Expected questions on Constitutional Law of India, Indian Penal Code, Law of Contract and Law of Torts for Indian Judicial Services mains examination.
Q.1. What are the constitutional protection in respect of conviction for offence?
[Assam Judicial Service (Grade-III) Written Examination, 2011]
Ans. The Constitution of India guarantees various rights in which Article 20 deals with protection in respect of conviction for offences as under:
1. Ex post facto law- Article 20 (1)
2. Double jeopardy-Article 20 (2)
3. Prohibition against self-incrimination-Article 20 (3)
An ex post facto law is a law which imposes penalties retrospectively. Article 20 (1) states that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
Article 20 (2) states that, no person shall be prosecuted and punished for the same offence more than once. Article 20 (2) is based on the rule of nemo debet vis vexari which means that no man should be put twice in peril for the same offence. Sec. 300 of Cr.P.C. also protect us against double jeopardy but Article 20 (2) is wider than section 300.
Article 20 (3) states that no person accused of any offence shall be compelled to be a witness against himself. The provision contained in this Article embodies the general principles of English and American law that no one shall be compelled to give testimony which may expose him to prosecution for crime.
In M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 the Supreme Court observed that this right embodies the following essentials:
1. It is a right pertaining to a person who is accused of an offence.
2. It is protection against compulsion to be a witness.
3. It is a protection against such compulsion relating to his giving evidence against himself.
Sml. Selvi v. State of Karnataka AIR 2010 SC 1974 is a landmark case on this point where Supreme Court declared unconstitutional conducting the NARCO, Brain Mapping and Polygraphy on the basis of Article 20 (3).
Q.2. Whether recommendation of the President is necessary in moving a Bill, if so, explain?
[Assam Judicial Service (Grade-III) Written Examination, 2011]
Ans. In general, there is no requirement of President’s recommendation for moving a Bill but there are some circumstances in which recommendation of the President is necessary in moving a Bill. Such as under Article 3 of the Indian Constitution Parliament may by law form a new State and alter the areas, boundaries or names of existing States.
But no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.
Q.3. ln what cases does joint sitting of both the houses take place? Discuss briefly the special procedure in respect to Money Bills.
[Assam Judicial Service (Grade-III) Written Examination, 20151]
Ans. The framers of the Constitution of India were fully aware about the situations of deadlock between the upper house i.e. Rajya Sabha and the lower house i.e. Lok Sabha and accordingly they provided for joint sittings of both the Houses to break the deadlock. In Constituent Assembly it was said that in a Federal Constitution, the Upper House is composed of the representatives of the various units or states.
It is not like the House of Lords which is hereditary or which by its very character is conservative. Our Upper House is elected by the representatives of the various States and therefore it is as representative as the Lower House itself in a particular manner.
The object of providing an Upper House in the Centre is to see that the States voice or the voice of the units is adequately represented. Therefore the third way of providing to resolve the deadlock is by Joint session.
Now that is not a very ideal solution no doubt but it is a solution which is as good as possibly can be conceived of. When both the Houses meet together it is possible that either by compromise they resolve their differences or the majority of the Lower House will carry the day.
Article 108 of the Constitution provides that a Joint Session of the Parliament can be summoned by the President of India in the following situations:
If after a Bill has been passed by one House and transmitted to the other House-
(a) The Bill is rejected by the other House; or
(b) The Houses have finally disagreed as to the amendments to be made in the Bill; or
(c) More than six months elapse from the date of the reception of the Bill by the other House without the Bill being passed by it, the President may, unless the Bill has elapsed by reason of a dissolution of the House of the People, notify to the Houses by message if they are sitting or by public notification if they are not sitting, his intention to summon them to meet in a joint sitting for the purpose of deli berating and voting on the Bill.
In calculating period of six months, those days are not considered when House is prorogued or adjourned for more than four consecutive days.
The joint sitting of the Parliament is called by the President and is presided over by the Speaker of Lok Sabha or in his absence by the Deputy Speaker of the Lok Sabha or in his absence, the Deputy-Chairman of the Rajya Sabha.
