Q) What are the qualities of a Judicial Officer?

Ans: A Judicial Officer must, apart from academic knowledge, have the capacity
to communicate his thoughts, he must be tactful, diplomatic, and have a sense
of humour, and the ability to defuse situations, and to control the examination of
witnesses and also lengthy irrelevant arguments and the like.

THE CODE OF CIVIL PROCEDURE, 1908

 Firstly, C.P.C. came into effect 21.3.1908. The substantive portion is

defined in the Code of Civil Procedure in the recent amendment, which
came into effect from 1.7.2002.

Part-I Suits in general

Sec.2(2) – ‘decree’ means formal expression of an adjudication which

conclusively determines the rights of the parties with regard to all or any of the
matters in controversy in the suit and may be either preliminary or final. An
order of dismissal for default is not a decree.

Sec.2(3) ‘decree-holder’ means any person in whose favour a decree

has been passed or an order capable of execution has been made.

2(5) “foreign Court” means a Court situate outside India and not
established or continued by the authority of the Central Government.

Sec.2(8) ‘Judge’ means the presiding officer of a civil court.

Sec.2(9) ‘Judgment’ means the statement given by the judge on the

grounds of a decree or order. Every judgment should contain a concise
statement of the case the points for determination the decision thereon and the
reasons for such decision.

Sec.2(10) ‘judgment-debtor’ means any person against whom a

decree has been passed or an order capable of execution has been made.

Sec.2(11) ‘legal representative’ means a person who in law

represents the estate of a deceased person and includes any person who
intermeddles with the estate of the deceased and where a party sues or is sued
in a representative capacity the person on whom the estate devolves on the
death of the party so suing or sued.

Sec.2(12) ‘mesne profits’ of property means those profits which the

person in wrongful possession of such property actually received or might with
ordinary diligence have received there from together with interest on such
profits, but shall not include profits due to improvements made by the person in
wrongful possession.

Sec. 2(13) ‘movable property’ includes growing crops;

Sec. 2(14) ‘order’ means the formal expression of any decision of a civil
court, which is not a decree.
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Sec. 2(17) ‘public officer’ means every judge, every member of All
India services, every commissioned or Gazetted officer of military forces; every
police officer of the Government who prevents the offences and protects the
public peace and law, every officer whose duty to protect the property of
Government and to prevent the violation of any law for the protection of
pecuniary interests of the Government; and every officer in the service or pay of
the Government for the performance of any public duty.

Sec.10 – Stay of suit ( res-subjudice) – No court shall proceed with the trial
of any suit subject matter of which is directly and substantially in issue in a
previously instituted suit between the same parties. The statutory embargo on
courts to proceed when a related matter is seized off by a court between the
same parties is defined as res-subjudice.

Sec.11 – res judicata – No court shall try any suit or issue subject
matter of which is directly and substantially in issue in a former suit between the
same parties in a court of competent jurisdiction and such suit or issue has been
heard and finally decided by such Court.

 Constructive res-judicata is explained under Section 11 as Explanation

IV. Any matter which might and ought to have been made ground of
defence or attack in such former suit shall be deemed to have been a
matter directly and substantially in issue in such suit. It applies to
execution proceedings also. Obiter dictum (a saying by the way) cannot
be treated as res-judicata.

JURISDICTIONS

Territorial Jurisdiction: Otherwise known as local jurisdiction is

relating to actions mainly against property and also person. In suits relating to
immovable property with or without rent or profits or compensation etc., the suit
must be brought where the property (even a part of it) is situate as per
Sections 16 and 17 CPC and where it is uncertain, with the permission of
Court in any one of those courts as per Sec.18 CPC. In relief respecting
compensation for wrong to immovable property where the relief can be
entirely obtained through defendant’s personal obedience as per proviso to
Sec.16 CPC and in case of compensation for wrong to person or moveable
property as per Sec. 19 CPC., the suit can be filed where the property is situate
or where the defendant resides or carries on business or personally works for
gain. Sec. 20 CPC as a residue provision says subject to the above limitations
every suit shall be instituted where the cause of action in whole or part arises or
where the defendant or any of the defendants resides or carries on business or
personally works for gain. It provides U/s 3 & 15 of A.P. Civil Courts Act,
1972.

Pecuniary jurisdiction:

means the pecuniary value of the subject matter that confers jurisdiction on
a particular cadre of Court. As per Section 6 of CPC r/w Sec. 5 & 16 of the
A.P.Civil Court’s Act the pecuniary jurisdiction of (1) the Chief Judge, Additional
Chief Judge or District Judge is on value of the subject matter of the suit or other
proceeding exceeds Rs. Ten lakhs, (2) a Senior Civil Judge is on value of the
subject matter exceeds Rs. One lakh but doesn’t exceed Rs. Ten lakhs and (3) a
Junior Civil Judge is where the value of the subject matter of a suit or other
proceeding doesn’t exceed Rs. One Lakh.

Sections 9 & 17 of the Civil Courts Act deal with the pecuniary jurisdiction
in appeals. Sec.15 CPC lays down that suits must be instituted in the Court of
lowest grade.
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Inherent jurisdiction:

Inherent jurisdiction means competence of the court to decide a case

and where it is lacking it is a case of inherent lack of jurisdiction. In other words,
inherent jurisdiction means the power or authority to adjudicate a particular
cause. S.9 CPC describes the nature of the suits, which a Civil Court can
entertain and adjudicate. It says that in all suits of civil nature, the Courts shall
have jurisdiction to try except for the suits the cognizance of which is either
expressly or impliedly barred. Therefore, jurisdiction of a Civil Court is to be
assumed unless the jurisdiction is expressly or impliedly barred.

WAIVER OF OBJECTIONS

As per Section 21 CPC, unless there has been failure of justice shown, since
objections to pecuniary and territorial jurisdiction shall be taken at or
before settlement of issues it cannot be allowed to be taken later, it
tantamount to waiver. Parties cannot by Agreement confer jurisdiction on
a court which it does not possesses. (AIR 1971 SC 740 & 1995 SC 171).
------------
Sec.22 – Where suits are pending in two or more courts, any defendant
after notice to other party, before settlement of issues, apply for transfer of such
suit to another court.

Sec.23 – Application under section 22 shall be made to the appellate

court where both the courts are subordinate to the same appellate court and
where they are subordinate to different appellate courts to the High Court and
where they are subordinate to different High Courts to the High Court within
whose jurisdiction the suit is to be brought.

Sec.24 – On application of any of the parties, the High Court or the

District Court, after notice to the other side and after hearing may transfer any
suit, appeal or other proceeding to another court which is subordinate to it, or,
take such suit, appeal or proceedings on its record and try or dispose of the
same.

Sec.26 – Every suit shall be instituted by the presentation of a plaint and

in every plaint facts shall be proved by affidavit.

Sec.27. Where suit has been instituted, summons may be issued to the
defendant to appear and answer the claim on such day not beyond 30 days from
the date of institution of the suit.

Sec.30 – The court may either on its own motion or on application make
an order for delivery and answering of interrogatories, admission of documents
and facts, discovery, inspection, production, impounding and return of
documents or other material objects producible as evidence.

Sec.31 – Court shall give summonses to give evidence or to produce

documents or other material objects.

Sec.32 – In default of attendance in pursuance of summonses u/s 30 the

court may compel his attendance by issue of warrant of arrest, by attachment
and sale of his property, by imposing fine not exceeding Rs.5000/- or by ordering
him to furnish security for his appearance and in default to commit him to the
civil prison.
Sec.34 – Interest – In a decree for payment of money, the court may
order reasonable interest on the principal sum adjudged from the date of suit to
the date of decree with further interest not exceeding 6% p.a from the date of
decree to the date of payment. Provided, if the sum so adjudged had arisen out
 4

of a commercial transaction the rate of such further interest may exceed 6% p.a
but shall not exceed the contractual rate of interest or where there is no
contractual rate the rate at which moneys are lent by nationalized Banks in
relation to commercial transactions. Rule of Damdupat is a rule relating to
interest.

Sec.35 – Costs –Court shall have full power to determine by whom or

out of what property and to what extent costs are to be paid.

Sec.35 A: Imposition of costs does not absolve the person from criminal
liability that may arise there from. Compensatory costs can be imposed to the
extent ofRs.3000/-

Sec.35B – Costs for causing delay in prosecution of suit. Costs imposed

under this Section shall not be included in the costs awarded in the decree
passed in the suit; shall, if not paid, be executable against the person on whom
the costs has been imposed.

Part-II Execution
Sec. 38 – A decree may be executed either by the court, which passed
it, or by the court to which it is sent for execution.

Sec.39 – Transfer of decree for execution - On the application of

decree holder, the court which passed a decree may send it for execution to
another Court of competent jurisdiction if the judgment-debtor (a) voluntarily
resides or carries on business or personally works for gain within the local limits
of such other court (b) has no property within the local limits of the jurisdiction
of the court which passed the decree (c) if the decree directs the sale or delivery
of immovable property situate outside the local limits of the court which passed
the decree, or (d) for any reasons which the Court which passed the decree
considers that the decree should be executed by such other court.

Sec. 46 – Precepts – On application of the decree holder the Court

which passed the decree may issue a precept to any other court, which would be
competent to execute such decree, to attach any property belonging to the
judgment debtor as specified in the precept. No attachment under a precept
shall continue for more than two months unless extended by the court which
passed the decree.

