) it is a formal expression of a decision.(b) it is given by a Civil Court.(c) it is other than a decree.

23. Decree and Order - distinction

Decree and Order both are formal expressions of decisions given by a Civil Court. The essence of distinction between them lies in the nature of the decision.

The points of difference are given below in a tabular form:-

Decree Order

(a) Every decree is appealable except a decree on consent vide Section 96.

Orders are generally not appealable except those specified in Section 104(1)

(b) Second appeal lies on certain grounds vide Section 100.

There is not second appeal

(c) Decree adjudicates and conclusively determines the rights of the parties.

May or may not finally determine the rights of the parties.

(d) Decree may be preliminary or final. Order cannot be preliminary..

(e) Must be in a suit. Need not necessarily be in a suit.

(f) One decree is passed in a suit. Several orders may be passed suit.

24. Decree - What it should contain (vide Order 20 Rule 6 CPC)

(a) Number of the suit.(b) Description of the parties.

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(c) Particulars of the claims.(d) Reliefs granted or other determination of the suit.(e) Costs - by whom and to whom payable.

25. Judgement - what it should contain (vide Order 20 Rule 4)

(a) Concise statements of the cases of the contending parties.(b) Points for determination.(c) Decisions thereon.(d) Reasons for such decisions.(e) Reliefs granted, if any.

26. Judgement and Decree - their co-relation

(a) Decree follows the judgement.(b) Decree should accord with the judgement.(c) Decree reflects the operative part of the Judgement.(d) The date of the decree is the date on which the judgement was

pronounced.(e) Certified copy of the decree has to be filed for execution.

27. Preliminary decree and final decree - the points of difference

Preliminary Decree Final Decree

(a) Conclusively determines the rights of the parties with regard to some matters in controversy but does not completely dispose of the suit.

Conclusively determines rights of the parties with regard to the remaining matters in controversy and completely disposes of the suit.

(b) Further proceedings have to be taken for complete disposal of the suit.

No further proceeding is required to be taken.

(c) It is a stage of working out the rights of the parties in the suit.

It finalises the process of litigation in the form of suit.

(d) Final decree is based on preliminary decree.

If the preliminary decree is set aside in appeal, the final decree is superseded.

28. Examples of Preliminary Decree

A Decree for partition is passed in the preliminary form and thereafter, it is made final.

(a) ((Preliminary decree determines the shares of the parties in the suit property.

(b) Final decree makes division of the suit property and declares the allotment in favour of each co-sharer.

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29. Interlocutory Order - What it is?

(a) “Interlocutory” means “provisional”, interim, ‘temporary’, not final.

(b) Interlocutory order is one that is made during the pendency of the suit which does not finally dispose of any dispute or claim in the suit itself.

(c) Examples -(i) order appointing a receiver(ii) order granting a temporary injunction(iii) order issuing a commission for examination of witnesses(iv) order directing sale of perishable goods(v) orders relating to interrogatories, inspection, etc

30. Non-joinder and Mis-joinder of parties

(a) “Non-joinder of parties” - it means omission to join some person as a party to a suit, either as plaintiff or as defendant.

(b) “Mis-joinder of parties” - it means improper joining together of parties to a suit as plaintiffs or defendants.

(c) Objections as to non-joinder or mis-joinder of parties should be taken at the earliest opportunity (Order 2 Rule 13).

(d) A mis-joinder or non-joinder of parties is not fatal to the suit. The Court may deal with the rights of the parties actually before it (vide Order 1 Rule 9).

(e) The suit is, however, liable to be dismissed for non-joinder of a necessary party (vide the proviso to Rule 9 of Order 1).

(f) In case of mis-joinder of parties, the name of the plaintiff or the defendant improperly joined may be struck out under Order 1 Rule 10(2).

(g) In case of non-joinder of parties, a person may be added as a party provided that he ought to have been joined but actually not joined and without whose presence, the questions in suit cannot be completely decided Vide Order 1 Rule 10(2).