The Constitution has specified that at a joint sitting, new amendments to the Bill cannot be proposed except –
(1) Those amendments that have caused final disagreement between the Houses;
(2) Those amendments that might have become necessary due to the delay in the passage of the Bill.
Till date, the joint sessions of Indian Parliament have been called for only three times i.e. Dowry Prohibition Act, 1960, Banking Service Commission Repeal Bill, 1977, and Prevention of Terrorism Act, 2002.
Money Bill and Constitution Amendment Bill are exception to joint sitting of Parliament.
Special procedure in respect of Money Bills is contained in Article 109 which states that a Money Bill shall not be introduced in the Rajya Sabha. After a Money Bill has been passed by the Lok Sabha it shall be transmitted to the Rajya Sabha for its recommendations and the Rajya Sabha shall within a period of fourteen days from the date of its receipt of the Bill return the Bill to the Lok Sabha with its recommendations and the Lok Sabha may thereupon either accept or reject all or any of the recommendations of the Rajya Sabha.
Even if Rajya Sabha does not pass a money Bill within 14 days, it is deemed to have been passed by both the Houses of Parliament after expiry of the above period. Therefore, the need to summon a joint session does not arise in the case of Money Bill.
Q.4. Is the scope of Article 32 wider than that of Article 226 of the Constitution of India? Assign reasons for your answer.
[Assam Judicial Service (Grade-III) Written Examination, 2006]
Ans. No, the scope of the provisions of Article 226 is wider than Article 32. The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the Constitution for the violation of fundamental rights guaranteed under Part – III of the Constitution.
Any provision in any Constitution for Fundamental Rights is meaningless unless there are adequate safeguards to ensure enforcement of such provisions.
Since the reality of such rights is tested only through the judiciary, the safeguards assume even more importance. Article 32 is referred to as the “Constitutional Remedy” for enforcement of Fundamental Rights. This provision itself has been included in the Fundamental Rights and hence it cannot be denied to any person.
Dr. Ambedkar described Article 32 as the most important one, without which the Constitution would be reduced to nullity. It is also referred to as the heart and soul of the Constitution. By including Article 32 in the Fundamental Rights, the Supreme Court has been made the protector and guarantor of these Rights.
Article 226 empowers High Court to issue certain writs for the enforcement of any of the rights conferred by Part III and for any other purpose. A High Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue a writ to a different Bench of the High Court; much less can the writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. The High Courts are not constituted as inferior courts in our constitutional scheme.
Thus, it is evident from the above that Article 32 is applicable only in case of enforcing fundamental rights but Article 226 is applied for other constitutional rights also including fundamental rights. Moreover, Article 32 may be suspended but there is no provision to suspend Article 226.
Q.5. Write short note on Supervisory Jurisdiction of the High Court.
[Assam Judicial Service (Grade-III) Written Examination, 2013]
Ans. Power of superintendence over all courts by the High Court is contained in Article 227 of the Constitution. A perusal of Article 227 of the Constitution would indicate that the power of superintendence conferred on the High Court is a power that is confined to courts and tribunals in relation to which it exercises jurisdiction.
The power of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction intended to ensure that subordinate courts and tribunals act within the limits of their authority and according to law.
The jurisdiction under Article 227 on the other hand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Court’s power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
Q.6. Distinguish between Preparation and attempt to commit a crime.
[Assam Judicial Service (Grade-III) Main Examination, 2011]
Ans. There is a very fine line between preparation and attempt. While IPC does not define either of them, it is very important to distinguish between them because attempt is a crime but preparation is not. Both, preparation and attempt are physical manifestations of the criminal intention.
But attempt goes a lot further than preparation towards the actual happening of crime. While in preparation, there is a possibility that the person may abandon his plan, but attempt leaves no room for that. For example- keeping a pistol in pocket and looking for the enemy to kill is a preparation because one can abandon the plan anytime, but taking out the pistol and pulling the trigger is attempt because it leaves no room for turning back. Thus, in general, Preparation involves collecting material, resources, and planning for committing an act while attempt signifies a direct movement towards commission after the preparations are made.
