Expected questions on Constitutional Law of India, Indian Penal Code, Law of Contract and Law of Torts for OJS Mains Exam [Odisha Judicial Services Main Exam]
Right to information is a fundamental right. Explain.
Ans. The statement is question is taken from Secretary, Ministry of Information & Broadcasting, Govt, of India and others v. Cricket Association of Bengal and another,  2 SCC 161 wherein the Court, after citing Article 10 of the European Convention on Human Rights, went on to state that the freedom of speech and expression includes right to acquire information and to disseminate it.
Freedom of speech and expression is necessary, for self-expression which is an important means of free conscience and self-fulfillment. It enables people to contribute to debates on social and moral issues. It is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate.
It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore, includes right to communicate through any media that is available whether print or electronic or audio- visual such as advertisement, movie, article, speech etc.
The fact that the right to information is included in the Constitutional guarantees of freedom of speech and expression has been recognised by Supreme Court decisions challenging governmental control over newsprint and bans on the distribution of newspapers. Liberty of thought is the basis of freedom speech and expression under Article 19(l)(a), which is an essential component of a democratic governance.
As the information will be at the genesis of thought and expression, the right to information has to be an invisible integral part of the right of free speech. ‘The right to know,’ it was observed is derived from the concept of freedom of speech, though not absolute is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security”.
It was said very aptly that in a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries.
In Secretary, Ministry of I & B v. Cricket Association of Bengal, (1995) 2 SCC 161 the court said that the right to impart and receive information is a species of the right of freedom of speech and expression guaranteed by Article 19(l)(a) of the Constitution. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose.
The information is currency that every citizen requires to participate in the life and governance of the society. In any democratic polity, greater the access, greater will be the responsiveness, and greater the restrictions, greater the feeling of powerlessness and alienation.
In true sense, communication and information is the life blood of any organization. Devoid of free flow of information any organization will not be able to survive. Recently, there has been a lot of emphasis globally towards recognition of the Right to Information by countries, inter-governmental organizations, civil societies and the people.
The RTI has been universally recognized as a fundamental human right which upholds the inherent respect and dignity of all human beings. This right is based on the potentiality and role of the individual in the process of nation building. It recognizes the role of each and every citizen in this respect and accordingly this right has been vested in each and every citizen of the country. As Henry Clay stated, “Government is a trust and officers of the government are trustees and both the trust and trustees are created for the benefit of the people.”
According to the above quotation people in the democracy are the beneficiary of self-created trust in the form of democratic government. Thus, people have always wanted a transparency in the working of trust created by them.
Q.2. What is the procedure of impeachment of the President?
[Assam Judicial Service (Grade-III) Written Examination, 2015]
Ans. The founding fathers in their wisdom provided in Article 61 of the Constitution for the removal of the President from office by impeachment which is as under:
61. Procedure for Impeachment of the President:
(1) When a President is to be impeached for violation of the Constitution, the charge shall be preferred by either House of Parliament.
(2) No such charge shall be preferred unless.
(a) The proposal to prefer such charge is contained in a resolution which has been moved after at least fourteen days’ notice in writing signed by not less than one- fourth of the total number of members of the House has been given of their intention to move the resolution, and
(b) Such resolution has been passed by a majority of not less than two-thirds of the total membership of the House.
(3) When a charge has been so preferred by either House of Parliament, the other House shall investigate the charge or cause the charge to be investigated and the President shall have the right to appear and to be represented as such investigation.
(4) If as a result of the investigation a resolution is passed by a majority of not less than two-thirds of the total membership of the House by which the charge was investigated or cause to be investigated, declaring that the charge preferred against the President has been sustained, such resolution shall have the effect of removing the President from his office as from the date on which the resolution is so passed.
It is evident from Article 61 that the President can be removed from office by a process of impeachment for ‘violation of the Constitution’. However, the Constitution does not define the meaning of the phrase ‘violation of the Constitution’. The impeachment charges can be initiated by either House of Parliament.
These charges should be signed by one-fourth members of the House (that framed the charges), and a 14 days’ notice should be given to the President. After the impeachment resolution is passed by a majority of two-thirds of the total membership of that House, it is sent to the other House, which should investigate the charges.
The President has the right to appear and to be represented at such investigation. If the other House also sustains the charges and passes the impeachment resolution by a majority of two-thirds of the total membership, then the President stands removed from his office from the date on which the Bill is so passed.