31. Necessary and Proper Parties

(a) Necessary parties are those parties whose presence is essential and in whose absence, no effective decree can be passed. They are parties who ought to have been joined within the meaning of Order 1 Rule 10(2).

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(b) Proper parties are those parties whose presence is a matter of convenience to enable the Court to adjudicate more effectively and completely.

(c) Examples -

(i) In a suit for partition, all the co-owners are necessary parties.

(ii) In a suit against the Railway, Union of India is a necessary party.

(iii) The sub-tenant is a proper party and not a necessary party in a suit for eviction of the tenant on the ground of sub-letting.

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LAW OF CONTRACT – AN OUTLINE

1. What is Law Relating to Contract?

Prior to the enactment of Indian Contract Act, 1872 the personal law of the parties was applied in all matters relating to contracts viz in case of Hindus the Hindu law and in case of Mohamedans, the Mohamedan law was applied and wherever the parties belonged to different religions, it was the law of the defendant which was made applicable.

The Indian Contract Act, however, was enacted in the year 1872 and it came into operation on 1st day of September, 1872.

The Indian Contract Act does not affect provisions of any other Statute, Act or Regulation nor any usage or custom of trade unless such usages or customs are inconsistent with the provisions of the Act.

2. What is Contract

A contract under the American law has been defined as a promise or a set of promises for the breach of which law gives a ‘remedy’ or the performance of which the law in some way recognises as a ‘duty’.

Section 2 (h) of the Indian Contract Act defines “Contract” as follows:-

“AN AGREEMENT ENFORCEABLE BY LAW IS A CONTRACT”

3. What is an Agreement

For understanding the Contract we must know what is an “Agreement”. Section 2 (e) defines “Agreement” as under:-

“Every promise and every set of promises, forming the consideration for eachother is an agreement.”

A promise on the other hand has been defined as an “Accepted Proposal” under section 2 (b).

The process of Contract therefore, can be simplified as under:-

(i) There should be an offer or proposal from one person signifying his willingness to do or to abstain from doing something.

(ii) The proposal must be communicated

(iii) After communication it must be accepted by the person to whom the proposal was made.

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(iv) As soon as a proposal is accepted it becomes a promise and this promise is nothing but an “Agreement”.

(v) Any agreement which is enforceable by law is a “Contract”.

4. Essentials of Valid Proposal

(i) “An offer must be intended to create and be capable of creating legal relationship” is a settled principle under the English law. Although there is no such express provision under the Indian Contract Act but the contracts are not and must not be the sport of an ideal hour, mere matters of pleasantary and badinage, never intended by the parties to have any serious effect whatsoever as stated by “Lord Stowell” in Darlymple Vs. Darlymple (1811) 161 ER 665.

(ii) Mere invitation does not constitute a binding promise. An invitation to traders to make tenders, display of goods for sale in a shop, holding of an auction are all an invitation to make a ‘proposal’ and not a proposal by themselves.

Examples:

(a) An invitation to dinner

(b) An agreement to take a walk together

© An invitation of a company to the public to subscribe for its shares.

(iii) An offer must be made for the purpose of being agreed to.

(iv) An offer may be made to a particular person or to the people in general but no contract can come into existence until it has been accepted by an ascertained person.

5. Essentials of a Valid Acceptance (Section 7)

In order to convert a proposal into a promise the acceptance must be:-

(i) Absolute and unqualified;(ii) It should be made in the prescribed manner only and if the manner has not been

prescribed it may be made in some usual and reasonable manner.

“The Contract is only complete when the acceptance is received by the proposer and the Contract is made at the place, where the acceptance is received”

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6. Revocation of proposal/acceptance

(i) A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer but not afterwards.

(ii) Acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor but not afterwards.

Thus a proposal can be revoked before it is accepted by the acceptor and acceptance can be revoked before it becomes known to the proposer.