Ordinarily, to constitute an attempt the following elements are needed:
i. Mens rea to commit the crime
ii. An act which constitutes the actus reus of a criminal attempt failure in accomplishment
In the case of R v. Cheesman 1862, Lord Blackburn identified a key difference between the two. He says that if the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.
However, this is not the only criteria for determining an attempt.
The following are four tests that come in handy in distinguishing between the two:
1. Last Step Test or Proximity Rule:
As per this test, anything short of last step is preparation and not attempt. This is because as long as there is a step remaining for completion of the crime, the person can abandon it. For example- A obtains poison to kill B and mixes it with food that B is supposed to eat. But he has not yet given the food to B. Thus, it is still preparation. As soon as he keeps the food on the table from where B eats every day, the last step is done and it becomes an attempt.
In the case of R v. Riyasat Ali, the accused gave orders to print forms that looked like they were from Bengal Coal Company. He proofread the samples two times and gave orders for correction as well so that they would appear exactly as forms of the said company. At this time he was arrested for attempt to make false document under section 464. However, it was held that it was not an attempt because the name of the company and the seal were not put on the forms and until that was done, the forgery would not be complete.
In the case of Abhayanand Mishra v. State of Bihar, A applied to the Patna University for MA exam and he supplied documents proving that he was a graduate and was working as a headmaster of a school. Later on it was found that the documents were fake. It was held that it was an attempt to cheat because he had done everything towards achieving his goal.
2. Indispensable Element Test or Theory of Impossibility:
As per this test, all of indispensable elements must be present to equal attempt. For example, a person has the gun to kill but he forgot the bullets. In this case, it would not be an attempt. Further, he goes to place where victim should be but is not then he is not guilty of attempt under this test. In other words, if there is something a person needs to commit the crime but it is not present, then there is not an attempt.
This test has generated a lot of controversy ever since it was laid in the case of Queen v. Collins, where it was held that a pickpocket was not guilty of attempt even when he put his hand into the pocket of someone with an intention to steal but did not find anything. Similarly, in the case of R v. Mc Pherson, the accused was held not guilty of attempting to break into a building and steal goods because the goods were not there.
However, these cases were overruled in R v. King, where the accused was convicted for attempting to steal from the hand bag of a woman although there was nothing in the bag. Illustration (b) of section 511 is based on this decision.
3. Interruption Test:
But for interruption test if the action proves that the person would have gone through with the plan if not for the interruption such as arrest, then it is an attempt. For example- a person points a gun at another and is about to pull the trigger. He is overpowered and was stopped from pulling the trigger. This shows that if he had not been interrupted, he would have committed the crime and he is thus guilty of attempt even though the last step of the crime has not been performed.
4. Unequivocally Test or on the job Theory:
If a person does something that shows his commitment to follow through and commit the crime then it is an attempt. For example, in the case of State of Maharastra v. Mohd. Yakub, three persons were found with a truck loaded with silver near the sea dock. Further, the sound of engine of a mechanized boat was heard from a nearby creek.
They were convicted of attempting to smuggle silver. J Sarkaria observed that what constitute an attempt is a mixed question of law and fact. Attempt is done when the culprit takes deliberate and overt steps that show an unequivocal intention to commit the offence even if the step is not the penultimate one.
Q.7. Write short note on insanity as a defence in a criminal trial.
[Goa Judicial Service (Junior Division) Examination, 2010]
Ans. The provisions relating to insanity as a general defence are contained in section 84 IPC which is based on Mc’Naghten Rule. Sec. 84 IPC mentions as under-
84. Act of a Person of Unsound Mind.- Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
For application of section 84, following two conditions should be fulfilled:
i. At the time of commission of the act, the person must be of unsound mind.
ii. He must be incapable of knowing nature of the act or that what he was doing was either wrong or contrary to law.
The legal conception of insanity defers considerably from the medical conception. It is not every form of insanity or madness that is recognised by law as a sufficient cause. The court is concerned with legal insanity and not with medical insanity. According to medical science insanity is another name for mental abnormality due to various causes and existing in various degrees.
