Most probable questions on Constitutional Law of India, Indian Penal Code, Law of Contract and Law of Torts especially compiled for Indian Judicial Service Mains Examination!
Q.1. The term ‘life’, as used in Article 21, means something more than a mere animal existence. Elucidate.
[Assam Judicial Service (Grade-III) Written Examination, 2006]
Ans. Article 21 of the Constitution protects the life and personal liberty of every person. Earlier, the term ‘life’ was literally interpreted by the Court but later this term was liberally interpreted including everything which is essential for a dignified life. Justice Subba Rao in Kharak Singh v. State of Uttar Pradesh, 1964 SCR (1) 332 quoted from Justice Field in Munn v. Illinois, 94 U.S. 113 (1876) to emphasize the quality of life covered by Article 21 as under-
By the term “life,” as here used, something more is meant than mere animal existence.
The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.
Further, in Munn v. Illinois, 94 U.S. 113 (1876) the court observed that by the term “liberty,” as used in the provision, something more is meant than mere freedom from physical restraint or the bounds of a prison. It means freedom to go where one may choose, and to act in such manner, not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of his happiness that is, to pursue such callings and avocations as may be most suitable to develop his capacities and give to them their highest enjoyment.
In Boiling v. Sharpe, (1954) 347 U.S. 407, 499 the Supreme Court of America observed that the said expression was not confined to mere freedom from bodily restraint and that liberty under law extended to the full range of conduct which the individual was free to pursue.
Supreme Court in Kharak Singh v. State of Uttar Pradesh, defined the right of personal liberty in Article 21 as a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.
The right to life is undoubtedly the most fundamental of all rights. All other rights add quality to the life in question and depend on the pre-existence of life itself for their operation. As human rights can only attach to living beings, one might expect the right to life itself to be in some sense primary, since none of the other rights would have any value or utility without it. There would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its original sense.
The apex Court, in the case of Chameli Singh & others v. State of Uttar Pradesh and another, MR 1996 SC 1051, held as follows:
Right to life” means to live like a human being and it is not ensured by meeting only the animal needs of man. It includes the right to live in any civilised society implies the right to food, water, decent environment, education, medical care and shelter.
The Supreme Court has reiterated in many cases its stand that right to life was something more than mere animal existence.
Q.2. Write a short note on Attorney General for India.
[Advocates-on-Record Examination, 2011]
Ans. The Attorney-General of India is the most superior and the only constitutional position with respect to law officer of the Central Government. Article 76 of the Constitution of India talks of his duty and states that his duty is to give advice to the Government of India upon such legal matters, and to perform other duties of a legal character which may be referred or assigned to him by the President and to discharge the functions conferred on him by or under the Constitution or any other law from time to time.
He is appointed by the President of India and for this he shall be qualified to be appointed as a Judge of the Supreme Court as has been mentioned under Article 76 of the Constitution of India. While performing his duties, the Attorney- General has the right of audience in all courts in the territory of India. He holds his office during the pleasure of the President, and receives his remuneration as the President determines.
He also has the right with respect to parliamentary proceedings, as Article 88 of the Constitution of India grants right to the Attorney-General of India to speak in, and otherwise to take part in the proceedings of, either House, any joint sitting of the Houses, and any committee of Parliament of which he may be named a member, but shall not by virtue of this article be entitled to vote.
Recently the help provided by the Attorney General in the Campa-Cola Compound demolition mess and the stay order of the Supreme Court thereafter shows the social importance of this constitutional position.
Q.3. Can the Directive Principles of State Policy override the provisions relating to Fundamental Rights? Explain.
[Tripura Judicial Service (Grade-III) Written Examination, 2010]
Ans. Fundamental Rights contained in the Part III of the Constitution are most basic and inalienable human rights guaranteed to the citizens of India, and are enforceable through the ‘right to constitutional remedy’ under Article 32 which in itself is a Fundamental Right. Fundamental Rights can also be protected and enforced by taking recourse to the writ jurisdiction of the High Courts under Article 226.
However, the Directive Principles of State Policy are merely the fundamental principles of governance seeking to establish a welfare state for the citizens. However, they do not enjoy the same protection as fundamental rights and cannot be enforced either through the Supreme Court or the High Court.
Article 37 of the Constitution states that the DPSPs are not enforceable in the Courts of law. In the case of State of Madras v. Champakam Dorairajan (1951) it was held that ‘the DPSPs cannot override the Fundamental Rights as they have to conform to and run subsidiary to the Fundamental Rights and in case of any conflict between the two, the Fundamental Right shall prevail over DPSPs.
However, gradually recognizing the significance of the DPSPs, it was held in the case of In re Kerala Education Bill that although the DPSPs cannot override Fundamental Rights but they are not to be entirely ignored and the scope and ambit of Fundamental Rights has to be decided in light of the DPSPs.
It was held that the rule of harmonious construction should be followed where both Fundamental Rights and DPSPs appear to be at conflict, and it should be tried to give effect to both as much as possible.