The impeachment process is a quasi-judicial procedure. In this context, it is important to note that the nominated members of either House of Parliament can participate in the impeachment of the President though they do not participate in his election.
Further, the elected members of the legislative assemblies of states and the Union Territories of Delhi and Puducherry do not participate in the impeachment of the President though they participate in his election.
In India, till date, no President has been impeached.
[Assam Judicial Service (Grade-III) Main Examination, 2011]
Ans. Section 29-A of IPC defines electronic record as: The words “electronic record” shall have the meaning assigned to them in clause (t) of sub-section (1) of section 2 of the Information Technology Act, 2000. According to section 2 (1) (t) of the Information Technology Act, 2000 “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.
The Act recognizes electronic record in a wide sense thereby including electronic data in any form such as videos or voice messages.
Further, in section 4, the IT Act 2000 provides:
Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is-
(a) Rendered made available in an electronic form; and
(b) Accessible so as to be usable for a subsequent reference.
The Indian Evidence Act, 1872 has widely dealt with the evidentiary value of the electronic records. Section 3 of Indian Evidence Act defines Evidence as the documents which are being submitted in the court of Law. These evidences are basically known as “digital evidence”, and electronic devices come under this classification.
Thus the section clarifies that documentary evidence can be in the form of electronic record and stands at par with conventional form of documents. The evidentiary value of electronic records is widely discussed under section 65A and 65B of the Evidence Act, 1872.
The sections provide that if the four conditions listed are satisfied any information contained in an electronic record which is printed on paper, stored, recorded or copied in an optical or magnetic media, produced by a computer is deemed to be a document and becomes admissible in proceedings without further proof or production of the original, as evidence of any contacts of the original or any facts stated therein, which direct evidence would be admissible.
The four conditions referred to above are:
(1) The computer output containing such information should have been produced by the computer during the period when the computer was used regularly to store or process information for the purpose of any activities regularly carried on during that period by the person having lawful control over the use of the computer.
(2) During such period, information of the kind contained in the electronic record was regularly fed into the computer in the ordinary course of such activities.
(3) Throughout the material part of such period, the computer must have been operating properly. In case the computer was not properly operating during such period, it must be shown that this did not affect the electronic record or the accuracy of the contents.
(4) The information contained in the electronic record should be such as reproduces or is derived from such information fed into the computer in the ordinary course of such activities
It is further provided that where in any proceedings, evidence of an electronic record is to be given, a certificate containing the particulars prescribed by 65B of the Act, and signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities would be sufficient evidence of the matters stated in the certificate.
[Advocates-on-Record Examination, 2011]
Ans. Article 142, clause 1 of the Constitution of India provides that, “the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.”
The mentioned power of the Supreme Court of India is often referred to as its ‘extraordinary power’; resting solely on one criterion- the need to do complete justice. The expression ’cause’ or ‘matter’ includes any proceeding pending in the Court and would cover almost every kind of proceeding in the Court, including civil or criminal; or appellate or original.
The powers in exercise are circumscribed only by two conditions. “Firstly, that it can be exercised only when the Supreme Court otherwise exercises its jurisdictions, and secondly, that the order which the Supreme Court passes must be necessary for doing complete justice in the cause or matter pending before it.” However, “the power should not be exercised frequently, but sparingly.
In Zahira Habibullah Sheikh v. State of Gujarat (2004) 5 SCC 353, power under this Article was invoked to transfer a criminal trial from one State to another within the jurisdiction of Supreme Court. Similarly, direction was issued to transfer prisoners from one prison to another in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan alia Pappu Yadav (2005) AIR SC 972.
This power was also invoked under this Article in the case of Vijay Shekhar v. Union of India (2004) 4 SCC 666 to quash criminal proceedings filed against eminent persons which was found to be false, and a product of fraud and total abuse of process of court.
Q.5. Can Parliament amend Part III of the Constitution of India relating to Fundamental Rights? Discuss.
[Uttar Pradesh Civil Judge (J.D.) Mains Examination, 2016]
Ans. Yes, the Parliament has power to amend the Constitution of India relating to fundamental rights till the time it does not damage, alter or abrogate its basic structure as held by the Supreme Court of India in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. The amending powers of the Parliament are provided in Article 368 of the constitution.