Sec. 47 – The executing court can go into all the questions between the
parties relating to the execution, discharge or satisfaction of the decree.

Sec.50 – Where a judgment-debtor dies before the decree has been fully
satisfied, the holder of the decree may apply to the court which passed it to
execute the same against the legal representative of the deceased and where
decree is executed against such legal representative he shall be liable only to the
extent of the property of the deceased which has come to his hands and has not
been duly disposed of.

Sec.51 – Procedure in execution – On the application of the decree

holder the decree may be executed (a) by delivery of any property specifically
decreed, (b) by attachment and sale or by sale without attachment of any
property, (c) by arrest and detention in prison, (d) by appointing a receiver, or
(e) in such other manner as the nature of the relief granted may require.
Provided where the decree is for payment of money execution by detention in
prison shall not be ordered without giving opportunity to the J.Dr to show cause
why he should not be committed to prison. If the court is satisfied that the J.Dr
with intention to obstruct or delay the execution of the decree (a) is likely to
 5

abscond or leave the local limits of the jurisdiction of the Court (b) has after the
filing of suit in which decree was passed, dishonestly transferred, concealed, or
removed any part of his property or committed any act of bad faith in relation to
his property, (c) though the J.Dr has the means to pay the amount of decree and
refuses or neglects to pay the same, the Court can commit him to prison.

Sec.55 – Arrest and detention – A J.Dr may be arrested in execution

of a decree and as soon as practicable be brought before the Court and his
detention may be in the civil prison. For the purpose of making arrest under this
section no dwelling house shall be entered after sunset and before sunrise. No
outer door of a dwelling house shall be broken open unless it is in the occupancy
of the J.Dr and he prevents access thereto. If the room is in the occupancy of a
pardanishin woman who is not J.Dr she should be given reasonable opportunity
to withdraw from that place and then the officer authorized to make arrest may
enter the room for the purpose of making arrest. Where the decree is for money
and the J.Dr pays the amount of the decree and the costs of arrest to the officer
arresting him, such officer shall at once release him.

Sec.56 – No woman shall be arrested and detained in civil prison

in execution of decree for payment of money.

Sec.58 – Detention and release – Detention shall not exceed 3

months where the decree is for the payment of sum of money exceeding
Rs.5,000/- and where the decree is for the payment of money exceeding
Rs.2,000/- but not exceeding Rs.5,000/- the detention shall be for a period not
exceeding 6 weeks. No order shall be made for detention in cases where the
amount of decree does not exceed Rs.2,000/-. Provided, the J.Dr shall be
released (a) on the expiration of the period of detention (b) on the amount
mentioned in the warrant for his detention being paid to the officer in charge of
the civil prison, (c) on the decree against him being otherwise fully satisfied, (d)
on the request of the person on whose application he has been so detained, and
(e) on the omission by the person on whose application he has been so detained
to pay subsistence allowance. Mere release from detention does not discharge
J.Dr from his debt, but he shall not be re-arrested under the same decree.

Sec. 59 – The J.Dr may be released on the ground of illness.

Sec. 60 – Property liable to be attached and sold in execution of

decree – The following property is liable to attachment and sale in
execution of decree namely, lands, houses, goods, money, cheques,
promissory notes, securities, bonds, debts, shares, all other saleable
property movable or immovable belonging to J.Dr. The following shall
not be liable for attachment: -
(a) the necessary wearing apparel, cooking vessels, beds and
bedding of the judgment-debtor, his wife and children, and
such personal ornaments as, in accordance with religious
usage, cannot be parted with by any woman;
(b)tools of aritisans, agricultural implements, cattle and seed
grain which are necessary to enable the J.Dr to earn his
livelihood.
(c) Houses and other buildings belonging to an agriculturist,
labourer or a domestic servant occupied by him.
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(d) Books of accounts

(e) A mere right to sue for damages;
(f) Any right of personal service
(g) Stipends and gratuities allowed to pensioners.
(h)Wages of labourers and domestic servants
(i) Salary to the extent of first Rs.1000/- and 2/3 rd of the
remainder in execution of any decree other than decree for
maintenance.
(ia) 1/3rd of the salary in execution of decree for
maintenance.
(j) Pay & allowances of defence persons
(k) (1) all compulsory deposits under P.F Act. (2) all moneys
under life insurance policies
(l) any allowance forming part of the emoluments of any
servant of Government.
(m) Expectancy of succession by survivorship or other merely
contingent or possible right or interest.
(n)A right to future maintenance.
‘salary’ means the total monthly emoluments, excluding any allowance
declared exempt from attachment, derived by a person from his
employment whether on duty or on leave. ‘agriculturist’ means a
person who cultivates land personally and who depends for his
livelihood mainly on the income from agricultural land whether as
owner, tenant, partner or agricultural labourer.

Sec.62 - No person in execution of any process directing or authorizing

seizure of movable property shall enter any dwelling house after sunset and
before sunrise. (2) No outer door of a dwelling house shall be broken open
unless such dwelling house is in the occupancy of the J.Dr and he refuses or
prevents access thereto, but once the person executing gains entrance to any
dwelling house he may break open the door of any room in which he has reason
to believe any property to be. (3) where a room in a dwelling house is in the
actual occupancy of pardanishin woman who does not appear in public the
person executing the process shall give notice to such woman to withdraw and
after allowing reasonable time and facility for withdrawing he may enter such
room for the purpose of seizing the property.

Sec.64 - Where an attachment has been made any private transfer or

delivery of the property attached subsequent to the attachment shall be void.
However, any private transfer or delivery of property in pursuance of any
contract entered into and registered before the attachment is valid.

Sec.73 – Where the proceeds of sale in execution are held by a court and
where more than one decree holder applies to the Court for its distribution, the
proceeds, after deducting the costs of realization, shall be ratably distributed
among all such persons. In case the property sold is subject to mortgage or
charge the property shall be sold free from the mortgage and charge and the
 7

mortgagee or encumbrances shall be given same interest in the proceeds of the

sale as he had in the property sold. The ratable distribution shall be;
First to meet the expenses of sale
Secondly to discharge the amount due under the decree
Thirdly to discharge the amounts due on subsequent encumbrances
Fourthly, to be ratably distributed among the holders of decrees applied.
The debts due to the State are entitled to priority over all other debts.

Sec.74 – In case the J.Dr or some person on his behalf resists or obstructs in
obtaining possession by the decree holder or purchaser of immovable property
sold in execution of a decree without any just cause, the Court may at the
instance of the decree holder or the purchaser order the J.Dr or such other
person to be detained in civil prison for a term not exceeding 30 days and direct
that the decree holder or purchaser be put into possession of the property.

Part-III Incidental proceedings (Commissions)

Sec.75 – The court may issue commission (a) to examine any

person (b) to make local investigation (c) to examine or adjust
accounts (d) to make a partition (e) to hold a scientific, technical, or
expert investigation (f) to conduct sale of property which is perishable
and in the custody of court pending determination of the suit, and (g)
to perform any ministerial act.

Sec.77: A letter of request to examine a witness can be issued by

the court in lieu of issuing a commission. A letter or request in lieu or
issuing a commission to examine a witness can be issued in person residing at
any place not within India.

Sec.78: Commission can be issued for the examination of witness by or at

the instance of courts situate in any part of India to which the provision of CPC
do not extent, courts established outside India by the authority of Central
Government and a foreign court.

Part-IV Suits in particular cases

Sec. 79 – In a suit by or against the Government the authority to

be named shall be (a) ‘Union of India’ in case of central Government
(b) ‘State’ in case of State Government.

Sec.80 – Notice – No suit shall be instituted against the

Government or against a public officer until expiration of 2 months
after notice in writing has been delivered to the authorized officer and
the plaint shall contain a statement that such notice has been so
delivered or left. However, a suit to obtain an urgent or immediate
relief against the Government or any public officer may be instituted
with the leave of the Court without serving any notice, but the Court
shall not grant relief in the suit whether interim or otherwise without
giving reasonable opportunity to the Government or public officer, as
the case may be.
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Sec.81 – The public officer is exempted from arrest and personal

appearance.

Sec.82 – A decree passed against the Government or public

officer shall not be executed for a period of 3 months from the date of
that decree.

Sec.83: Alien enemy residing in a foreign country cannot be sue in any

court.

Sec.86: Foreign Rulers, Ambassadors and Envoys can be sued in Indian

Courts only with the written consent of the Central Government.

Sec.88 – Interpleader suit – Where two or more defendants

claim adversely one another for the relief and where plaintiff has no
interest in the relief other than for charges or costs and ready to pay or
deliver it to the rightful claimant, the plaintiff may institute
interpleader suit.

Part-V – Special Proceedings

Sec. 89 – Settlement of disputes outside the court – If both the
parties are acceptable to a settlement, the court shall formulate terms
of settlement and refer the same for (a) arbitration, (b) conciliation (c)
Lok Adalat, or (d) mediation.

Part-VI Supplemental Proceedings

Sec.90: Power to state case for opinion of Court.

Sec.91: Public nuisance and other wrongful acts affecting the public.
Sec.93: Exercise of powers of Advocate General outside presidency
towns.
Sec.94 – To meet the ends of justice the Court may (a) issue warrant of
arrest to the defendant seeking security for his appearance and if he fails commit
him to the civil prison, (b) direct the defendant to furnish security to produce
any property belonging to him or order attachment of any property, (c) grant a
temporary injunction and in case of disobedience commit the person guilty to the
civil prison and order that his property be attached and sold (d) appoint a
receiver of any property, (e) make such other interlocutory order as may appear
to the court just and convenient.