In the recent past the Supreme Court in its activist phase has extended the scope of ‘right to life and personal liberty’ under Article 21 by reading it with many DPSPs, thereby taking many Directives to the status of Fundamental Rights.
Q.4. Write short note on Money Bill.
[Assam Judicial Service (Grade-III) Written Examination, 2013]
Ans. A money Bill is defined by Article 110 of the Constitution. It contains only provisions that deal with all or any of the matters listed therein. These comprise a set of seven features, broadly including items such as the imposition or regulation of a tax, the regulation of the borrowing of money by the Government of India, the withdrawal of money from the Consolidated Fund of India and so forth.
Article 110 further clarifies that in cases where a dispute arises over whether a Bill is a money Bill or not, the Lok Sabha Speaker’s decision on the issue shall be considered final.
Supreme Court in Mohd. Saeed Siddiqui v. State of UP, (2014) ruled, in the context of State legislatures, that a Speaker’s decision to classify a draft statute as a money Bill, was not judicially reviewable, even if the classification was incorrect. This is because the error in question, the court ruled, constituted nothing more than a mere procedural irregularity.
Some special features of money Bill are under:
i. A money Bill can be introduced / originated only in Lok Sabha.
ii. A money Bill can be introduced only on prior recommendations of the President.
iii. A money Bill can be a government Bill only. It cannot be a private Bill.
iv. A money Bill may be withheld by the President but he cannot return it for reconsideration of the Lok Sabha.
Q.5. Can Article 136 be invoked against an interim award of a Water Disputes Tribunal and if so, on what grounds?
[Advocates-on-Record Examination, 2007]
Ans. The literal interpretation of Article 136 says that it can be invoked against an interim award of a Water Dispute Tribunal. The Supreme Court can grant special leave to appeal against any order/judgement of court/tribunal.
There are plethora of cases where the Supreme Court has allowed and decided the matter finally. For example- the competence of the Tribunal to deal with a request for an interim allocation (Cauvery); the non-implementation of an Order of the Tribunal (Cauvery); failures on the environmental and rehabilitation fronts (Narmada); the constitutionality of an Act of a State Legislature terminating all past water accords (Punjab); etc.
The Supreme Court of India in The Matter of Cauvery Water on 22 November, 1991 held that this Court is the ultimate interpreter of the provisions of the Inter-State Water Disputes Act, 1956 and has an authority to decide the limits, powers and the jurisdiction of the Tribunal constituted under the Act.
This Court has not only the power but obligation to decide as to whether the Tribunal has any jurisdiction or not under the Act, to entertain any interim application till it finally decides the dispute referred to it.
The National Commission to Review the Working of the Constitution observed that the Inter State Water Dispute Act, 1956 should be repealed and that inter-State river water disputes should be brought within the original jurisdiction of the Supreme Court, as is the case in the United States.
Q.6. On what grounds may emergency he proclaimed under Article 356 of the Constitution of India?
[Tripura Judicial Service (Grade-III) Written Examination, 2010]
What are the essential prerequisites for a proclamation to be made under Article 356 of the Constitution of India? Is such a proclamation justiciable in a court of law?
[Assam Judicial Service (Grade-III) Written Examination, 2008]
Explain what is meant by expression ‘failure constitutional machinery in a State under Article 356 of the Constitution of India’. Which situation will fall and which will not fall within the expression?
[Bihar Judicial Service Main Examination, 2000]
Ans. Article 356(1) of the Constitution contemplates the provision of emergency in a State in case of the failure of the constitutional machinery in that State. It provides that if the President on receipt of a report from the Governor or otherwise, is satisfied that a situation has arisen in the state in which the Government of the State cannot be carried on in accordance with the provisions on the Constitution, the President may by proclamation-
1. Assume to himself all or any of the functions of the State Government, or the powers of the Governor, or anybody or authority in the State other than the State Legislature.
2. Declare that the powers of the State legislature is to be exercised by the Parliament.
3. Make such incidental provisions as may appear to him to be necessary or desirable for giving effect to the provisions of proclamation; the President may even suspend whole or in part the provisions of the Constitution relating to anybody or authority in the State.
Article 355 imposes an obligation upon the Centre to ensure that each State Government is carried on in accordance with the Constitution, and Article 356 is designed to strengthen the hands of the Centre to discharge this obligation and to protect the States. Accordingly the Centre is empowered to impose emergency not only on the report of the Governor, but also, if the information is received otherwise.
Following are some of grounds which afford the proclamation of emergency under Article 356:
a. No party in the Assembly has a majority in the State legislative Assembly to be able to form the Government.
b. A Government in office loses its majority due to defections or no alternative government can be formed.
c. A government may have majority support in the House, but it may function in a manner subversive of the Constitution. As for example it may promote fissiparous tendencies in the Government.
d. The State Government does not comply with the directions issued by the Central Government under various constitutional provisions.
e. Security of the State may be threatened by a widespread breakdown of law and order in the State.