It does not put any restrictions on the Parliament regarding which portion of the Constitution cannot be amended. Restrictions originate from Article 13 which does not allow Parliament to make such laws which are inconsistent with the provisions of fundamental rights. However, this issue has been well settled in above mentioned case by holding that the Parliament can amend any part of the Constitution apart from basic structure.
Q.6. A sent an SMS to B whose bitch has given birth to several puppies- “will you sell me one pup”. B replied the SMS minimum price is. Rs. 5000. A sent another SMS to B- “I agree to buy one pup for Rs. 5000 but send me the pedigrees certificate first”. B did not respond. A came to know that B sold all the puppies at a higher price. A intends to sue B for breach of contract. Advise as to the rights and liabilities.
[Bihar District Judge (Entry Level) Competitive Mains Examination, 2013]
Ans. There is no breach of contract as there is no contract at all. At the first place when A has asked whether A would sell him one pup but B did not say anything rather he said that the minimum price is Rs. 5000. Second time when A asked for pedigree certificate, but B did not respond it means he did not accept the offer made by A.
The problem is like the fact of Harvey v. Facey (1893) where their Lordships were of opinion that the mere statement of the lowest price at which the vendor would sell contains no implied contract to sell at the price to the person making the inquiry.
Q.7. Write note on contract and persons who are competent to contract.
[Goa Judicial Service (Junior Division) Examination, 2010]
Who are persons “not competent to contract”? Write a note.
[Manipur Judicial Service (Grade-III) Written Examination, 2015]
Ans. Section 10 of the Indian Contract Act 1872 says that all agreements are contracts if they are made by the free consent of parties competent to contract or a lawful consideration and with a lawful object and are not hereby expressly declared to be void.
Further Section 11 says that who are competent to contract and it explains that every person is competent to contract who is of the age of majority according to the law to which he is subject and who is of sound mind and is not disqualified from contracting by any law to which he is subject.
Privy Council in a leading case of Mohiri Bibi v. Dharmodas Ghose (1903) held that contract made by a minor is void-ab-initio.
Q.8. A laundry receipt contained a condition that the customer would be entitled to claim only 15% of the market price or value of the article in case of loss. The plaintiff’s new sari was lost. Decide the liability of laundry owner.
[Uttarakhand Civil Judge (J.D.) Mains Examination, 2016]
Ans. The laundry owner is liable to compensate whole loss and not only 15% of the value of sari. This matter is related with unreasonable terms of standard form contract. Like this, there is a case viz. Lilly White v. Mannuswami, AIR 1966 Mad 13 wherein a laundry receipt contained a condition that the customer would be entitled to claim only fifteen per cent of the market price or value of the article in case of loss.
The plaintiff’s new sari was lost. The term would place a premium upon dishonesty inasmuch as it would enable the cleaner to purchase new garments at 15% of their price, and that would not be in public interest.
[West Bengal Judicial Service (Written) Examination, 2015]
Ans. As every contract is made for some specific purpose, it is the primary duty of each contracting party to either perform or offer to perform its promise. The essential ingredients of offer of performance are-
i. It should be unconditional.
ii. It must be made at reasonable time and place.
iii. As partial performance is of no effect, it must be for entire contractual obligation.
iv. Promisee must be given reasonable opportunity to inspect the goods.
v. It must be made in good faith, and in such manner as is most likely, under the circumstances, to benefit the creditor.
vi. It is of no effect if the person making it is not able and willing to perform according to the offer.
[Uttar Pradesh Civil Judge (J.D.) Mains Examination, 2016]
[Tripura Judicial Service (Grade-III) Written Examination, 2015]
[Uttar Pradesh Civil Judge (J.D.) Mains Examination, 2003]
[Bihar Judicial Service (Mains) Examination, 2000]
Ans. There can be no doubt that a breach of contract may take place before the time fixed for performance of the contract has arrived. This is called anticipatory breach of contract which takes place when any party of the contract shows his final decision not to perform his contractual obligations before the performance is due.
Sec. 39 deals with anticipatory breach of contract which says that when a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.
For example- If A promises to marry B after his father’s death. But in lifetime of his father, he marries with C. It is anticipatory breach of contract as again A cannot marry with others so he has breached the contract before the intended time. If B chooses, she can claim for compensation.
In simple term, anticipatory breach of contract does not discharge the contract but it may be if the aggrieved party so chooses.
In Frost v. Knight, L.R. 7 Ex. 111 A promised to marry B as soon as his father should die.