7. Consideration

What Does It Mean?

The conception of “Consideration” in English Law is some “Detriment” to the promisee (in that he may suffer something or give something of value) or some ‘benefit’ to the promisor (in that he receives something of value).

The consideration is necessary for formation of every Contract.

A promise made without any consideration is not a contract.

Section 2 (d) defines consideration as under:-

“When at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing something, such act or abstinence or promise is called a consideration for the promise:

Certain Rules Relating to Consideration

(i) The consideration must move at the desire or request of the promisor. An act done at the desire of the third party is not a consideration.

(ii) The consideration may, however, move from even a third party but under the modern English law, it must move from the promisee.

(iii) The past consideration is no consideration under the English law but it is not so in case of Indian law.

(iv) The adequacy of consideration is not relevant except for the purpose of determining whether the consent of the promisor was freely given or not.

Exception to the Rule “No Consideration No Contract”

(i) An agreement reduced in writing and registered under the law, if such agreement is made on account of natural love and affection between the parties standing in near relation to each other.

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(ii) A promise to compensate for past services rendered.

(iii) Promise made in writing to pay a time-barred debt.

(iv) Gift transactions lawfully made.

(8) What Agreements are Contracts

All agreements are contracts if they are made:-

(i) By the free consent of the parties (section 13-22);

(ii) Competent to contracts (section 11-12);

(iii) For a lawful consideration with lawful object (section 23);

(iv) Not expressedly declared to be void (section 20, 26, 27, 28, 29, 30 and 56); and

(v) In writing if required by law (e.g. Article 299 (I) of Constitution of India, Section 17 of Indian Registration Act, Companies Act etc.

9. Consent what it is?

When two or more persons agree upon the same thing in the same sense, they are said to “Consent”.

A Consent is free when it is not caused by-

(i) Coercion, as defined in Section 15, or

(ii)Undue influence, as defined in Section 16, or

(iii) Fraud, as defined in Section 17, or

(iv) Misrepresentation, as defined in Section 18, or

(v)Mistake as to fact or Law (Section 20, 21, and 22).

10. Persons not Competent to Contract

(i) Infants (who have not attained the prescribed age of majority).

But there is no bar to a minor being admitted to the benefits of a partnership.

Similarly, a Contract of insurance by a de-facto guardian of a minor for the minor’s benefit would be valid and enforceable by minor.

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A surety bond jointly executed by a minor and an adult will be void vis-à-vis the minor, but it can be enforced against the surety.

But minor’s property is liable for necessaries supplied to him, as this is covered by section 68.

(ii) An insane person, while he is insane.

(iii) Subject to disqualification under any other law.

11. Unlawful Objects or Considerations (Section 23)

The consideration or object of an agreement is lawful, unless-

(i) It is forbidden by law; or

(ii) Is of such a nature that, if permitted it would defeat the provisions of any law; or

(iii) Is fraudulent

(iv) Involves or implies injury to person or property of another, or

(v) The Court regards it as immoral or opposed to public policy

12. Kinds of Agreements

(a) Valid

A valid agreement is one which is enforceable by law. When an agreement fulfills all the requirements of enforceability and is given effect to by law, it is a valid agreement. It is called a contract. (b) Void

When an agreement violates some essential conditions of enforceability, it is a void agreement. A void agreement is one which is not enforceable at law. A void agreement has no legal existence.

Example:-

A promises to pay Rs. 10,000/- to B if he kills C.

Here the object is illegal and hence such an agreement can not be enforced and is void.