So far as the justifiability of the proclamation under Article 356 is concerned, in the landmark case of S.R Bommai v. Union of India, AIR 1994 SC 1918 the Supreme Court held that validity of the proclamation issued under Article 356(1), is justiciable on the ground that “whether it was issued on the basis of any material at all, or whether the material was relevant, or whether the proclamation was issued in the mala fide exercise of power, or was based on wholly extraneous considerations or irrelevant grounds.
[West Bengal Judicial Service (Written) Examination, 2016]
Ans. A has committed no offence. A’s act is covered under general exception in section 76 Indian Penal Code. Section 76 IPC provides that-
Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it. –
The question is based on illustration (b) of section 76 IPC.
Q.8. A, a man who has consumed too much liquor, takes a knife from his house and goes along the road shouting his intention to kill B, with whom he had quarreled earlier, and kills C who tries to pacify him. What offence, if any, has been committed by A in this case? Support your answer with legal provisions and reasons.
[Himachal Pradesh Judicial Service (Grade-III) Main Examination, 2014J
Ans. A has committed the offence of murder defined in section 300 IPC and it will not be any defence that he had consumed much liquor. Hence, A would be imputed with the same knowledge as he would have had, had he been sober and his act would amount to murder. Self-induced intoxication is no defence as held in Director of Public Prosecutions v. Beard, [1920] AC 479 (HL).
Q.9. A and Z agrees to fence with each other for amusement. In the course of such fencing, while playing fairly, A hurts Z. Is A liable for any offence? Give reasons and relevant legal provisions in support of your answer.
[Himachal Pradesh Judicial Service (Grade-III) Main Examination, 2014]
Ans. No, A is not liable for any offence because his act is included in general exception under IPC. Sec. 87 IPC reads as under-
87. 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.10. P is on the 3rd floor of a house which is on fire with N, a child. People below hold out a blanket. P drops N from the top, knowing it to be likely that the fall may kill the child. The child falls to his death. Discuss if P has committed any offence.
(Kerala Judicial Test (Higher) Examination, 2016]
Ans. P has not committed any offence as his act is protected under section 92 IPC which provides that-
Nothing is an offence by reason of any harm which it may causes to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit The question is based on illustration (d) of section 425 IPC.
Patna High Court in Dr. Deepa Sahai v. State of Bihar & another, on 21 June, 2017 observed that Section 92 provides for exemption for acts done in good faith for the benefit of a person without his consent though the acts cause harm to a person and that person has not consented to suffer such harm.
Q.11. ‘X’ a doctor, informs his patient’ Y’ that he was suffering from cancer. Hearing this ‘Y’ dies of heart failure. Has “X” committed any offence? Discuss stating reasons.
[Legal Officer, RBI Examination, 2012]
Ans. No, X has not committed any offence. He is fully protected under section 93 IPC which mentions as under:
93. Communication Made in Good Faith:
No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person. Madras High Court in Dr. J. S. Rajkumar v. Assistant Commissioner of Police, on 3 August, 2012 held that section 93 IPC saves from criminality certain communications made in good faith.
[Legal Officer, Reserve Bank of India Examination, 2016]
Ans. Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane. The question is based on illustration (a) of section 98 IPC. Sec. 98 IPC mentions that when an act which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.
Q.13. A, a village watchman, knowing that a considerable body of strangers has passed through his village in order to commit a decoity in the house of B, a wealthy businessman in the village. A under the law was bound to give early and punctual information of the aforesaid fact to the officer of the nearest Police Station. A gave information to the Police Officer that a body of suspicious character passed through the village with a view to commit decioty in a certain distant place in a different direction. Whether A is guilty of commission of any offence, if so, under what provision of law and why?
[Assam Judicial Service (Grade-III) Main Examination, 2012]
Ans. Yes, A is punishable under section 118 of IPC. Sec. 39 Cr.P.C. imposes duty on every person aware of the commission of, or of the intention of any other person to commit any offence punishable under sections 392 to 399, both inclusive, and section 402 (that is to say, offences of robbery and dacoity) to inform nearest Police Officer or Magistrate of such commission or intention. From the question, it is clear that A has given information to Police Officer.
If A had not informed to Police he will have committed offence under section 202 IPC which deals with ‘intentional omission to give information of offence by person bound to inform’. But, A has informed which is wrong. Thus, A has committed offence under section 118 IPC which is as under-
Whoever intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with death or imprisonment for life, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence or makes any representation which he knows to be false respecting such design, shall if that offence be committed, be punished with imprisonment of either description for a term which may extend to seven years, or, if the offence of not committed, with imprisonment of either description, for a term which may extend to three years; and in either case shall also be liable to fine.
The question is based on illustration of section 118 IPC.
Q.14. Write short note on affray.
[Andhra Pradesh Civil Judge Written Examination, 2016]
Ans. The offence of affray postulates the commission of a definite assault or a breach of the peace, and mere quarreling or abusing in a street without exchange of blows is not sufficient to attract the application of this section.
Where two brothers were found quarreling and abusing each other on a public road and a large crowd gathered and the traffic was temporarily stopped, but no actual fighting took place, it was held that no affray was committed.
Affray is defined in section 159 as under:
159. Affray-When two or more persons, by fighting in a public place, disturb the public peace, they are said to “commit an affray”.