Sec.95 – Where arrest, attachment or injunction was obtained

on insufficient grounds the Court may compensate the defendant, on
application, in the amount not exceeding Rs.50,000/-.

PART-VII APPEALS

Sec.96 – Appeal from original decree – An appeal shall lie from every
decree passed by any court exercising original jurisdiction to the Court
authorized to hear appeals. An appeal lie from an ex parte decree. No appeal
shall lie from a decree passed by the court with the consent of the parties. No
appeal shall lie except on the question of law from a decree of small causes court
 9

when the value of the subject matter of the original suit does not exceed
Rs.10,000/-.

Sec.97 – Where appeal has not been preferred against

preliminary decree no appeal shall lie from the final decree.

Sec.100 – Second appeal – Where a substantial question of law

involves, a second appeal shall lie to the High Court from every appellate decree
passed by any court subordinate to the High Court. No appeal shall lie from an
appellate decree passed ex parte.

Sec. 100A – No further appeal lies from an original or appellate

decree or order of a Single Judge of High Court.

Sec. 102 – No second appeal shall lie from any decree when the
subject matter of the original suit is for recovery of money not
exceeding Rs.25,000/-.

PART-VIII REFERENCE, REVIEW AND REVISION

Sec. 113 – Reference to High Court – Where in a case pending

before a subordinate court a question involves as to the validity of any Act,
Ordinance or Regulation or any provision contained in an Act, Ordinance or
Regulation the determination of which is necessary for the disposal of the case
the Court shall state a case setting out its opinion and the reasons thereof and
refer the same for the opinion of the High Court.

Sec.114 – Review – A person aggrieved of a decree may apply for a

review of it and the Court may make such order thereon as it thinks fit. The
power of review may be exercise on the discovery of new and important matter
or evidence which after the exercise of due diligence was not within the
knowledge of the person seeking the review or could not be produced by him at
the time when the order was made. It may be exercised where some mistake or
error apparent on the face of the record is found.

Sec. 115 – Revision – In a case where no appeal lies, it appears to the

High Court that the subordinate court has exercised a jurisdiction not vested in it
by law, or, failed to exercise a jurisdiction so vested, or, has acted illegally in
exercise of its jurisdiction, the High Court may call for the records of such case
and make such order as it thinks fit. The High court shall not vary or reverse any
decree or order against which an appeal lies either to the High Court or to any
court subordinate to it.

Part-IX – Special provisions relating to the High Courts not being the
Court of a Judicial commissioner.

Part-X - Rules (Power of High Court to make rules)

Part-XI – Miscellaneous

Sec. 132 – Women who according to the customs do not appear

in public shall be exempt from personal appearance in Court. However,
there is no exemption to such women from arrest in execution of civil process
where it is not prohibited by the Code.
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Sec.133 – The following persons are exempted from personal

appearance in Court; (1) President of India (2) Vice-President of India
(3) Speaker of House of the People (4) Ministers of the Union (5)
Judges of the Supreme Court (6) Governors of the State (7) Speakers
of the State Assemblies (8) Chairmen of the State Legislative council
(9) Ministers of States (10) Judges of the High Courts.

Sec. 135 – No Judge, Magistrate or other Judicial officer shall be

liable to arrest under civil process while going to, presiding in or
returning from his Court.

Sec. 135A – No Member of Parliament or M.L.A shall be liable to

arrest or detention in prison under civil process during continuance of
any meeting of parliament or assembly and during 40 days before or
after such meeting.

Sec. 136 – Where person to be arrested or property to be attached is

outside district except in execution of decrees, the Court may issue of warrant of
arrest or make an order of attachment and send to the District Court within the
local limits of whose jurisdiction such person or property resides or situate a copy
of the warrant or order together with the probable amount of the costs of the
arrest or attachment. The District Court shall on receipt of such copy and amount
cause the arrest or attachment and inform the court, which made the order of
arrest or attachment. The Court making the arrest shall send the person arrested
to the Court, which issued the warrant of arrest. If the person furnishes sufficient
security for his appearance before the court, which issued the warrant of arrest
or furnishes security in satisfaction of decree that may be passed against him the
Court making the arrest may release him.

Sec.144: Doctrine of restitution, which is an equitable in nature.

Restitution can be against a party to the suit.

Sec. 148A – Caveat – Where an application is expected to be made or

has been made any person claiming a right to appear before the Court on the
hearing of such application may lodge a caveat. Where a caveat has been lodged
the caveator shall send a notice of filing caveat in the Court to the person by
whom the application is expected to be made. After caveat has been lodged, any
application is filed in any suit or proceeding the Court shall serve a notice of the
application on the caveator. Caveat shall not remain in force after expiry of 90
days of its lodging.

Sec. 149 – Where there is deficiency of payment of court fee, the Court
may at any stage, allow the person by whom such fee is payable to pay the
whole or part of such court fee.

Sec. 151 – Inherent powers of Court – For the ends of justice or to

prevent abuse of the process of the Court the Court may make such orders as
may be necessary.

Sec. 152 – Amendment of judgments, decrees or orders – Clerical or

arithmetical mistakes in judgments, decrees or orders may at any time be
 11

corrected by the court either of its own motion or on the application of any of
the parties.

* * *

THE FIRST SCHEDULE

Order-I - Parties to suits

Rule-1-Several persons can be joined as plaintiffs, in cases where right

arises out of the same act, in favour of such person and where any common
question of law is involved.

R- 2 – Power of court to order separate trials – Where it appears to the

Court that any joinder of plaintiffs may embarrass or delay the trial of the suit,
the Court may order separate trials.

Rule – 3 - Several persons can be joined as defendants in cases where

right arises out of the same act against such persons and where any common
question of law is involved.

R-8 – One person may sue or defend on behalf of all in same interest. A
suit in representative capacity can be filed.

Rule - 9 – (& Or.2 R.2): Multifariousness in a suit results due to mis-

joinder of parties and misjoinder of cause of action. R.9: Where a person who is
a necessary party to the suit has not been joined as a party to the suit; it is a
case of non-joinder. On account of mis-joinder or non-joinder of parties, the suit
can not be dismissed. A suit is bad for non-joinder of a necessary party.

R-10 – Impleading of parties – The court may at any stage of the

proceedings either upon or without the application order adding or striking out of
parties. Where a defendant is added the plaint shall be amended and amended
copies shall be served on the new defendant as well as on the old defendant.
 O.I R.10 & O.22 R.10 CPC: Transferee pendente lite can be added as a
proper party if his interest in the subject matter of suit is substantial and
not just peripheral.
R-10A – The Court may request any pleader to address it.
R-12 – Where there are more plaintiffs or defendants than one, any one
or more of them may be authorized to appear, plead and act in such other
manner. The authority shall be in writing signed by the party giving it and shall
be filed in the Court.
R-13 – Objections as to non-joinder or misjoinder shall be taken at the
earliest possible opportunity, and in all cases before the settlement of the issues.

Order-II Frame of suit

R-2 – Every suit shall include the whole claim. The plaintiff may relinquish
any portion of his claim in order to bring the suit within the jurisdiction of any
court. Where a plaintiff omits or relinquishes any portion of his claim, he shall
not afterwards sue in respect of the portion so omitted or relinquished. R.2 does
not apply to application for execution and writ petitions.
R-3 – If a plaintiff fails to sue for the whole of the claim, which he is
entitled to make in respect of a cause of action in the first suit, then he is
precluded from suing in the suit in respect of portion so omitted.

Order-III Recognized agents and pleaders

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R-5 – Any process served on the pleader or left at the office or ordinary
residence of such pleader shall be presumed to be duly communicated.

Order-IV - Institution of suits

R-1 – Every suit shall be instituted by presenting a plaint

Rule-1(1) Every suit shall be instituted by presenting a plaint in duplicate

to the court or such officer as it appoints in this behalf.(Amendment 2002)

Rule-1(2) Every plaint shall comply with the rules contained in Order VI
and VII, so far as they are applicable.

R-1(3): A plaint shall not be deemed to be properly instituted if it does

not comply with the rules contained in Order IV, Rule 1(1) and 1(2).

Order-V - Issue and service of summons

R-1 – When a suit has been duly instituted, a summons may be issued to
the defendant to appear and answer the claim and to file the written statement
of his defence, if any, on such day within 30 days from the date of service of
summons. Provided, no such summons shall be issued when a defendant has
appeared at the presentation of the plaint and admitted the plaintiff’s claim.
Provided further that where the defendant fails to file the written statement
within 30 days he shall be allowed to file the same on such other day as may be
specified by the Court for reasons to be recorded in writing, but shall not be later
than 90 days from the date of service of summons.

R-9 – Delivery of summons by Court – The service of summons may be

made by delivering or transmitting a copy thereof by registered post ack. due, by
speed post, by courier service or by any other means of transmission of
documents including fax message or electronic mail, at the expenses of the
plaintiff. When an acknowledgement or any receipt purporting to be signed by
the defendant or his agent is received by the court, or postal article is returned
back with postal endorsement or courier endorsement that the defendant or his
agent refused to take delivery, the court issuing the summons shall declare that
the summons had been duly served on the defendant. If the acknowledgement is
not received within 30 days the Court shall presume the service.