During the father’s life time,
A absolutely refused to marry B. Although the time for performance had not arrived, B was held entitled to sue for breach of promise.
In Hochster v De La Tour, (1853) 2 E&B 678 the claimant agreed to be a courier for the defendant for 3 months starting on 1st June 1852. On the 11th May the defendant wrote to the claimant stating he no longer wanted his services and refused to pay compensation. The claimant obtained a service contract elsewhere but this was not to start until 4th July. The claimant brought an action on 22nd May for breach of contract.
The defendant argued that there was no breach of contract on 22nd May as the contract was not due to start until 1st of June. The court held that where one party communicates his intention not to perform the contract, the innocent party need not wait until the breach has occurred before bringing their claim. They may sue immediately or they can choose to continue with the contract and wait for the breach to occur.
In McCloskey & Co. v. Minweld Steel Co., 220 F.2d 101, 1955 U.S. App. plaintiff sued defendant for anticipatory breach of three construction contracts when defendant indicated that it was having difficulty procuring materials. The court held that in order for a party to recover on a claim of anticipatory breach of contract, the other party must have unequivocally refused to perform, or have made clear and affirmative statements indicating that he is unable to perform.
Supreme Court of India in Jawaharlal Wadhwa and another v. Haripada Chakroberty, 1988 SCR Supl. (3)513held that it is settled in law that where a party to a contract commits an anticipatory breach of the contract, the other party to the contract may treat the breach as putting an end to the contract and sue for damages.
Q.11. A found a Purse in a Cinema hall. He deposited the Purse with the manager of the hall so that the true owner can claim it back. However, no one claimed the Purse. A wants the Purse. Can he succeed?
[West Bengal Judicial Service (Written) Examination, 2016]
Ans. Yes, A will succeed. The question is related with section 160 of the Indian Contract Act, 1872. The manager of the hall is in the position of a bailee. Section 160 provides that it is the duty of the bailee to return or deliver the goods bailed without demand, as soon as the time for which they were bailed has expired or the purpose for which they were bailed has been accomplished.
If the purpose for which goods bailed is not accomplished, the bailee is liable to return the goods to the bailor.
Supreme Court of India in Governor General in Council v. Musaddi Lai, 1961 SCR (3) 647 held that by sections 160 and 161 of the Indian Contract Act, the bailee is under an obligation to return or deliver according to the bailor’s direction the goods bailed as soon as the time for which the good were bailed has expired or the purpose for which the goods were bailed has been accomplished and if on account of default of the bailee the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods.
Q.12. Write short note on doctrine of Ratification.
[Assam Judicial Service (Grade-III) Written Examination, 2015] Explain the “Doctrine of Ratification”.
What are the acts that cannot be ratified?
[Assam Judicial Service (Grade-III) Written Examination, 2013]
What is ratification and what is its effect?
[Manipur Judicial Service (Grade-III) Written Examination, 2014-15]
Ans. Sec. 196 of the Contract Act mentions that where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifies them, the same effects will follow as if they had been performed by his authority.
In simple terms, the principal can accept the work which was done without his knowledge by another person for him. If he accepts, it is called agency by ratification. Ratification may be expressed or may be implied in the conduct of the person on whose behalf the acts are done. But a valid ratification cannot be made by a person whose knowledge of the facts of the case is materially defective.
For Example- K, without S’s authority, lends S’s money to T. Afterwards S accepts interest on the money from T. S’s conduct implies a ratification of the loan.
An act done by one person on behalf of another, without such other person’s authority, which, if done with authority, would have the effect of subjecting a third person to damages, or of terminating any right or interest of a third person, cannot, by ratification, be made to have such effect.
Q.13. A customer of the bank gives an amount to the bank employee in his capacity as a friend, for being deposited in the account of the customer, without obtaining any receipt for the same. The bank employee misappropriates the amount for his personal gain. A suit for damages is filed by customer against the bank and employee of bank. Discuss the responsibility of bank, if any, and the principle on which your answer is based.