The necessary ingredients to constitute an affray as defined in section 159 of the IPC, there must be-
(1) A fighting
(2) Between two or more persons,
(3) In a public place, and
(4) Consequent disturbance of the public place.
But, merely because two persons fight on a public street or enter into an altercation of words, that will not amount to an offence of affray.
In Balakrishna Shetty v. State of Mysore, (1966) 1 Mys LJ 528, it was laid down that fighting connotes contest or struggle between two or more persons and if a person is attacked in a public place and if he tries to escape it cannot be said that there is any fight between the two.
The offence of ‘affray’ is punishable under section 160 IPC.
Q.15. A attempts to pull B’s nose, B, in exercise of his right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion and in consequence hit B on his head by a heavy blunt object resulting in B’s death. Whether A has committed murder?
[Assam Judicial Service (Grade-III) Main Examination, 2012]
Ans. Yes, A has committed murder punishable under section 302 of IPC. As per section 96 of IPC, nothing is an offence which is done in the exercise of the right of private defence. What B has done that is in exercise of right of private defence. In question, A attempted to pull B’s nose and when B held him he is moved to sudden and violent and caused B’s death.
Here, provocation was given by a thing done in the exercise of private defence so A cannot claim for culpable homicide. The question is based on illustration (e) of Exception-1 of section 300 IPC.
[Rajasthan Judicial Service (Mains) Examination, 2012]
Ans. A has committed the offence under section 317 of IPC which provides that:
Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Thus, A is liable for the imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Q.17. A was already undergoing imprisonment. B, the jail doctor administered enema to A against the will of A. Hence A was to be confined in the cell. The doctor was prosecuted for wrongful confinement.
Illustrate with provisions of law and decided cases whether the doctor committed the said offence.
[Tamilnadu APP Examination, 2012]
Ans. Yes, B would be guilty of wrongful confinement defined under section 340 of IPC. Section 340 IPC mentions as:
Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said “wrongfully to confine” that person.
This question is based on the case Baistab Charan Shaha (1902) 30 Cal 95 where the Court held that the doctor was liable for wrongful confinement.
Q.18. A, B and C with a previous meeting of mind plans to beat up X. While X is being assaulted, his daughter intervenes who is molested by C. While retreating from X’s house, B pick up a watch. For what offences A, B and C are liable.
[Tripura Judicial Service (Grade-I) Written Examination, 2014]
Ans. A, B and C are guilty of beating X (hurt or grievous hurt) according to the nature of bodily harm/injury). As the offence was committed in furtherance of their common intention, this offence will be read with section 34 IPC. C and B are individually liable for the offence under section 354 IPC and section 379 IPC respectively.
Q.19. Z is standing in the doorway of his house. A forces a passage by knocking A down and entered into the house and insulted Z’s wife, who was sitting inside the house. What offence has A committed?
[Tripura Judicial Service (Grade-III) Examination, 2009]
Ans. A has committed the offence of hurt, house trespass and outraging modesty of woman under Indian Penal Code, 1860. Hurt is defined in section 319 IPC, house trespass is defined in section 442 IPC and section 354 IPC deals with outraging modesty of woman.
Q.20. A, a police officer slapped on the posterior of a lady officer in the presence of elite persons. On being prosecuted, A took the defence of “de minimis non curat lex”. Will A succeed?
[Maharashtra AD J Examination, 2011]
Ans. No. The maxim ‘de minimis non curat lex”, means the law takes no account of trifles, is not relevant in this problem because the Act of Police Officer is covered under section 354 of IPC which talks about offence regarding outraging modesty of women, Section 354 says that whoever uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty, will be held responsible under this section.
The problem is like the fact of Mrs. Rupan Deol Bajaj and another v. Kanwar Pal Singh Gill and another decided by Supreme Court of India on 12 October, 1995.
Q.21. What offence, if any, has been committed in the following cases-
(a) A, a police officer, tortures B to induce him to point out where stolen property is deposited.
(c) A incites a dog to spring upon Z without Z’s consent with intention to cause annoyance to Z.
[West Bengal Judicial (Mains) Examination, 2015]
Ans.
(a) A is guilty of an offence under section 330 IPC which deals with voluntarily causing hurt to extort confession, or to compel restoration of properly.
(b) The surgeon has not committed any offence. His act is protected under section 93 IPC which says that no communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person.
(c) A has caused criminal force against Z under section 350 IPC which says 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.
(d) A has committed the offence of forgery provided under section 464 IPC which deals with making a false document.
Q.22. Explain trafficking in humans.
[Uttarakhand Civil Judge (J.D.) Mains Examination, 2016]
Ans. Trafficking in human beings is not a new phenomenon. Women, children and men have been captured, bought and sold in market places for centuries. Human trafficking is one of the most lucrative criminal activities.
Estimates of the United Nations state that 1 to 4 million people are trafficked worldwide each year. It is one of the most tragic human rights issues. It splinters families, distorts global markets, undermines the rule of law, and spurs other transnational criminal activity.