Every form of insanity or madness is not recognized by law as legal insanity. The crucial point of time for deciding whether the benefit of section 84 could be given or not is the material time when the offence was committed.
Unsoundness of mind non-compos mentis covers a wide range and is synonymous with insanity, lunacy, madness, mental derangement, mental disorder and mental aberration or alienation.
The insane persons may be divided into four kinds:
(i) A lunatic;
(ii) An idiot;
(iii) One non compos mentis by sickness, or
(iv) By drink.
A lunatic and an idiot, may be permanently so, or they may be subject to only temporary and occasional fits of malady. A person suffering from a total alienation of the mind is called ‘insane’ or ‘mad’, the term ‘lunatic’ being reserved for one whose disorder is intermittent with lucid intervals.
An idiot is one who is of non-sane memory from his birth of perpetual infirmity, without lucid intervals. A person made non compos mentis by illness is excused in criminal cases for such acts as are committed while under the influence of his disorder. ‘Unsoundness of mind’ naturally impairs the cognitive faculties of the mind and exempts a person from criminal responsibility.
Whether a person, who, under an insane delusion as to the existing facts, commits an offence in consequence thereof is, therefore, to be excused, depends upon the nature of the delusion. If he is laboring under a partial delusion, and it is not in other respects insane he must be considered in the same situation as to the responsibility as if the facts, with respect to which the delusion exists, were real.
If a person afflicted with insane delusion, in respect of one or more particular subjects or persons, commits a crime, knowing that he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed.
Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind, and it is by that test, as distinguished from medical test, that the criminality of an act is to be determined.
The burden to proof the insanity is on the person who is claiming for this. The procedure of trial in respect of an unsound accused is contained in section 328-329 IPC.
Act not intended and not known to be likely to cause death or grievous hurt, done by consent:
Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.
Kerala High Court in Deepa and others v. S.I. of Police, and another, 1986 CriLJ 1120 said that Section 87 deals with cases where persons above 18 years of age agree to suffer the harm other than death or grievous hurt. Here the question of consent of individuals does not arise. What is paramount is the interest of the society.
Q.8. A says to B, “I shall shoot you tomorrow.” Next day B waits with a pistol and as soon as he sees A, he shoots A. A dies. Can B successfully utilize his plea of right to self defence?
[Uttarakhand Civil Judge (J.D.) Mains Examination, 2011]
Ans. No. B cannot successfully utilize his plea of right to self defence because under section 99 of IPC, there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Sec. 99 mentions as under-
There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.
There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office though that direction may not be strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to protection of the public authorities. Clause (3) of section 99 is based on the principle that no man has the right to take the law into his own hands for the protection of his person or property if there is a reasonable opportunity of redress by recourse to public authorities.
Here, B had the time to have recourse of public authority but he failed to do so and hence he cannot exercise the right of private defence against A.
Q.9. A while addressing a rally, says “This is the government of corrupt people. Go, torch their houses and kill them so that corruption is uprooted in this country.” Has A committed a crime?
[Uttarakhand Civil Judge (J.D.) Mains Examination, 2011]
Ans. Yes, A has committed the offence of Sedition defined under section 124-Aof IPC. Sec. 124-A mentions that-
Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
As A’s words amount to attempt to excite disaffection towards government established by law in India, he has committed sedition.
Q.10. X says at an electoral meeting, “This is a government of persons neck deep in corruption. Give them a befitting reply at the hustings.” Has X committed a crime?
[Uttarakhand Civil Judge (J.D.) Mains Examination, 2011]
Ans. X has not committed any offence whatsoever under IPC or under any other law by the aforesaid statement. Article 19 (1) of the Constitution of India provides freedom of speech and expression to all Indian citizens but this fundamental right is not absolute right. Restrictions on freedom of speech and expression may be imposed under Article 19(2) which says that nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
Statement made by X at an electoral meeting does not come in purview of Art. 19 (2).
Q.11. Write short note on rioting.