[Assam Judicial Service (Grade-III) Written Examination, 2013]
Ans. Bank is not liable for the acts of its employee as the employee did not receive money in course of employment rather it was in his personal capacity. The question is based on the case of State Bank of India v. Shyama Devi, 1978 SCR (3)1009 wherein the court held that the legal principle which governs the vicarious liability of an employer for the loss caused to a customer through the misdemeanour or negligence of an employee are-
(a) The employer is not liable for the act of the servant if the cause of the loss or damage arose without his actual fault or privity or without the fault or neglect of his agents or servants in the course, of their employment;
(b) The damage complained of must be shown to have been caused by any wrongful act of his servant or agent done within the scope or course of the servant or agent’s employment even if the wrongful Act amounted to a crime; and
(c) A master is liable for his servants fraud perpetrated in the course of master’s business whether the fraud was for the master’s benefit or not, if it was committed by the servant in the course of his employment. There is no difference in the liability of the master for wrongs whether for fraud or any other wrong committed by a servant in the course of his employment and it is a question of fact in each case whether it was committed in the course of the employment.
Q.14. A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint for Z’s benefit, performs that operation on Z. Z dies in consequence. What offence, if any, has been committed by A? Give reasons and provisions of law in support of your answers.
[Himachal Pradesh Judicial Service (Grade-III) Main Examination, 2014]
Ans. A has not committed any offence as he is protected under section 88 IPC which is given below-
88. Act not intended to cause death, done by consent in good faith for person’s benefit:
Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.
In R.P. Dhanda v. Bhurelal, 1987 CriLJ 1316 the appellant, a medical doctor, performed an eye- operation for cataract with the patient’s consent. The operation, however, resulted in loss of sight. It was held that since the doctor had acted in good faith for the benefit of the patient, he was protected under section 88 of the Code.
Q.15. A, a villager goes to police station to lodge a report. He finds that the policemen at the police station are sleeping and pay no heed to his grievances. He removes a handcuff from the police station and brings the same before the Superintendent of Police to show the state of affairs. A is prosecuted for having committed theft of handcuff. Will the prosecution succeed?
[Maharashtra AD J Examination, 2011]
Ans. Yes, the prosecution will succeed. Theft is defined in section 378 IPC as under- Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.
In question, A has removed handcuff which is movable property from the possession of policemen sleeping at the police station without his consent. Only one ingredient i.e. dishonestly is doubtful as from question it seems that the villager has not acted dishonestly. But when we analyse the definition of ‘dishonestly’, we find that there should be wrongful gain to one person or wrongful loss to another. Sec. 23 of IPC defines these terms as under-
“Wrongful gain” is gain by unlawful means of property to which the person gaining is not legally entitled.
“Wrongful loss” is the loss by unlawful means of property to which the person losing it is legally entitled.
In question, there is wrongful loss to the police department as the police department is legally entitled to have that handcuff which is removed by A.
Thus, all the essential ingredients of theft are there. Hence, A has committed theft.
[Assam Judicial Service (Grade-III) Written Examination, 2013]
Ans. Section 2 (f) of the Contract Act provides that promises, which form the consideration or part, of the consideration for each other are called reciprocal promises. In case of reciprocal promises, each party to the contract is a promisor as well as promisee.
The reciprocal promises may be classified into three categories:
(1) Mutual and independent,
(2) Mutual and dependent and
(3) Mutual and concurrent.
The rules regarding the order of performance of reciprocal promises are contained in sections 51-54 of the Contract Act.
[West Bengal Judicial Service (Written) Examination, 2015]
Ans. The word ‘revocation’ means “taking back”. Both an offer as well as an acceptance may be revoked. Section 4 of the Contract Act mentions that the communication of a revocation is complete-
i. Is against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as “to be out of the power of the person who makes it;
ii. As against the person to whom it is made, when it comes, to his knowledge.
Further, section 5 says that a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards.
Q.18. Write an essay on persons who should perform contracts.
[Kerala Judicial Service (Main) Examination, 2013]
Ans. The Indian Contract Act provides that the promise under a contract can be performed by any one of the following-
This is general rule that the promise has to be performed by the promisor where the contracts are entered into for performance of personal skills, or diligence or personal confidence, it becomes absolutely necessary that the promisor performs it himself.
Where personal consideration is not the foundation of a contract, the promisor or his representative can employ a competent person to perform it.
Generally upon the death of promisor, the legal representatives of the deceased are bound by the promise unless it is a promise for performance involving personal skill or ability of the promisor. However the liability of the legal representative is limited to the value of property inherited by him from the promisor.
The question here is whether a total stranger to a contract who is identified as a third person can perform a promise. Where a promisee accepts performance from a third party he cannot afterwards enforce it against the promisor.
Such a performance, where accepted by the promisor has the effect of discharging the promisor though he has neither authorized nor ratified the act of the third party.