It threatens public safety and national security. Human trafficking is a crime that exploits women, children and men for numerous purposes including forced labour and sex. There are many forms of trafficking like-trafficking for forced labour, trafficking in women for sexual exploitation, commercial sexual exploitation of children in tourism, trafficking for tissue, cells and organs, people smuggling etc.
The problem may be much more grave than what has been reported because of the reason that in human trafficking, most of the matters have not yet been properly taken care either by the parents because of their illiteracy or lack of their means. To aware the common people regarding human trafficking, World Day against Trafficking in Persons is celebrated every year on 30 July.
Trafficking in human beings or persons is prohibited under the Constitution of India under
Article 23 (1). The Immoral Traffic (Prevention) Act, 1956 is the premier legislation for prevention of trafficking for commercial sexual exploitation.
Criminal Law (amendment) Act, 2013 in sections 370 and 370A has provided comprehensive measures to counter the menace of human trafficking including trafficking of children for exploitation in any form including physical exploitation or any form of sexual exploitation, slavery, servitude, or the forced removal of organs.
Further, Protection of Children from Sexual offences Act, 2012, which has come into effect from 14th November, 2012 is a special law to protect children from sexual abuse and exploitation. It provides precise definitions for different forms of sexual abuse, including penetrative and non-penetrative sexual assault, sexual harassment.
There are other specific legislations enacted relating to trafficking in women and children Prohibition of Child Marriage Act, 2006, Bonded Labour System (Abolition) Act, 1976, Child Labour (Prohibition and Regulation) Act, 1986, Transplantation of Human Organs Act, 1994, apart from specific Sections in the IPC, e.g. Sections 372 and 373 dealing with selling and buying of girls for the purpose of prostitution.
A Memorandum of Understanding between India and Bangladesh on Bi-lateral Cooperation for Prevention of Human Trafficking in Women and Children, Rescue, Recovery, Repatriation and Re-integration of Victims of Trafficking was signed in June, 2015.
Q.23. A, residing in Guwahati, is agent of B, residing at Delhi. There is an implied contract between A and B that all sums remitted by B to A shall be invested by A, according to B’s direction. B remits Rs. 1,00,000/- to A, with direction to A to invest the same in C’s company. A disobeyed the direction and employed the money in his own business and for his own benefit. Whether A has committed any offence punishable under IPC?
[Assam Judicial Service (Grade-III) Main Examination, 2012]
Ans. Yes, A has committed criminal breach of trust defined under section 405 of IPC as under-
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.
Jharkhand High Court on 17 July 2013 in the case of Adi Burjorji Godrej and others v. State of Jharkhand and another said that the following ingredients should be there for constituting the offence under Section 405 of the Indian Penal Code:
(a) A person should have been entrusted with property or entrusted with dominion over property;
(b) That person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so;
(c) That such misappropriation, conversion, use or disposal should be in violation of any direction of laws prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
As it is clear from the question that A has not complied with the directions of B and dishonestly misappropriated the property entrusted to him, hence A has committed criminal breach of trust.
The question is based on illustration (c) attached with section 405 IPC. Criminal breach of trust is punishable in section 406 IPC with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Q.24. T, knowing that his property is about to be taken in execution in order to satisfy a debt due from him to C, destroys the property with the intention of thereby preventing C from obtaining satisfaction of the debt. Has T committed any offence?
[Kerala Judicial Test (Higher) Examination, 2016]
Ans. Yes, T has committed the offence of mischief which is defined in section 425 IPC as under-
Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”.
The first part of the section sets out the mens rea or the guilty mind, which is the intention or the knowledge of likelihood of causing wrongful loss or damage to the public or to any person. The second part of the section pertains to the actus reus, that is to say, the criminal act, which consists in causing destruction to any property or any such change in any property or in the situation thereof and destroys or diminishes its value or utility or affects it injuriously.
The question is based on illustration (d) of section 425 IPC.
Q.25. A, without Z’s authority, affixes Z’s seal to a document purporting to be a conveyance of an estate from Z to A, with intention of selling the estate to B and thereby obtaining from B the purchase money. What is the offence, if any, committed by A?
[Tripura Judicial Service (Grade-III) Examination, 2009]
Ans. A has committed forgery under section 463 of Indian Penal Code, 1860. Sec. 463 provides that whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
Q.26. B was the then State Secretary of a party named C. B had published in a weekly D an article against the complainant A, who happened to be the son of the State’s Chief Minister X. One of the said alleged statements was that A was not only a leader of the smugglers but that he was also responsible for a large number of crimes in the State. It also added that because the culprit happens to be Chief Minister’s son, the cases are also shelved up. Discuss the offence, if any, committed against A.
[Tamil Nadu APP Examination, 2011]
Ans. This problem is covered under Exception III of Section 499 of IPC which says that it is not defamation to express in good faith any opinion whatsoever respecting the conduct of any person touching any public question, and respecting his character so far as his character appears in that conduct, and no further. Hence, B is not responsible for defamation of Mr. A.