[Assam Judicial Service (Grade-III) Main Examination, 2015]
Ans. As per section 146 IPC, whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. Thus, it is clear that there should be minimum five persons for committing rioting. To constitute the offence of rioting, the following five essential ingredients must remain present-
(a) An assembly of five or more persons
(b) An unlawful assembly
(c) Members of the assembly used force or violence
(d) Offender was a member of that assembly and
(e) Force or violence was used by the assembly in pursuance of their common object.
It has been held in Samaruddinv. Emperor (1913) ILR 40 Cal 367, that the word violence in Section 146, I.P.C. is not restricted to force used against persons only, but extends also to force against inanimate objects.
Rioting is punishable under section 147 IPC with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Bombay High Court in Suresh v. State of Maharashtra, on 28 November, 2008 said that the offence under Section 147 of the I.P.C. is an individual offence and each member is guilty of offence of rioting if conditions of Section 146 of the I.P.C. are fulfilled. In fact, offence under Section 147 of the I.P.C. is aggravated form of the offence punishable under Section 143 of the I.P.C.
Himachal Pradesh High Court in A mar Singh v. State of Himachal Pradesh, on 25 June, 2015 said that the offence of rioting can only be committed by an unlawful assembly for which there have to be an assembly of five or more persons.
Jharkhand High Court in Basudeo Yadav v. State of Jharkhand, on 10 March, 2017 said that the major element of rioting is the use of force or violence by unlawful assembly or a person of that unlawful assembly in prosecution of common object.
Q.12. A intentionally causes Z’s death, partly by illegally omitting to give Z food and partly by beating Z. What offence, if any, has been committed by A? Support your answer with the help of provisions of law and illustrations.
[Himachal Pradesh Judicial Service (Grade-III) Main Examination, 2014]
Ans. A has committed murder of Z. The question is based on section 36 IPC which is reproduced here under-
Effect Caused Partly by Act and Partly by Omission:
Wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by an omission is the same offence.
Supreme Court of India in P. B. Desai v. State of Maharashtra & another, on 13 September, 2013 said that an omission is sometimes called a negative act, but this seems dangerous practice, for it too easily permits an omission to be substituted for an act without requiring the special requirement for omission liability such as legal duty and the physical capacity to perform the act.
Criminal liability for an omission is also well accepted where the actor has a legal duty and the capacity to act. It is said that this rather fundamental exception to the act requirement is permitted because an actor’s failure to perform a legal duty of which he is capable, satisfies the purposes of the act requirement or at least satisfies them as well as an act does.
Specifically these two special requirements for omission liability help to exclude from liability cases of fantasizing and irresolute intentions, important purposes of the act requirement.
Q.13. Two brothers decide to teach a lesson to Mahadeva as he had attempted to molest their sister and when questioned, he insults and abused them in vulgar language in front of public. Hence, along with three friends, they conspire and decide to assault him, while he is in his house. All of them get armed with weapons like choppers, axe and clubs and go to his house. They forcibly enter the house and attack him. At that time Mahadeva is carrying his four year old son in his arms. One of the accused in order to attack Mahadeva snatches the child and throws it down on the ground. While falling, the head of the child hits grinding stone and it dies instantaneously. The two of the accused hold Mahadeva and the other accused, attack him with weapons indiscriminately. When Mahadeva falls down unconscious they leave the place. Then after Mahadeva is taken to a hospital but while under treatment breathes his last. The post-mortem report indicates that the death was due to excessive haemorrhage and multiple injuries to vital organs like brain, liver and kidney.
What are all the offences committed by the accused? Give reasons with reference to provisions of IPC.
[Karnataka District Judge Examination, 2007]
Ans. All accused are liable for house trespass-and murder read with section 149 IPC. House trespass is defined in section 442 as under-
Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house- trespass “.
When two brothers along with three friends entered in Mahadeva’s house, they committed house trespass which is punishable in section 448 IPC.
As one of the accused snatched child from deceased and threw on ground, all accused were fully aware about the possibility of this incident so all accused are liable for committing murder of child as well as of Mahadeva as post mortem report indicates that death was caused due to excessive haemorrhage and multiple injuries to vital organs like brain, liver and kidney which were caused by accused.