Rule-9(3) The expenses for the service of summons to the defendant

have to be borne by the plaintiff. Summons can be served through courier
services or fax messages or electronic mail services.

R-9A – The Court may on the application of plaintiff, permit such plaintiff
to effect service of such summons. Dasti summons for serving on the defendants
can be given to the plaintiff. Summons for service can be delivered to the
plaintiff. Where summons has been issued and delivered to the plaintiff for
service on defendant is refused as un-served with the endorsement ‘refused’, the
court can re-issue the summons to be served by the court.

R-20 – Substituted service – If the Court thinks fit, service may be

ordered by advertisement in a local daily newspaper.

Rule-25: Where the defendant resides out of India the summons shall be
addressed and sent to him through post.

Order-VI – Pleadings generally

 13

Rule 1: Pleading: ‘Pleading’ shall mean plaint or written statement. Concise

form of the material facts, but not evidence, paragraphs numbered, each
allegation, dates, sums and numbers shall be expressed.
Rule-2: Pleading to state material facts and not evidence.
Rule-5: Furnishing of further particulars has been provided.
Rule -15: Pleading must be verified by all the parties if there are more than one
or any one of the parties.
Rule-16: The pleadings can be ordered to be struck out if they are unnecessary,
scandalous, frivolous or vexatious, if tend to prejudice, embarrass or delay the
fair trial or if an abuse of the process of the court.
Rule17: The amendment of the pleading may be allowed as may be necessary
for determining the real controversy between the parties at any stage of the suit.
Amendments can be allowed for granting relief on the basis of different
approaches to the same facts, amendment taking note of subsequent events,
amendment for correcting the mis-description of property. Provided, pleading
can be amended before the trial court or before the first appellate court or
before the second appellate court. An application for amendment of pleadings
can be allowed before the commencement of trial.
Rule-18: Amendment allowed must be carried on, in cases no time is fixed for
carrying on the amendment, within 14 days.

Order – VII – Plaint

Rule 9: Procedure on admitting plaint: Where the court orders for issuance and
service of summons on the defendants, the plaintiff is required to present the
copies of the plaint along with the requisite fee, within seven days of the order.
(amendment 2002)
Rule 11: A plaint can be rejected when the plaintiff fails to pay the court-fee or
postal charges for service of summons on the defendants or fails to present
copies of the plaint, the suit is liable to be rejected. (or the suit is liable to be
dismissed for non-prosecution under Or.IX R.2 CPC)
Rule – 11(e) The court can reject the plaint, if it is not filed in duplicate.
Rule – 13: On rejection of a suit under Or.7,R.11 CPC, a fresh suit on the same
cause of action is not barred at all.
Rule -14: The documents must be filed along with the plaint.
Rule - 14(3) If a document, which ought to be produced in the court along with
the pleadings, is not produced, at the hearing of the suit, the same shall not be
received in evidence on behalf of the plaintiff.

Order – VIII –Written statement, set-off and counter-claim

Rule-1: Mandates that defendant shall file written statement of his defence
within 30 days from the date of service of summons. (Order V Rule 1 of CPC
covers). If the defendant fails to file the written statement within 30 days, the
court permits to file the same within 90 days on recording reasons for such
delay.
Rule-1A- If a document is not filed along with the pleadings, at the hearing of
the suit, such document shall not without the leave of the court, be allowed to
be received in evidence on behalf of the defendant. (amendment 2002)
Rule-1A(4) Where a defendant has not filed a document along with written
statement, the defendant is precluded from handing over the same to the
witness to refresh his memory.
R.3: Denial to be specific: It shall not be sufficient for a defendant in his written
statement to deny generally the grounds alleged by the plaintiff, but the
defendant must deal specifically with each allegations of fact of which he does
not admit the truth, except damages.
Rule-6: Set-off is a reciprocal ascertainment of debts between the parties. Set-off
can be claimed in a recovery of money suit only and can be of ascertained sum
of money. Set-off can be legal set-off and equitable set-off. Inset-off, court fee is
payable. In a written statement, a defendant can claim both set-off and counter-
claim. Set off should not be barred on the date of the suit while counter-claim
 14

should not be barred on the date of filing of written statement. Claim for set-off
cannot exceed plaintiff’s claim, whereas counterclaim can exceed the plaintiff’s
claim.
Rule – 6A: A right to counter-claim has been provided. If in any case in which
the defendant sets up a counter-claim the suit of the plaintiff is stayed,
discontinued or dismissed, the counter-claim can nevertheless be proceeded
with.
Rule-9: Subsequent to the filing of written statement, the defendant cannot file
any pleading by way of defence of set-off or counter-claim without the leave of
the court. When the court requires a written statement or additional written
statement from any of the parties, the same can be presented within 30 days.
Rule – 10: Default in filing of written statement has been dealt with. On default
in filing of written statement, pronouncement of judgment is discretionary and
Court may pronounce the judgment at once or may order for striking off the
defence or may pass any other order.(amendment 2002)

Order IX – Appearance of Parties and Consequence of Non-appearance:

Rule-1: Parties to appear on the day fixed in summons for defendant to appear
and answer.
Rule -2: Where the plaintiff fails to pay the court fee or postal charges for service
of summons of the suit, on the defendant, the suit can be dismissed.
Rule -3: Where on the date fixed for hearing of a suit, neither of the party
appears, the suit shall be dismissed.
Rule-4: Suit can be restored if dismissed under Order 9, Rule 2 or Rule 3 and a
fresh suit not barred if within limitation. (application within 30 days).
A fresh suit on the same cause of action is not barred when plaint
rejected under Order VII, Rule 11
Rule-5: Where a summons to the defendants is returned un-served, the plaintiff
has to apply for issuance of fresh summons to the defendants within 7 days of
the return, otherwise, suit is liable to be dismissed. For such dismissal a fresh
suit is not barred.
Rule-6: Procedure when only the plaintiff appears and defendant does not
appear on the date of hearing in the contingency when summons duly served on
the defendant (ex parte decree), when summons served on the defendant but
not within sufficient time (postpone of hearing) and when summons not duly
served (re-summons).
Rule-7 Order passed under Rule 6 can be set aside. Application can be made at
any time on or before the next date of hearing.
Rule-8: Suit can be dismissed if on the date of hearing only the defendant
appears and the plaintiff does not appear. Suit cannot be dismissed if the
defendant admitted the whole claim of the plaintiff and if the defendant admits
the claim of the plaintiff in part, to the extent of claim admitted.
Rule-9: A suit dismissed under or.9 R.8 can be restored. A fresh suit on the same
cause of action is barred.
Rule-12: Where a plaintiff, who is ordered to appear in person, fails to appear,
the suit of the plaintiff is liable to be dismissed.
R.13 CPC & Sec.5 Limitation Act: Provision for condoning the delay in filing
application to set aside the exparte decree, whether the applicant has made out
sufficient cause for his absence when the suit was called for hearing is not
relevant while considering S.5 of Limitation Act a liberal approach has to be
adopted. Under Rule 13 the defendant is liable to be proceeded ex-parte and ex-
parte decree can be set aside on an application filed within30 days.

Order X – Examination of parties by the Court

Rule 1A – Court can direct the parties to opt for any one mode of alternative
dispute resolution after recording the admissions and denials.
Rule 1C: Consequent to failure of conciliation the Presiding Officer of the
conciliation forum can refer the matter again to court.
 15

Order XI: Discovery and inspection

Rule-1: Discovery by interrogatories: In any suit the plaintiff or defendant by
leave of the court may deliver interrogatories in writing for the examination of
the opposite parties or any one or more of such parties and each party required
to answer the same.
Rule-2 Where an application for leave to deliver interrogatories has been moved
along with the interrogatories proposed to be delivered that application shall be
decided.
Rule-7: Interrogatories can be set aside or struck off, on an application made
within 7 days of service of interrogatories. Grounds for setting aside
interrogatories contained in the Code are prolix or oppressive or unnecessary.
Rule -8: Interrogatories shall be answered on an affidavit filed within 10 days
from the date of order.

Order XII-Admission
Rule 2: A party can be called upon, to admit any document, by notice. Notice can
be given by either party to the other party. The time to be given to a party to
admit any document, when called upon by the other party by notice under this
rule is 7 days from the date of service of notice.
Rule-4: When a party is called upon by notice to admit facts by the other party,
the party on whom the notice has been served has to admit the facts within 6-
days of the service of notice.
R.6: Where admissions of fact have been made either in the pleading or
otherwise, whether orally or in writing, the Court may at any stage of the suit,
either on the application of any party or of its own motion and without waiting
for the determination of any other question between the parties, make such
order or give such Judgment as it may think fit, having regard to such admission
decree shall also be drawn.
Rule-8: Pertains to notice to produce documents.

Order – XIII CPC: Production, Impounding and Return of Documents.

Rule-1: Original documents to be produced at or before the settlement of issued.
Rule-1(1) The parties or their pleader shall produce on or before the settlement
of issues, all the documentary evidence in original where the copies thereof have
been filed along with the plaint or written statement.(amendment-2002 – Act
46/1999) Any documentary evidence, in possession of the party not filed; the
party is not excluded from filing the same at a subsequent stage of proceedings,
but can file the same only with the leave of the Court.
Rule 7: Documents which are not admitted in evidence, shall not form part of the
record and shall be returned to the person producing them.
Rule-9: Original documents can be returned to the party producing it after the
disposal of appeal if preferred or after the period of limitation for filing the
appeal, if no appeal is preferred. During the pendency of the suit, to a party
producing the document the original documents admitted in evidence can be
returned on producing the certified copies thereof.