Q.27. Mr. X published in his newspaper an account of an outrage on a woman alleged to have perpetrated by two constables within the jurisdiction of some Thana in which four constables were stationed. The charge was not made against any particular and identifiable constables. Was X guilty of defamation?
[Main Examination for Executive etc. Officer Lok Sabha Secretariat, 2010]
Ans. No, X is not guilty of defamation as the constables are not identifiable. As defamation is an injury to the prestige of a person, if they are not identifiable, how their prestige may be injured.
Sec. 499 IPC mentions that:
Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Thus, it is clear from the above discussion that X has not committed defamation.
Q.28. The employees of the State owned Transport Corporation protesting against the decision of the State to privatise the bus routes, took out a procession. During the procession, they used vulgar and indecent words against the Transport Minister. The employees were prosecuted for defamation.
Illustrate with provisions of law and decided cases whether the employees committed the said offence.
[Tamil Nadu APP Examination, 2012]
Ans. Yes. Employees would be held responsible for defamation as they have used vulgar and indecent words against the Transport Minister. Defamation is defined in section 499 IPC as under-
Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. As the employees used vulgar and indecent words, they committed defamation.
Q.29. Discuss the rules relating to communication of offer and acceptance.
[Tripura Judicial Service (Grade-III) Written Examination, 2010]
Ans. Section 3 of the Indian Contract Act 1872 provides that ‘the communication of proposals the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking by which he intends to communicate such proposal acceptance or revocation, or which, has the effect of communicating it.’
Section 4 further provides that communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. The communication of an acceptance is complete, as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor and as against the acceptor, the communication of acceptance when it comes to the, knowledge, of the proposer.
[Jammu & Kashmir Civil Service Examination, 2010]
A teaches his parrot to recite an offer and then sends his parrot to B. The bird repeats the recitation. Is there any valid offer?
[West Bengal Judicial Service (Written) Examination, 2016]
Ans. No, there is no offer. Section 2 (a) of the Contract Act says that ‘when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal.’ As mentioned above, offer may be made by only person which includes natural and legal person but it does not include bird or animal.
So, where the offer is made by a bird it cannot be accepted for others. Hence, there is no question of agreement.
Q.31. What is the law in India about past consideration?
[West Bengal Judicial Service (Written) Examination, 2017]
Is past consideration not a good consideration? Distinguish between executed consideration and executory consideration.
[Tripura Judicial Service (Grade-III) Written Examination, 2010]
Ans. Consideration is an essential element of contract and has been defined under Section 2(d) of the Indian Contract Act 1872. It provides that 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.
Depending on factor of time, consideration can be of three types, “past consideration”, present consideration or “executed consideration”, and future consideration or “executory consideration.” The definition in Section 2(d) contemplates all the three kind of considerations and accordingly in India, even the past consideration is valid and good consideration and a contract on the basis thereof, shall be valid contract.
The past consideration is recognised in section 25 of the Contract Act as past voluntary services. However, in English law a past consideration is not a good consideration and accordingly a contract on that basis is not valid.
If one party makes a promise in exchange for an act by the other party, when that act is completed, it is executed consideration. It is basically present consideration. Illustration- “A offers Rs. 50 reward for the return of her lost handbag, if B finds the bag and returns it, B’s consideration is executed.”
Whereas consideration is executory when there is an exchange of promises to perform acts in the future. For example- A promises to deliver an article to B at some future date and B promises to pay A for the article when he receives the shipment. If A does not deliver the widgets to B, B can sue A for breach of contract.
Q.32. A promises to give his watch to B and a consideration of Rs. 2000 for the same is given to A by M and not by B. Is it a valid contract?
[West Bengal Judicial Service (Written) Examination, 2016]
Ans. Yes it is a valid contract. Section 2 (d) of the Indian Contract Act defines the term consideration as-
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
It is clear from the definition of consideration as mentioned above that the consideration may be given by promisee or any other person.
[Assam Judicial Service (Grade-III) Written Examination, 2011]
Ans. Every contract is made for some specific purpose. The parties of the contract are under duty to discharge their contractual obligations as per terms and conditions of contract. Section 37 of the Contract Act mentions that.
Obligation of Parties to Contracts:
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. Promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract.
Therefore, every party of the contract has to perform, offer to perform his contractual obligations unless the performance is excused under the Law. Performance may be- actual performance or attempted performance.
Generally, the parties of the contract have to discharge their contractual obligations but there are some circumstances also where the others also can perform obligations like representative of the parties. For instance- A promises to deliver goods to B on a certain day on payment of Rs. 1,000. A dies before that day. A’s representatives are bound to deliver the goods to B, and B is bound to pay the Rs. 1,000 to A’s representatives.
But if the contractual obligation is of such nature that only the party concerned has to discharge that duty, representative cannot be asked for that purpose. Like- A promises to paint a picture for B by a certain day, at a certain price. A dies before the day. The contract cannot be enforced either by A’s representatives or by B.
When one party of contract offers to perform his contractual obligations, it is called tender of performance, and refused by other party, the contract is treated as repudiated and such repudiation discharges the tendering party from further duty under the contract as it has been provided in section 38 of the Contract Act-
Effect of refusal to accept offer of performance- Where a promisor has made an offer of performance to the promisee, and the offer has not been accepted, the promisor is not responsible for nonperformance, nor does he thereby lose his rights under the contract.