Where two or more persons jointly promise, the promise must be performed jointly unless a contrary intention appears from the contract.
Where one of the joint promisors dies, the legal representative of the deceased along with the other joint promisor(s) is bound to perform the contract. Where all the joint promisors die, the legal representatives of all of them are bound to perform the promise.
In Kamal Gupta v. Bank of India AIR 2008 Delhi 51 Delhi High Court said that promise to perform an obligation under contract is not personal to the contracting party but is also binding on his representatives.
Legal representative under law is liable for the debts of their predecessor to the extent of any property inherited by them from their predecessor in interest. Legal representatives are not personally liable for the liability but the liability is to the extent of the estate of the deceased inherited by them.
Q.19. A agrees to sell his house to B for Rs.105000. Provided that on breach of contract the defaulting Party will Pay Rs. 1000 as damages to the other. B broke the contract and A resold house to C for Rs.104000. A sued B and claimed Rs. 1000. Will he succeed?
[West Bengal Judicial Service (Written) Examination, 2016]
Ans. Yes, A will succeed. The question is based on section 73 of the Indian Contract Act, 1872 which mentions that when a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.
Compensation for failure to discharge obligation resembling those created by contract.- When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.
Explanation- In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account.
Bombay High Court in K.G. Hiranandani v. Bharat Barrel and Drum Mfg. Co., 1969 LabIC 1324 held that the substantive portion of that section lays down the basic rule that a party who suffers by the breach is entitled to receive from the party in breach “compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach”.
The Explanation to the section lays down that in estimating the loss or damage arising from the breach of a contract, “the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account”. Though what the Explanation enacts is popularly called the “rule” in regard to mitigation of damages, and has been so referred to even in some decided cases and standard works, and though it is loosely called a “duty” to mitigate, the position really is, as out legislature has rightly stated, merely this, that what the Explanation enacts is not in the nature of an independent rule or duty but is merely a factor to be taken into account in assessing the damages naturally arising from the breach, for the purpose of the main part of Section 73.
Q.20. A, under the influence of passion, excited by a provocation given by Z, intentionally killed Y, Z’s child. Here, what offence has A committed?
[Arunachal Pradesh Judicial Service (Grade-I) Examination, 2013]
Ans. A has committed the offence of murder defined in section 300 IPC as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.
Provocation may be a valid ground to convert murder into culpable homicide where the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. This is contained in Exception-1 attached with section 300 IPC.
The above exception is subject to the following provisions:
That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. The problem is based on illustration (a) attached with Exception-1 of section 300 IPC.
[West Bengal Judicial Service (Written) Examination, 2017]
Ans. The answer of this question will depend upon the particular circumstances. If the agent is restricted by the principal not to appoint any sub-agent and in such case sub-agent is appointed, the agent will be treated as principal and he will be completely responsible for all the acts of sub-agent. In this respect, section 193 is relevant which is reproduced as under-
193. Agent’s Responsibility for Sub-Agent Appointed without Authority- Where an agent, without having authority to do so, has appointed a person to act as a sub- agent, the agent stands towards such person in the relation of a principal to an agent, and is responsible for his acts both to the principal and to third person; the principal is not represented, by or responsible for the acts of the person so employed, nor is that person responsible to the principal.
But, in the following cases an agent can appoint a sub-agent unless he is expressly forbidden to do so-
(a) When the ordinary custom of trade permits the appointment of a sub-agent.
(b) When the nature of the agency business requires the appointment to a sub-agent.
(c) When the act to be done is purely ministerial and involves no exercise of discretion or confidence, e.g. routine clerks and assistants.
(d) When the principal agrees to the appointment of such a sub-agent expressly or impliedly.
(e) When some unforeseen emergency has arisen.
[Assam Judicial Service (Grade-III) Main Examination, 2015]
Ans. To get the protection under section 84 IPC, the legal insanity is required. There may be some circumstances where a person is mentally insane but not legally insane. In Hari Singh Gond v. State of Madhya Pradesh, AIR 2009 SC 31 the Court held that Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of ‘unsoundness of mind’ in IPC. The courts have, however, mainly treated this expression as equivalent to insanity.
But the term ‘insanity’ itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity.
Supreme Court of India in Surendra Mishra v. State of Jharkhand, on 6 January, 2011 held that every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer are not sufficient to attract the application of Section 84 of the Indian Penal Code.