Order XIV- Settlement of issues and Determination of Suit on Issues of

Law or on Issues agreed upon.
Rule-1: In a suit, issues are framed in respect of questions of facts, questions of
law and mixed question of fact & law. Rival contentions of the parties based on
their pleadings.
Rule-2: Issues of law can be tried as preliminary issues, if it relates to the
jurisdiction of the court or a bar to the suit created by any law.
Rule-5: Issues already framed can be amended or can be struck of or additional
issues can also be framed.
List of witnesses must be filed, after the framing of issues within 15 days.
Order – XV-Dispute of the suit at the first hearing
 16

Order XVI- Summoning and Attendance of Witness

Rule – 2: The expenses, of a witness for whom the summons have to be
obtained, shall be deposited by the party applying for the summons within 7-
days of making the application.
Rule-12: Where a witness fails to appear before the court, without any
reasonable ground, such a witness can be penalized to the extent of Rs.500/-
Rule-14: Court has the power to summon a person, who is not called by any
party, as a witness.

Order XVII- Adjournments

Rule-1: Adjournment can be granted: Restricts thenumber of adjournment to be
granted to the party to three.
Rule-1(2) The court, while granting adjournment can impose a cost either
occasioned by the adjournment or higher than the one occasioned by the
adjournment.
Rule-2: When, on the day to which the hearing of the suit is adjourned, the
parties or any of them fail to appear the court may proceed to dispose of the
suit.
Rule -3: Court may proceed notwithstanding either party fails to produce
evidence.
Order XVIII –Hearing of the Suit and Examination of witnesses
Rule-2: Written arguments can be filed before the conclusion of oral arguments
and a copy of the written arguments shall be furnished simultaneously to the
other party.
Rule-2(3A): Authorizes a party to file written arguments before the conclusion of
the oral arguments.
Rule-4: (1) The examination-in-chief of a witness shall be on affidavit. The proof
and admissibility of the document which are filed along with the affidavit shall be
subjected to the orders of the Court. (2) The cross-examination of a witness in
attendance whose examination-in-chief has been furnished by affidavit shall be
taken by the Court or by the commissioner appointed by the Court. (3) Record
either in writing or mechanically.(4) The objection raised during the recording of
evidence by the commissioner shall be recorded by him and decided by the court
at the stage of arguments.
The commissioner appointed for the purposes of recording evidence
(cross) is obliged to submit his report to the court appointing the commission
within 60 days. The objections if any for such appointment shall be recorded by
the commissioner.
Rule – 19: The Court instead of examining witnesses in open court direct their
statements to be recorded on commission.

Rule XX – Judgment and Decree

Rule-1: Ordinarily, the judgment shall be pronounced in 30 to 60 days of
hearing.
Rule-1(2): Copy of the judgment shall be made available to the parties,
immediately after the pronouncement of judgment.
Rule-6A: Decree is to be drawn up in any case within 15 days from the date of
pronouncement of judgment.
Rule-5: The court shall state its finding or decision on each separate issue.

Order XX-A Costs:

Rule-1: Provision relating to certain items, such as expenditure incurred for the
giving of any notice to any other party, typing, writing or printing of pleadings,
charges paid, charges for producing witnesses, charges for obtaining any copies
of judgments and decrees.

Order – XXI – Execution of Decrees and Orders.

 Arrest & Detention O.21 R.37, Sec.51 Rule 40
 17

Where a judgment debtor dies before the decree has been fully satisfied,
the same can be executed against all the legal representatives. Imprisonment in
execution of a decree can be civil imprisonment. Maximum period of detention
where the decree is for more thanRs.5,000: three months, and more than
Rs.2000 and less than 5000: six weeks. Arrest and detention of woman, in
execution of a decree, is prohibited.
Rule-1: Modes of paying money under decree.
Rule-2: Payment out of court to decree-holder (to be certified)
Rule-22: Notice of the execution application has to be issued to the judgment-
debtor, (a) where the execution is applied for beyond two years after the date of
the decree; (b) where the execution application is made against the legal
representatives of the judgment-debtor even it made within two years of the
decree; and (c) where the execution application has been made by the assignee
of the interests of the decree-holder even if made within two years of the
decree. Omission to give notice, under Rule 22, execution is a defect which
renders the execution null and void.
Rule – 37: Discretionary power to permit judgment-debtor to show cause against
detention in prison.
Rule – 38: Warrant for arrest to direct judgment-debtor to be brought up.
Rule-46A: Notice to garnishee
Rule-46B Order against garnishee –
A ‘garnishee’ is judgment debtor’s debtor. A garnishee order is an order
prohibiting the judgment debtor’s debtor from making any payment to the
judgment debtor.

Rule-46C trial of disputed questions –

Rule -46D: procedure where debt belongs to third person
Rule 48 CPC: DHr filed execution for the attachment of salary of the widow of
the original DHr who was given appointment on compassionate grounds after the
death of her husband. The said appointment cannot be treated as the estate of
her late husband.

Order – XXII- Death, Marriage and Insolvency of parties

It applies to suits, appeals and execution proceedings. An application for
bringing the legal representatives of a party has to be moved within30 days.
Rule - 3: Procedure in case of death of one of several plaintiffs or the sole
plaintiff has been provided.
Rule – 4: An application for substitution of the legal representatives of a
defendant lies.
Rule – 4A: In cases where there is no legal representative of a party to the suit,
who died during the pendency of suit, the court shall appoint an administrator
general to represent the estate of the deceased for the purposes of the
proceedings and continue with the proceedings.
Rule - 6: During the period of conclusion of hearing and the pronouncing of the
judgment, if either party dies, the proceedings shall not abate irrespective of
whether the cause of action survives or not.
Rule-7: On the marriage of a female who is a party to the suit, the proceedings
shall not abate.
Rule – 9: On abatement of suit, a fresh suit on the same cause of action is
barred (set aside the previous suit only the remedy)
Rule-10: An assignee of an interest during the pendency of the suit can be
brought on record.
Order – XXIII-Withdrawal and Adjustment of Suits:
Rule-1: withdrawal of suits. The plaintiff can withdraw the suit against all the
defendants if there are more than one, the plaintiff has the liberty to withdraw
the suit against some of the defendant if there are more than one, and the
plaintiff has the liberty to withdraw the suit against anyone of the defendants.
The plaintiff is having the liberty to withdraw the suit in its entirety or abandon
apart from his claim.
 18

Rule-1A: In cases of withdrawal of suit by the plaintiff, defendants can be

transposed as plaintiff if substantial question is to be decided against any of the
other defendants.
Rule-3: Parties to the suit can compromise in a suit. Compromise must be in
writing and signed by the parties. The subject matter of the compromise can
embrace part of the subject matter of the suit and part outside it and can
embrace the subject matter outside the court. Compromise decree has to be
drawn only in respect of the subject matter that relates to the suit.
Rule-3A: A suit to set aside a compromise decree shall not lie on the ground that
the compromise is not lawful.
Rule-3B In a representative suit, an agreement or compromise can be entered
into only with the leave of the court and without the leave of the court, it shall
be void.

Order – XXV-Security for costs.

Rule-1: Security for payment of costs can be required to be furnished by the
plaintiff.
Rule-2: On failure of furnishing security for payment of costs the suit is liable to
be dismissed. Sub-Rule (2) Dismissal order can be restored by the same court.
Order – XXVI – Commissions.
 As a general principle no party can be allowed to collect evidence to
establish his case through appointment of advocate-commissioner.
However, advocate-commissioner can be appointed depending upon facts
and circumstances of a given case. Report of commissioner, not
conclusive and can be challenged by both parties by cross-examining him
with leave of court.
 Court also can examine him suo-motu under Order XXVI Rule 10 CPC
since report of commissioner forms part of court record.
Rule 1 – Appointment of commissioners for recording evidence.
Rule-4: Commission can be issued, for the examination of a person who is a
resident beyond local limits of jurisdiction of a court.
Rule-4A: Empowers the court to issue commission in a suit, for examination of a
person resident within the local limits of its jurisdiction.
Rule-9: Commission to make local investigation can be issued.

Order XXIX-Suits by or Against corporations

Rule-1: In suits by or against a corporation, pleadings must be signed and
verified by the Secretary or any director or other principal officer able to depose.

Order XXXV-Interpleader
Provisions relating to relating to interpleader suit are contained.

Order XXXII – Suits by or against Minors and Persons of unsound Mind

‘Guardian at litem’ is a person defending a suit on behalf of a minor.
A person can act as a next friend if he fulfilling all the three requirements.
A ‘next friend’ or guardian, of a minor, in a suit can be discharged if the minor on
attaining majority elects to continue with the suit applies for the discharge.
Rule-2: A suit instituted by a minor or a lunatic without a next friend, the same is
liable to be struck of.
Rule-4: A person can be appointed as a guardian on his consent in writing.
Rule-7: A ‘next friend’ or guardian can neither enter in to an agreement nor
compromise the suit on behalf of the minor without the leave of the court. An
agreement entered in to or compromise, on behalf of a minor without the leave
of the court is voidable against all the parties other than the minor.
Rule-9: ‘Next friend’ of a minor can be removed, if he ceases to reside in India,
during the pendency of the suit, where the interest of next friend becomes
adverse to that of the minor and where the next friend does not do his duty.
Rule-10: On the retirement, removal or death of a next friend, the suit is liable to
be stayed.
 19

Order – XXXII-A: Suits relating to matters concerning the Family

Rules 1 to 6: Application of the order, proceedings to be held in camera, duty of
court to make efforts for settlement, assistance of welfare expert, duty to
enquire into facts and the meaning of ‘family’ respectively.