In other words, if the tender of performance is refused by the other party, the promisor is excused from performance and it entitles him to sue the promisee for the breach of contract.
Q.34. Discuss the circumstances in which a contract need not be performed.
[Tripura Judicial Service (Grade-III) Written Examination, 2014]
What are the contracts that need not be performed?
[Assam Judicial Service (Grade-III) Written Examination, 2013]
What are the circumstances in which a party need not perform a contract?
[Kerala Judicial Service NCA (Main) Examination, 2011]
Ans. There are some categories of contracts which need not to be performed.
These are contained in sections 62 to 67 of the Contract Act as under-
(a) When its performance become impossible (section 56)
(b) When the concerned parties agree to substitute a new contract in its place or agree to cancel or alter it (section 62).
(c) When the promises releases from performance either wholly or in part or extends the time for its performance or accepts any other satisfaction in place (section 63)
(d) When it becomes voidable and the person at whose option it is voidable & rescinds (cancel) (Section 64)
(e) When the promisee neglects or refuses to afford the promisor reasonable facilities for its performance (section 67)
(f) When it is illegal
In Lata Construction v. Dr. Rameshchandra Ramniklal Shah, on 12 August, 1999 Supreme Court said that one of the essential requirements of ‘Novation’ as contemplated by Section 62, is that there should be complete substitution of a new contract in place of the old. It is in that situation that the original contract need not be performed.
Substitution of a new contract in place of the old contract which would have the effect of rescinding or completely altering the terms of the original contract has to be by agreement between the parties. A substituted contract should rescind or alter or extinguish the previous contract.
But if the terms of the two contracts are inconsistent and they cannot stand together, the subsequent contract cannot be said to be in substitution of the earlier contract.
Q.35. ‘A’ a tradesman, leaves goods at B’s house by mistake. ‘B’ treats the goods as his own and uses the same. Would ‘A’ have civil legal remedy against ‘B. Explain giving reasons.
[Legal Officer, RBI Examination, 2012]
Ans. Yes, A has remedy under section 71 of the Indian Contract Act, 1872. This section says that ‘a person who finds goods belonging to another, and takes them into his custody; is subject to the same responsibility as a bailee’. The finder of goods is bound to exercise reasonable care in preserving the goods found. He cannot appropriate the goods for himself.
Q.36. Is breach of promise to marry an actionable wrong? Can compensation be awarded to such wrong?
[Uttarakhand Higher Judicial Service Mains Examination, 2008]
Ans. As a general rule, “a breach of promise to marry per se is not an actionable wrong” as decided in Baksh v. Court of Appeals, G. R. No. 9733 6, February 19, 1993. In De Jesus v. Syquia, (1933)58 Phil 866 also the court held that the existing rule is that a breach of promise to marry per se is not an actionable wrong.
But, in Indian law the situation is different. The statement of law is contained in Dutt on Contract under Section 73 as: An express repudiation of a contract to many may be treated as a breach and gives rise to an action for damages at once.
Giving such notice at the earliest moment tends to mitigate, while delay in giving it necessarily aggravates, the injury to the party wronged. In case of seduction under a promise to marry the plaintiff and subsequent refusal to marry, the plaintiff is entitled not merely to the loss sustained by not becoming the wife of the defendant but to compensation for aggravation of that loss by reason of her prospects of marrying being materially ascended.
A suit lies to claim damages for breach of promise of marriage. Bombay High Court in Rose Fernandez v. Joseph Gonsalves, 85 Ind Cas 587 held that the breach of a promise of marriage has much more serious consequences in India in the case of girls, inasmuch as the chances of the girl making another good match are seriously affected.
Gujarat High Court in Miss Prema Koragokar v. Mustak Ahmed, AIR 1987 Gujarat 106 the learned Subordinate Judge held that breach of promise of marriage is actionable and held that towards the mental agony sustained by the plaintiff on account of the breach of promise of marriage and on account of the special damages sustained by the plaintiff, the plaintiff is entitled for a sum of Rs. 5,000/- and hence decreed the suit for that amount.
In Laxminarayan v. Sumitra Bai, AIR 1995 MP 86 Madhya Pradesh High Court said that where under the garb of promise to marry, the girl is lured and subjected to physical criminal conversation, resulting in pregnancy, the extent of damages will differ, on various counts, such as: physical pain, indignity, chances of marriage becoming dim, social stigma.
In Abdul Razak v. Mahomed Huisen, (1917) 19 BOMLR 164 a Muslim father of the bridegroom sued the father of the bride for damages for breach of his contract to give his daughter in marriage. That was a case of a contract between the two parents, and Mr. Justice Kemp decreed the suit but held that the measure of damage must be based on the damage suffered by the plaintiff’s father, and not on the damage suffered by the prospective bridegroom in the loss of a wife.
Q.37. Write a short note on applicability of “Malfeasance”, “Misfeasance” and “Non-Feasance”.