Hence, all are punishable under section 302 IPC. Sec. 149 deals with every member of unlawful assembly guilty of offence committed in prosecution of common object. In question, there are five persons (two brothers and three friends). Thus, they have formed unlawful assembly.
In short, they have committed offences under sections 448, 302/149 IPC.
Q.14. A private detective, who is entrusted with the detection of a crime, follows a woman who is suspected of the commission of the crime, in the course of which he attempts to contact her to foster personal interaction with her repeatedly, though she rebuffed him. What is the offence, if any, committed by him? State reasons.
[Kerala HJS Examination, 2012]
Ans. He has not committed any offence.
The question is related with Section 354D of IPC which defines ‘stalking’ as any man who-
(i) Follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
(ii) Monitors the use by a woman of the internet, email or any other form of electronic communication; or
(iii) Watches or spies on a woman in any manner, that results in a fear of violence or serious alarm or distress in the mind of such woman, or interferes with the mental peace of the woman, commits the offence of stalking:
But the Provision attached with this section says that such conduct shall not amount to stalking if the man who pursued it proves that—
(i) It was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
(ii) It was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
(iii) In the particular circumstances such conduct was reasonable and justified.
Thus, it is clear from the Provision that the private detective has not committed any offence.
Q.15. Write short note on Voyeurism.
[Assam Judicial Service (Grade-III) Main Examination, 2013]
Ans. The term ‘voyeurism’ means gaining sexual pleasure from watching others when they are naked or engaged in sexual activity. It is a psychosexual disorder in which a person derives sexual pleasure and gratification from looking at the naked bodies and genital organs or observing the sexual acts of others. The voyeur is usually hidden from view of others. It is defined in section 354C IPC as under-
Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.
For the purpose of this section, “private act” includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim’s genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.
Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.
Voyeurism is the practice of spying on people who are engaged in some sort of an intimate behavior such as sexual activity, act of undressing or any other kind of act, which is considered to be of a private nature. Voyeurism was added in IPC by the Criminal Law (Amendment) Act, 2013.
Q.16. What is criminal force? What is the difference between criminal force and assault?
[Assam Judicial Service (Grade-III) Main Examination, 2015]
Ans. As per section 350 IPC, whoever intentionally uses force to any person, without that person’s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.
The essential elements of criminal force are as under:
a. There must be an intentional use of force to any person
b. Such force must have been used without that person’s consent
c. It must have been used –
(i) In order to commit any offence; or
(ii) With intent to cause injury, fear or annoyance to the person against whom it is used.
Patna High Court in State of Bihar v. Musa Ansari, on 6 October, 2015 held that a close and cautious reading of the definition of criminal force, as contained in Section 350 of the Indian Penal Code, means that whoever, intentionally uses force to any person, without that person’s consent, in order to the committing of any offence, or intending, by the use of such force, to cause, or knowing it to be likely that by the use of such force, he will cause injury, fear, or annoyance to the person to whom the force is used, is said to use criminal force to that other.
Assault, section 351 IPC, is defined as whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.
Explanation- Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.
The differences between the two are as: The criminal force is intentional use of force to other person without his consent but the assault is the gesture and preparation to apprehend the other person that the offender will use criminal force. Criminal force includes assault but assault may not include criminal force necessarily.
Punjab-Haryana High Court in Major Singh Lachhman Singh v. State, AIR 1963 P H 443 said that the use of criminal force per se is punishable under Section 350 of the Indian Penal Code and the commission of assault under Section 351.
Q.17. A threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus induces Z to give money. State as to what offence, if any, A has committed.
[West Bengal Judicial Service (Written) Examination, 2016]
Ans. A has committed extortion defined in section 383 IPC which says that-
Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits “extortion”.
Section 383 IPC defines ‘extortion’ whereas Section 384 IPC is the penal section for extortion whereas Section 385 IPC is for attempt to commit extortion. In order to complete the act of extortion the person who was put in fear, must have been induced to deliver the property.