Order – XXXIII – Suits by indigent persons

While determining ‘sufficient means’ of a person, property exempt from
attachment in execution of a decree is to be excluded. A permission to sue as
pauper granted, can be withdrawn under certain circumstances. Rejection of an
application for permission to sue as a pauper bars a fresh application on the
same cause of action.
Permission under Order 33 CPC can be granted to sue, to plead a set-off
or to plead a counter-claim.
Rule -1: A person is an indigent person within the meaning, sufficient means to
pay the fee payable on the plaint.
Rule-9: Permission to sue as pauper can be withdrawn if the plaintiff is guilty of
vexatious or improper conduct in the course of the suit and if the plaintiff has
entered into an agreement with reference to subject matter of the suit creating
an interest in that person.
Rule-10: If a plaintiff succeeds in the suit permitted to be instituted as pauper,
the fee payable on the plaint shall be recoverable from any party ordered by pay
the same.
Rule-11A: If a pauper suit abates on the death of the plaintiff, the fee payable on
the plaint shall be recoverable from the estate of the deceased plaintiff.
Rule – 15A: In case the application for permission to sue as pauper is rejected,
the suit is deemed to have been instituted, on the date on which the application
for permission to sue as pauper was presented.

Order – XXXVII – Summary Procedure (Rules 1 to 7)

A suit can be filed on the basis of courts of small causes, City Civil Courts
and High Courts. A suit cannot be filed on the basis of an enactment or a
guarantee. Delay in putting in the appearance in a suit can be condoned on
sufficient cause being shown.
Rule-2: Institution of summary suits.
Rule-3: Defendant has to seek leave to defend the suit within 10 days of service
of summon for judgment. For the said delay, no limit has been prescribed. If the
defendant fails to put in appearance or fails to apply for leave within the
statutory period, the suit is liable to be decreed.

Order XXXVIII-Arrest and Attachment before Judgment

Rule-1: A warrant of arrest before judgment against a defendant can be issued if
the defendant has absconded or left the local limits of the jurisdiction of the
court, if the defendant is about to abscond or leave the local limits of jurisdiction
of the court or if the defendant removes the property outside the local limits of
the jurisdiction of the court.
Rule-2: Security for appearance can be required to be furnished by the
defendant. If he fails to furnish the security, he can be detained in prison for a
maximum period of six months.
Rule – 4: In cases where the amount or value of the subject matter of the suit
does not exceed fifty rupees, the period of detention cannot exceed 6-weeks.
Rule -5: Attachment before judgment can be ordered in respect of movable and
immovable property. Attachment of an immovable property can be ordered by a
civil court of competent jurisdiction only.
Rule 9: Attachment before judgment can be removed on dismissal of the suit or
on furnishing of security required by the defendant.
 20

Order XXXIX – Temporary Injunctions and Interlocutory Orders.

A temporary injunction can be granted to a party establishing a prima-

facie case in his favour; balance of convenience in his favour and irreparable
injury to him in the event of non-grant of injunction .
Rule-1: Temporary injunction can be granted.
Rule-2: Injunction to restrain repetition or continuance of breach is provided.
Rule-2A: Consequences of disobedience or breach of injunction have been
provided. A person guilty of disobedience or breach can be penalized by
attachment of property or detention in civil imprisonment. Period of detention in
civil imprisonment shall not exceed three months. Attachment of property
attached shall remain operative for a period of one year.
Rule-3: Before granting injunction, court to direct notice to opposite party: The
court shall in all cases, except where it appears that the object of granting the
injunction would be defeated by the delay, before granting an injunction, direct
notice of the application for the same to be given to the opposite party. Copies
of affidavits, plaint and documents shall be sent to the other party by registered
post and compliance along with proof has be filed before the court
Rule – 3A: An application for grant of temporary injunction shall be decided in 30
days, in cases of grant of ex-parte temporary injunction.
Rule-4: Provides for discharge of the order of injunction, setting aside of the
order of injunction and variation in the order of injunction.

Order XL – Appointment of Receivers

Rule – 1: Appointment of Receivers.
Rules 2 to 5: Remuneration, duties, enforcement of receiver’s duties and when
Collector may be appointed receiver respectively.
Receiver can be appointed for the purpose of protection of rights of the
parties to the suit and for prevention of injury to the subject matter of the suit. A
receiver is an officer of the Court. A receiver can be appointed during the
pendency of proceedings. Appointment of a receiver is discretionary. A receiver
appointed in respect of any property has a right to deal with the property only
with the leave of the court. A receiver can sue and can be sued for acts done in
his official capacity by a third party only with the leave of the court appointing
him. The property in the hands of the receiver cannot be attached without the
permission of the court. If the receiver fails to account for the gain and loss and
loss ensued by his conduct, the loss so occasioned can be made good by
attaching and sale of receivers’ personal property. If anyone interferes with the
possession of the receiver appointed, contempt proceedings against such a
person can be initiated by the receiver or a party to the suit.

O - XLI : Appeals from original decrees-37

Appeals from original decrees (1-4)

Stay of proceedings and of execution (5-8)
Procedure on admission of appeal (9-15)
Procedure on hearing (16-29)
Judgment in appeal (30-34)
Decree in appeal (35-37)

O - XLII : Appeals from appellate decrees -3

O - XLIII : Appeals from orders -2

O - XLIV : Appeals by indigent persons-3

O - XLV : Appeals to the Supreme Court-17

O - XLVI : Reference- 7
 21

O - XLVII : Review- 9
Rule-1: Grounds for review have been provided.

O - XLVIII : Miscellaneous -3

O - XLIX : Chartered High Courts -3

O - L : Provincial Small Causes Courts-1
O - LI : Presidency Small Causes Courts
 22

INDIAN CONTRACT ACT, 1872

Sec. 2. Interpretation-clause: In this Act the following words and

expressions are used in the following senses, unless a contrary intention appears
from the context:

(a) Proposal: 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;

(b)Promise: When the person to whom the proposal is made, signifies his
assent thereto, the proposal is said to be accepted. A proposal, when accepted,
becomes a promise;

(c) Promisor and Promisee: - The person making the proposal is called the
"promisor", and the person accepting the proposal is called the "promisee";

(d) Consideration: 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;

(e) Agreement: - Every promise and every set of promises, forming the
consideration for each other, is an agreement;

(f) Reciprocal promises: - Promises which form the consideration or part of

the consideration for each other, are called reciprocal promises;

(g) Void Agreement: - An agreement not enforceable by law is said to be

void;

(h) Contract - An agreement enforceable by law is a contract;

(i) Voidable contract - An agreement which is enforceable by law at the

option of one or more of the parties thereto, but not at the option of the other or
others, is a voidable contract;

(j) Void contract- A contract which ceases to be enforceable by law

becomes void when it ceases to be enforceable.

Sec. 3. Communication, acceptance and revocation of proposals: _ 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.

Sec.4. Communication when complete :_ The 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; as against the acceptor, when it comes to the knowledge of the
proposer. The communication of a revocation is complete -as 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; as against
the person to whom it is made, when it comes to his knowledge.

Sec.5. Revocation of proposals and acceptances: 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
 23

time before the communication of the acceptance is complete as against the

acceptor, but not afterwards.

Sec.6. Revocation how made: A proposal is revoked, (1) by communication

of notice, (2) by lapse of time; (3) by non-fulfillment of condition precedent to
acceptance. (4) by death or insanity of the offeror; Revocation by counter offer.
(5) When the offer is non accepted according to the prescribed mode.

Sec.7. Acceptance must be absolute: In order to convert a proposal into a

promise, the acceptance must be absolute and unqualified, be expressed in some
usual and reasonable manner, unless the proposal prescribes the manner in
which it is to be accepted.

Sec.8. Acceptance by performing conditions, or receiving consideration:

Performance of the conditions of a proposal, or the acceptance of any
consideration for a reciprocal promise which may be offered with a proposal, is
an acceptance of the proposal.

Sec.9. Promises, express and implied :Insofar as the proposal or

acceptance of any promise is made in words, the promise is said to be express.
Insofar as such proposal or acceptance is made otherwise than in words, the
promise is said to be implied.

Sec.10. What agreements are contracts: All agreements are contracts if

they are made by the free consent of parties competent to contract, for a lawful
consideration and with a lawful object, and are not hereby expressly declared to
be void.

Sec.11. Who are competent to contract: 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.

Sec.12. What is a sound mind for the purposes of contracting: -A person is

said to be of sound mind for the purpose of making a contract, if, at the time
when he makes it, he is capable of understanding it and of forming a rational
judgment as to its effect upon his interests. A person who is usually of unsound
mind, but occasionally of sound mind, may make a contract when he is of sound
mind. A person who is usually of sound mind, but occasionally of unsound mind,
may not make a contract when he is of unsound mind.