[Manipur Judicial Service (Grade-III) Written Examination, 2014]
Ans. Black’s Law Dictionary mentions meaning of malfeasance as ‘the commission of some act which is positively unlawful; the doing of an act which is wholly wrongful and unlawful; the doing of an act which person ought not to do at all or the unjust performance of some act which the party had no right or which he had contracted not to do. Comprehensive term including any wrongful conduct that affects, interrupts or interferes with the performance of official duties.’
Non-feasance is non-performance of some act which ought to be performed, omission to perform a required duty at all, or total neglect of duty. The expressions ‘malfeasance’, ‘misfeasance’ and ‘nonfeasance’ would, therefore, apply in those limited cases where the State or its officers are liable not only for breach of care and duty but it must be activated (sic actuated) with malice or bad faith.
Q.38. The police seized some gold from a person on the suspicion that it was contraband gold. The gold was kept in the police station but was stolen by a police constable who then escaped to Pakistan. Later on investigation it was revealed that the gold belonged to the person from whom it was seized. He approached the Court for remedy claiming compensation from the state and the state took a defence that it is not liable because of sovereign immunity. Advise.
[Kerala Judicial Test (Higher) Examination, 2016]
Ans. The question is based on the fact of Kasturi Lai Ralia Ram Jain v. State of U.P, 1965 SCR (1) 375 where the Supreme Court of India held the power to arrest a person, to search him, to seize property found with him, are powers conferred on specified officers by statute and are powers which could be properly characterised as sovereign powers.
Therefore, though the negligent act was committed by the employees of the respondent-State during the course of their employment, the claim against the State could not be sustained, because, the employment in question was of the category which could claim the special characteristic of sovereign power.
But, in current scenario the State is responsible for the acts of its employees. After N. Nagendra Rao & Co v. State of A. P., 1994 SCC (6) 205 the scenario has been changed where the Court held that the Court shall be failing in its duty if it is not brought to the attention of the appropriate authority that for more than hundred years, the law of vicarious liability of the State for negligence of its officers has been swinging from one direction to other. Result of all this has been uncertainty of law, multiplication of litigation, waste of money of common man and energy and time of the courts.
Q.39. On the eve of Diwali while letting off fireworks, A negligently let a lighted squib ball (a firecracker) down in the crowded street. The fiery explosive burst suddenly with a loud noise near B. However, B escaped with minor injuries but the fear of narrow escape operated so strongly on his mind that he suffered anxiety neurosis requiring hospitalization. C a small child playing in the street was seriously injured and immediately removed to the nearby hospital where he was declared brought dead. A bystander informed M and mother of C about the accident. M rushed to the hospital where she saw the body of C. as a result of what she saw, she suffered severe and persisting psychiatric illness. B and M sue A for damages for nervous shock. Briefly discuss the liability, if any, of A towards B and M.
[Assam Judicial Service (Grade-III) Written Examination, 2011]
Ans. A is liable only for B and not for M as the psychiatric illness caused to M by A’s act is very remote. Anyone is liable only for those wrongs which are not remote. On this point Duliu v. White and Sons, [1901] 2 KB 669 is a landmark case in which the claimant was pregnant and behind the bar in her husband’s public house.
A horse and cart crashed into the pub. The claimant was not physically injured but feared for her safety and suffered shock. She gave birth prematurely nine days later and the child suffered developmental problems. Kennedy J said that if impact be not necessary, and if, as must be assumed here, the fear is proved to have naturally and directly produced physical effects, so that the ill results of the negligence which caused the fear are as measurable in damages as the same results would be if they arose from an actual impact, why should not an action for those damages lie just as well as it lies where there has been an actual impact?
It is not, however, to be taken that in my view every nervous shock occasioned by negligence and producing physical injury to the sufferer gives a cause of action. There is, I am inclined to think, at least one limitation. The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself.
Q.40. The bridegroom and his father refuse to take the bride to their home after marriage in full gaze of the guests. Is it the tort of defamation? Can damages be awarded for loss of reputation?
[West Bengal Judicial Service (Written) Examination, 2015]
Ans. Yes, it is tort of defamation and damages can be awarded for loss of reputation. The question is based on the facts of Noor Mohammad v. Mohammad Jiajddin, 1991 (0) MPLJ 503 decided by Hon’ble Madhya Pradesh High Court.
The Court observed that the act and conduct of the two defendants was wrongful by which the plaintiff and her daughter were both harmed materially as also mentally. They lost reputation which in a civilised society is regarded as man’s pride possession partaking the character of property right; plaintiff has directly suffered a continuing pecuniary loss being saddled with the burden of maintaining his marriage daughter as he could not allow her to starve for her default in taking legal action against her husband to claim maintenance cost from him.
Most modern systems of jurisprudence, as observed by Paton, lay emphasis on father’s duty to consider needs of the child and his being “forced (by law) to contribute to the upkeep of the child”. Principle 6 of United Nations Declaration of Rights of the Child, 1959 emphasises care and “responsibility of his parents” in regard to its “moral and material security.”