If the act of inducement caused by the wrong doer should bring forth its result at least by the victim consenting to deliver property even if actual delivery does not take place due to any fortuitous circumstances which would constitute extortion, but if it falls to produce the requisite effect, the act would remain only at the stage of attempt to commit extortion.
The question is based on illustration (a) of section 383 IPC.
Q.18. A finds a purse with money lying on the road. A did not know to whom did the purse belong. Subsequently, A learns that purse belonged to B but A retained the purse and appropriated the money. What offence, if any, has A committed?
[Assam Judicial Service (Grade-III) Main Examination, 2013]
Ans. A has committed criminal misappropriation of property defined in section 403 IPC. Section 403 provides that whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
The question is based on illustration (e) of section 403 IPC.
Q.19. A makes an attempt to pick, the pocket of Z by thrusting his hand in to Z’s Pocket. A fails in the attempt in consequence of Zs having nothing in the Pocket. State as to what offence, if any, A has committed.
[West Bengal Judicial Service (Written) Examination, 2016]
Ans. A has committed the offence of attempt to theft and he is guilty under section 379/ 511 IPC. Section 511 deals with punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.
Section 511 IPC is the solitary provision included in the last chapter of the IPC under the title Of Attempts to Commit Offences. It makes attempt to commit an offence punishable. The offence attempted should be one punishable by the Code with imprisonment.
The conditions stipulated in the provision for completion of the said offence are:
(1) The offender should have done some act towards commission of the main offence.
(2) Such an attempt is not expressly covered as a penal provision elsewhere in the Code. Thus, attempt on the part of the accused is sine qua non for the offence under Section 511.
The question is based on illustration (b) of section 511 IPC.
Q.20. Write a note on “offer and invitation to offer”.
[Manipur Judicial Service (Grade-III) Written Examination, 2015]
Explain with appropriate example ‘Implied Offer’ and ‘invitation to make an offer’. Whether announcement of voluntary retirement Scheme by a Nationalised Bank is a valid offer?
[West Bengal Judicial Service (Written) Examination, 2016]
Ans. When the offer is made orally or in writing, it is express and when the offer is inferred from the conduct of parties it is implied offer. In other words, an express offer is made by words spoken or written and an implied offer is not made by words spoken or written. It is implied from the conduct of the parties or from the circumstances.
Invitation to Offer:
It comes from Latin phrase invitatio ad offerendum. In invitation to offer, the person invites others to offer him in respect of any item. In simple terms, in invitation to offer the offer or does not wish to implement terms, but merely seeks to initiate negotiations. For example- displaying of books in book stand is not offer rather it is invitation to offer or goods displaced in a shop window with a price tag are an invitation to offer.
In Hyde v. Wrench,  49 ER 132 the defendant offered to sell his farm for £1000. The plaintiff made an offer of £950 which was refused. The plaintiff then wrote saying that he was ready to pay £1000 and attempted to enforce the contract of sale at that price. The court held that there was no longer offer which he could accept.
In Harvey v. Facie,  AC 552 the plaintiffs telegraphed to the defendants writing: “Will you sell us Bumper Hall Pen? Telegraph lowest cash price.” The defendants replied also by a telegram, “Lowest price for Bumper Hall Pen £900”. The plaintiffs immediately sent their last telegram stating: “We agree to buy Bumper Hall Pen for £900 asked by you”.
The defendants refused to sell the plot of land (Bumper Hall Pen) at that price. The plaintiffs contention that by quoting their minimum price in response to the inquiry, the defendants had made an offer to sell at that price, was turned down by the Judicial Committee. Their Lordship pointed out that in their first telegram, the plaintiffs had asked two questions, first as to the willingness to sell and second, as to the lowest price. They reserved their answer as to the willingness to sell. Thus, they had made no offer.
Announcement of Voluntary Retirement Scheme by a nationalized bank is not an offer rather it is an invitation to offer. In Madhya Pradesh State Road Transport Corporation v. Manoj Kumar, on 29 August, 2016 Supreme Court held that Voluntary Retirement Scheme is an invitation to offer and not an offer.