Sec.13. "Consent" defined:- Two or more persons are said to consent

when they agree upon the same thing in the same sense.

Sec.14. "Free consent" defined: Consent is said to be free when it is not

caused by, (1) coercion, as defined in Section 15, or (2) undue influence, as
defined in Section 16, or (3) fraud, as defined in Section 17, or (4)
misrepresentation, as defined in Section 18, or (5) mistake, subject to the
provisions of Sections 20, 21 and 22. Consent is said to be so caused when it
would not have been given but for the existence of such coercion, undue
influence, fraud, misrepresentation or mistake.

Sec.15. "Coercion" defined :_ "Coercion" is the committing, or threatening

to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the
unlawful detaining, or threatening to detain, any property, to the prejudice of
any person whatever, with the intention of causing any person to enter into an
agreement.

Sec.16. "Undue influence" defined: A contract is said to be induced by

"undue influence" where the relations subsisting between the parties are such
that one of the parties is in a position to dominate the will of the other and uses
that position to obtain an unfair advantage over the other.
 24

Sec.17. "Fraud defined":_ "Fraud" means and includes any of the following
acts committed by a party to a contract, or with his connivance, or by his agent,
with intent to deceive another party thereto or his agent, or to induce him to
enter into the contract: (1) the suggestion as to a fact, of that which is not true,
by one who does not believe it to be true; (2) the active concealment of a fact
by one having knowledge or belief of the fact; (3) a promise made without any
intention of performing it;(4) any other act fitted to deceive; (5) any such act or
omission as the law specially declares to be fraudulent.

Sec.18. "Misrepresentation" defined:_ "Misrepresentation" means and

includes, the positive assertion of a fact which is not true though the person
making it honestly believes it to be true; any breach of duty by a person that
brings an advantage to the substance of the thing which is the subject matter of
the agreement.

Sec.19. Voidability of agreements without free consent :_ When consent to

an agreement is caused by coercion, fraud or misrepresentation, the agreement
is a contract voidable at the option of the party whose consent was so caused. A
party to a contract, whose consent was caused by fraud or misrepresentation,
may, if he thinks fit, insist that the contract shall be performed, and that he shall
be put in the position in which he would have been if the representations made
had been true.

Sec.19-A. Power to set aside contract induced by undue influence :_ When

consent to an agreement is caused by undue influence, the agreement is a
contract voidable at the option of the party whose consent was so caused. Any
such contract may be set aside either absolutely or, if the party who was entitled
to avoid it has received any benefit thereunder, upon such terms and conditions
as to the Court may deem just.

Sec.20. Agreement void where both parties are under mistake as to matter
of fact:_ Where both the parties to an agreement are under a mistake as to a
matter of fact essential to the agreement, the agreement is void. Explanation
:_An erroneous opinion as to the value of the thing which forms the subject
matter of the agreement, is not to be deemed a mistake as to a matter of fact.

Sec.21. Effect of mistake as to law : A contract is not voidable because it

was caused by a mistake as to any law in force in India; but a mistake as to a
law not in force in India has the same effect as a mistake of fact.

Sec.22. Contract caused by mistake of one party as to matter of fact :_A

contract is not voidable merely because it was caused by one of the parties to it
being under a mistake as to a matter of fact.

Sec.23. What considerations and objects are lawful, and what not: The
consideration or object of an agreement is lawful, unless, it is forbidden by law;
or is of such nature that, if permitted, it would defeat the provisions of any law;
or is fraudulent; or involves or implies injury to the person or property of
another; or the Court regards it as immoral, or opposed to public policy. In each
of these cases, the consideration or object of an agreement is said to be
unlawful. Every agreement of which the object or consideration is unlawful is
void.
Void agreements
Sec. 24. Agreements void, if considerations and objects unlawful in part: If
only a part of the consideration or object is unlawful, the contract shall be void
as a whole.

Sec: 25. Agreement without consideration, void, unless it is in writing and

registered or is a promise to compensate for something done, or is a promise to
pay a debt barred by limitation law.
 25

Sec. 26: Agreement in restraint of marriage is void.

Sec.27. Agreement in restraint of trade, void. An agreement in restraint of

trade is valid if it relates sale of goodwill.

Sec.28: An agreement not to pursue any legal remedy to enforce the

rights is void. An agreement not to pursue legal remedies but to refer the dispute
to the arbitrator is valid in respect of disputes already arisen and in respect of
disputes which may arise in future.

Sec.29. Agreements void for uncertainty: Agreements, the meaning of

which is not certain, or capable of being made certain, are void.

Sec.30. Agreements by way of wager is void. An agreement in connection

with horse-racing is valid upto Rs.500/-.
Sec.31. "Contingent contract" defined:_ A "Contingent contract" is a
contract to do or not to do something, if some event, collateral to such contract,
does or does not happen.

Sec.32. Enforcement of contracts contingent on an event happening:---

Contingent contracts to do or not to do anything if an uncertain future event
happens, cannot be enforced by law unless and until that event has happened. If
the event becomes impossible, such contracts become void.

Sec.33. Enforcement of contracts contingent on an event not happening:_

Contingent contracts to do or not to do anything if an uncertain future event
does not happen, can be enforced when the happening of that event becomes
impossible, and not before.

Sec.34. When event on which contract is contingent to be deemed impossible, if

it is the future conduct of a living person :_

Sec.35. When contracts become void, which are contingent on happening of a

specified event within fixed time.

Sec.36. Agreements contingent on impossible events void._

Sec.37. Obligation of parties to contracts.

Sec.38. Effect of refusal to accept offer of performance.

Sec.39. Effect of refusal of party to perform promise wholly.
Sec.40. Person by whom promise is to be performed:

Sec.41. Effect of accepting performance from third person.

Sec.42. Devolution of joint liabilities.

Sec.52. Order of performance of reciprocal promises :_ Where the order in which

reciprocal promises are to be performed is expressly fixed by the contract, they
shall be performed in that order; and where the order is not expressly fixed by
the contract, they shall be performed in that order which the nature of the
transaction requires.

Sec.56: An agreement to do an act impossible in itself is void.

Sec.57. Reciprocal promises to do things legal, and also other things

illegal.
 26

64. Consequences of rescission of a voidable contract:_ When a person at

whose option a contract is voidable rescinds it, the other party thereto need to
perform any promise therein contained in which he is the promisor. The party
rescinding a voidable contract shall, if he have received any benefit thereunder
from another party to such contract, restore such benefit, so far as may be, to
the person from whom it was received.

68. Claim for necessaries supplied to person incapable of contracting, or

on his account :_If a person, incapable of entering into a contract, or anyone
whom he is legally bound to support, is supplied by another person with
necessaries suited to his condition in life, the person who has furnished such
supplies is entitled to be reimbursed from the property of such incapable person.

70. Obligation of person enjoying benefit of non-gratuitous act.

71. Responsibility of finder of goods :_A person who finds goods belonging
to another, and takes them into his custody, is subject to the same responsibility
as a bailee.

72. Liability of person to whom money is paid, or thing delivered, by

mistake or under coercion :_A person to whom money has been paid, or
anything delivered, by mistake or under coercion, must repay or return it.

73. Compensation for loss or damage caused by breach of contract

:_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.

Sec. 74. Compensation for breach of contract where penalty stipulated for.
Sec.75. Party rightfully rescinding contract, entitled to compensation:
124. "Contract of indemnity" defined :_A contract by which one party
promises to save the other from loss caused to him by the conduct of the
promisor himself, or by the conduct of any other person, is called a "contract of
indemnity".

Illustration: A contracts to indemnify B against the consequences of any

proceedings which C may take against B in respect of a certain sum of 200
rupees. This is a contract of indemnity.

125. Rights of indemnity-holder when sued :_ The promisee in a contract

of indemnity, acting within the scope of his authority, is entitled to recover from
the promisor_

(1) all damages which he may be compelled to pay in any suit in respect
of any matter to which the promise to indemnify applies;

(2) all costs which he may be compelled to pay in any such suit, if in
bringing or defending it, he did not contravene the orders of the promisor, and
acted as it would have been prudent for him to act in the absence of any
contract of indemnity, or if the promisor authorised him to bring or defend the
suit;

(3) all sums which he may have paid under the terms of any compromise
of any such suit, if the compromise was not contrary to the orders of the
 27

promisor, and was one which it would have been prudent for the promisee to
make in the absence of any contract of indemnity, or if the promisor authorised
him to compromise the suit.

126. "Contract of guarantee", "surety", "principal debtor" and "creditor":_A

"contract of guarantee" is a contract to perform the promise, or discharge the
liability, of a third person in case of his default. The person who gives the
guarantee is called the "surety", the person in respect of whose default the
guarantee is given is called the "principal debtor", and the person to whom the
guarantee is given is called the "creditor". A guarantee may be either oral or
written.

127. Consideration for guarantee :_ Anything done, or any promise made,

for the benefit of the principal debtor, may be a sufficient consideration to the
surety for giving the guarantee.

Illustrations

(a) B requests A to sell and deliver to him goods on credit. A agrees to do

so, provided C will guarantee the payment of the price of the goods. C promises
to guarantee the payment in consideration of A's promise to deliver the goods.
This is a sufficient consideration for C's promise.

(b) A sells and delivers goods to B. C afterwards requests A to forbear to

sue B for the debt for a year, and promises that, if he does so, C will pay for
them in default of payment by B. A agrees to forbear as requested. This is a
sufficient consideration for C's promise.