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The various kinds of void agreements under the Indian Contract Act are:-

(i) Agreements made by incompetent persons: S 11.(ii) Agreements made under mutual mistake as to a matter of fact or law

(see 20 and 22).(iii) Agreements of which consideration or object is unlawful: S. 23.(iv) Agreements of which consideration or object is unlawful in part; S.24.(v) Agreements without consideration: S.25.(vi) Agreements in restraint of marriage: S.26.(vii) Agreements in restraint of trade: S.27.(viii)Agreements in restraint of legal proceedings: S.28(ix) Agreements the meaning of which is uncertain or not capable of being

made certain: S.29.(x) Agreements by way of wager: S.30.(xi)Agreements contingent on an event happenings, and the event becoming

impossible: SS. 32, 36.(xii)Where the agreement is to do an act impossible in itself: S.56.(xiii)Where the agreement is to do an act which subsequently becomes

impossible or unlawful: S.56.© Voidable

A voidable agreement is one which is enforceable at law at the option of one or more of the parties thereto, but not at the option of the other. Thus an agreement induced by coercion, undue influence, fraud, or misrepresentation is voidable.

Example:

If A’s consent to an agreement is obtained by fraud, A has the option to treat the agreement valid and binding or not. B who obtained the consent by fraud does not have that option. Such an agreement is voidable.

(13) Contingent Contract

(i) Contingent contract is a contract to do or not to do something if some event collateral happens or does not happen. (Section 13).

(ii) The contract may be subject to a condition precedent or a condition subsequent or a condition concurrent.

(14) Quasi Contract

(i) The term ‘quasi’ is a prefix implying appearance without reality. It means ‘as if’, ‘sort of’, ‘resembles like’.

(ii) The quasi contract, therefore, means a kind of obligation, which is not really contractual in that it does not rest on any agreement but which the law treats as if it is a contract.

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(iii) It is, therefore, contractual in law, but not in fact, that is to say there is no contract in fact but there is one in the contemplation of law. Such contracts are called quasi contracts.

Example

Thus if A pays a sum of money to B believing him to be his creditors when as a matter of fact, B was not, B is bound to return the money to A on the assumption that the above sum was given to him by way of loan.

Section 68 to 72 of the Act deal with quasi contracts and these are of five kinds viz:-

(i) Claim for necessaries supplied to person incapable of entering into a contract (Section 68).

A supplies to B, a lunatic, with necessaries suitable to his condition in life. A is entitled to be reimbursed from B’s property.

(ii) Reimbursement of person paying money due by another in payment of which he is interested (Section 69).

(iii) Obligation of person enjoying benefit of non-gratuitous Act (Section 70)

A, a tradesman leaves goods at B’s house by mistake B treats the goods as his own. He is bound to pay A for them.

(iv) Rights and Liabilities of finder of goods (Section 71).

(v) Liability of person to whom money is paid or thing delivered by mistake or under coercion (Section 72).

15. Performance of Contract

(ii) The parties to a Contract must either perform or offer to perform their respective promises unless such performance is dispensed with or excused under the provisions of this Act or of any other law.

(ii) Promises also bind the representatives of the promisors in case of death unless different intention appears in the Contract.

16. Essentials of Valid Performance

(i) It should be unconditional (sec. 38);

(ii) It should be performance by promisor or by his representatives (sec. 40);

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(iii) It should be performed at proper time specified in the agreement or within a reasonable time (secs. 46-47).

(iv) It should be performed at the place specified in the agreement.

(v) The promises must have reasonable opportunity to ascertain:

(a) the thing offered; and

(b) whether the performance is of the whole or of a part [s.38(1) ]

The performance of the Contract amounts to discharge and the non-performance of contract amounts to breach of Contract.

The other means of discharge of Contract are as follows:-

(a) When performance becomes impossible or unlawful (s.56)(b)By death of the contracting party if the contract is personal in its character

(s.37).(c) By recession (s.62)(d) By novation (s.62)(e) By remission (s.63)(f) By accord and satisfaction (s.63)(g) By operation of other laws such as Presidency Towns Insolvency Act,

Provincial Insolvency Act, Agricultural Debtors Relief Act, Rent Restriction Act, C.P. and Berar Reduction of Interest Act, etc.

17. Breach of Contract and Its Consequences

When a party commits a breach of Contract the law entitles other party three remedies. He may seek to obtain:-

(i) Damages for the loss sustained, or(ii) A decree for specific performance, or(iii) An injunction

The law as to damages is regulated by the Contract Act whereas the law as to specific performance and injunction is regulated by Specific Relief Act.

(i) Damages

Section 77 of the Contract Act provides that the party who suffers by such breach of Contract is entitled to receive compensation for any loss or damage caused by breach. But such compensation is for:-

(a) Any loss or damage caused to him which naturally arose in the usual course from such breach;

(b) Which the party knew to be likely to result from the breach of it; or

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(c) Such compensation can not be given for remote or indirect loss.

(ii) Specific Performance

It can be grated only when the damages are an adequate remedy, or when the court can supervise the execution of the Contract.

Specific performance can not be enforced for contract of personal service.

Example

A agrees to buy and B agrees to sell a picture by a dead painter. A may compel B specifically to perform the contract.

(iii) Injunction

It is used as a means of enforcing a contract, generally by way of enforcing the “promise to forbear”

Example

A, a singer contracts with B, a manager of a theatre, to sing at his theatre for a year and to abstain from singing at other theatre during the period. She absents herself. B can not compel A, to sing at his theatre, but he may sue her for an injunction restraining her from singing at other theatre.

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SUGGESTED READING MATERIAL ON LAW (For the Officer-Trainees of 69th Foundational Course)

(Latest edition of each)

1. Jurisprudence and Legal Theory - By V.D. Mahajan

2. Salmond on Jurisprudence - By P.J. Fitzgerald

3. Outlines of Criminal Procedure Code- By R.V. Kelkar

4. The Code of Criminal Procedure - Revised by M. Hidyatullah(Ratanlal and Dhirajlal) & S.P. Sathe

5. The Indian Panel Code - Revised by M. Hidyatullah(Ratanlal & Dhirajlal) and R. Deb

6. The Indian Evidence Act - By Ratanlal and Dhirajlal

7. Industrial Relationas and Labour - By S.C. Srivastava

8. Administrative Law - By. I.P. Massey

9. Administrative Law - By. S.P. Sathe

10. Mulla’s Code of Civil Procedure - By P.M. Bakshi (Abridged edition for Students)

11. Introduction to the Constitution - Justice D. Basuof India

12. Constitutional Law of India - Justice D. Basu

13. Shorter Constitution of India - Justice D. Basu

14. V.N. Shukla’s Constitution of India - By Mahendra P. Singh,

15. Mulla’s Law of Contract - By J.H. Dalal

16. The Indian Contract Act - By Avtar Singh

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17. Law of Contempt of Court - By B.R. Verma

18 V.M. Shukla’s Legal Remedies - By Avtar Singh

19. Law and Poverty : Critical Essays - Edited by Prof. Upendra Baxi

20. Crisis of Indian Legal System - Prof. Upendra Baxi

21. Indian Justice- Perspective and - Justice V.R. Krishna IyerProblems

22. Law, Society and Collective - Justice V.R. Krishna IyerConsciousness

23. Of Law and Life - Justice V.R. Krishna Iyer

24. Law and the People - Justice V.R. Krishna Iyer

25. What next in the Law - Lord Denning

26. Discipline of Law - Lord Denning

Note : (a) The Officer-Trainees are expected and advised to read as many of the books, suggested above as possible. They will do well to buy some of these books for their personal and permanent use.

(b) The Officer-Trainees should also borrow bare texts of the following enactments from the Library and read them in conjunction with the relevant reading material as contained in the Law Compendium.

ii) Constitution of Indiaii) Indian Penal Code

iii) Criminal Procedure Code iv) Civil Procedure Code v) Indian Evidence Act vi) Dowry Prohibition Act

vii) Indian Contract Act viii) Contempt of Courts Act ix) Environment Protect Act x) Industrial Disputes Act

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