(c) A sells and delivers goods to B. C afterwards, without consideration,

agrees to pay for them in default of B. The agreement is void.

128. Surety's liability :_The liability of the surety is co-extensive with that
of the principal debtor, unless it is otherwise provided by the contract.

Illustration

A guarantees to B the payment of a bill of exchange by C, the acceptor.

The bill is dishonoured by C. A is liable not only for the amount of the bill but
also for any interest and charges which may have become due on it.

129. Continuing guarantee :_ A guarantee which extends to a series of

transactions, is called, a "continuing guarantee".

Illustrations

(a) A, in consideration that B will employ C in collecting the rent ofB's

zamindari, promises B to be responsible, to the amount of 5,000 rupees, for the
due collection and payment by C of those rents. This is a continuing guarantee.

(b) A guarantees payment to B, a tea-dealer, to the amount of œ 100, for

any tea he may from time to time supply to C. B supplies C with tea above the
value of œ 100, and C pays B for it. Afterwards, B supplies C with tea to the
value of œ 200. C fails to pay. The guarantee given by A was a continuing
guarantee, and he is accordingly liable to B to the extent of œ 100.

(c) A guarantees payment to B of the price of five sacks of flour to be

delivered by B to C and to be paid for in a month. B delivers five sacks to C. C
pays for them. Afterwards B delivers four sacks to C, which C does not pay for.
The guarantee given by A was not a continuing guarantee, and accordingly he is
not liable for the price of the four sacks.
 28

130. Revocation of continuing guarantee :_ A continuing guarantee may at

any time be revoked by the surety, as to future transactions, by notice to the
creditor.

Illustrations

(a) A, in consideration of B's discounting at A's request, bills of exchange

for C, guarantees to B, for twelve months, the due payment of all such bills to
the extent of 5,000 rupees. B discounts bills for C to the extent of 2,000 rupees.
Afterwards, at the end of three months, A revokes the guarantee. This
revocation discharges A from all liability to B for any subsequent discount. But A
is liable to B for the 2,000 rupees, on default of C.

(b) A guarantees to B, to the extent of 10,000 rupees, that C shall pay all
the bills that B shall draw upon him. B draws upon C. C accepts the bill. A gives
notice of revocation. C dishonours the bill at maturity, A is liable upon his
guarantee.

131. Revocation of continuing guarantee by surety's death

133. Discharge of surety by variance in terms of contract:

134. Discharge of surety by release or discharge of principal debtor :_ The

surety is discharged by any contract between the creditor and the principal
debtor, by which the principal debtor is released, or by any act or omission of the
creditor, the legal consequence of which is the discharge of the principal debtor.

Illustrations

(a) A gives a guarantee to C for goods to be supplied by C to B. C supplies

goods to B, and afterwards B becomes embarrassed and contracts either his
creditors (including C) to assign to them his property in consideration of their
releasing him from their demands. Here B is released from his debt by the
contract with C, and A is discharged from his suretyship.

135. Discharge of surety when creditor compounds with, gives time to, or
agrees not to sue, principal debtor.

136. Surety not discharged when agreement made with third person to
give time to principal debtor.

140. Rights of surety on payment or performance.

141. Surety's right to benefit of creditor's securities.

145. Implied promise to indemnify surety :_ In every contract of

guarantee there is an implied promise by the principal debtor to indemnify the
surety, and the surety is entitled to recover from the principal debtor whatever
sum he has rightfully paid under the guarantee, but no sums which he has paid
wrongfully. Illustrations

(a) B is indebted to C, and A is surety for the debt. C demands payment

from A, and on his refusal sues him for the amount. A defends the suit, having
reasonable grounds for doing so, but he is compelled to pay the amount of the
debt with costs. He can recover from B the amount paid by him for costs, as well
as the principal debt.

146. Co-sureties liable to contribute equally.

148. "Bailment", "bailor" and "bailee" defined :_ A "bailment" is the

delivery of goods by one person to another for some purpose, upon a contract
that they shall, when the purpose is accomplished, be returned or otherwise
 29

disposed of according to the directions of the person delivering them. The person
delivering the goods is called the "bailor". The person to whom they are
delivered is called the "bailee".

Explanation :_If a person already in possession of the goods of another

contracts to hold them as a bailee, he thereby becomes the bailee, and the
owner becomes the bailor of such goods, although they may not have been
delivered by way of bailment.

149. Delivery to bailee how made:_The delivery to the bailee may be

made by doing anything which has the effect of putting the goods in the
possession of the intended bailee or of any person authorised to hold them on
his behalf.

150. Bailor's duty to disclose faults in goods bailed:_The bailor is bound to

disclose to the bailee faults in the goods bailed, of which the bailor is aware, and
which materially interfere with the use of them, or expose the bailee to
extraordinary risks; and if he does not make such disclosure, he is responsible
for damage arising to the bailee directly from such faults.If such goods are bailed
for hire, the bailor is responsible for such damage, whether he was or was not
aware of the existence of such faults in the goods bailed.

172. "Pledge", "pawnor", and "pawnee" defined :_ The bailment of goods

as security for payment of a debt or performance of a promise is called "pledge".
The bailor is in this case called the "pawnor". The bailee is called the "pawnee".
Under the Indian law the railway receipts are equated with the goods
covered by them for the purpose of constituting delivery of goods
within the meaning of the Contract Act. It is clear from a consideration
of the relevant provisions of S. 178, Contract Act, S. 137, Transfer of
Property Act, 1882 and S. 2(4), Sale of Goods Act, 1930, that railway
receipts are documents of title and the goods covered by the
documents can be pledged by transferring the documents. The three
transactions, namely (1) the advancing of loan, (2) the execution of
the promissory note and (3) the endorsement of the railway receipts,
together formed one transaction. Their combined effect was that the
Bank would be in control of the goods till the debt was discharged.
Such a transaction was a pledge.
182. "Agent" and "principal" defined :_ An "Agent" is a person employed
to do any act for another, or to represent another in dealing with third persons.
The person for whom such act is done, or who is so represented, is called the
"principal".

183. Who may employ agent :_ Any person who is of the age of majority
according to the law to which he is subject, and who is of sound mind, may
employ an agent.

184. Who may be an agent :_ As between the principal and third persons,
any person may become an agent, but no person who is not of the age of
majority and of sound mind can become an agent, so as to be responsible to his
principal according to the provisions in that behalf herein contained.

215. Right of principal when agent deals, on his own account, in business
of agency without principal's consent:
 30

SPECIFIC RELIFE ACT, 1963

DEFINITIONS & IMPORTANT PROVISIONS

Sec. 2 – Definitions

(a)‘Obligation’ includes every duty enforceable by law.

‘Settlement’ means an instrument (other than a will or codicil) whereby the

destination or devolution of successive interests in movable or immovable
property is disposed of or is agreed to be disposed of.

Sec. 4: – Specific relief can be granted only for the purpose of enforcing
individual civil rights and not for the mere purpose of enforcing a penal law.

Specific Relief Act, 1963, enumerates the different kinds of specific reliefs
dealt in the Act, these are as follows:
1. By taking possession of certain property and delivering it to do., i.e.
recovery of possession of property: Sections – 5, 6, 7 & 8:
2. By ordering a party to the very act which he is under an obligation to do.,
i.e. specific performance of contracts – Sections 10 to 14:
3. By preventing a party from doing that which he is under an obligation not
to do. This is called preventive relief i.e. injunctions – Sections 36 to 42.
4. By determining and declaring the rights of parties otherwise than by an
award of com0pensation i.e. Declaratory decrees – Sections 34 and 35.
5. Rectification of instruments – Section 26:
6. Rescission of contracts – Sections 27 to 30.
7. Cancellation of instruments – Sections 31 to 33.
Recovery of Immovable property: S.5& 6:
Sec.5 – Recovery of Specific immoveable property: A person entitled to the
possession of specific immoveable property may recover it in the manner
provided by the Code of Civil Procedure, 1908.

Sec. 6 – Suit by person dispossessed of immoveable property: (1) if any person

is dispossessed without his consent of immovable property otherwise than in due
course of law, he or any person claiming through him may, by suit, recover
possession thereof, notwithstanding any other title that may be set up in such
suit. (2) No suit shall be brought after expiry of 6 months from the date of
dispossession or against the Government (3) No appeal shall lie from any order
or decree passed in any suit instituted under this section nor shall any review of
any such order or decree be allowed (4) Nothing in this section shall bar any
person from suing to establish his title to such property and to recover
possession thereof.
Recovery of Specific Movable property: S.7 & 8:
Sec.7 – Recovery of specific moveable property: A person entitled to the
possession of specific moveable property may recover it in the manner provided
by the CPC.

Sec.8 – Liability of person in possession not as owner to deliver to persons

entitled to immediate possession : Any person having the possession or control
of the particular article of moveable property, of which he is not the owner, may
be compelled specifically to deliver it to the person entitled to its immediate
possession in – thing held by agent or trustee; compensation in money would
not be adequate; difficult to ascertain the actual damage; thing wrongfully
transferred.

Sec.9: Defences respecting suits for relief based on contract: Except as

otherwise provided herein, where any relief is claimed under this Chapter in
respect of a contract, the person against whom the relief is claimed may plead
 31

by way of defence any ground which is available to him under any law relating to
contracts.

Specific performance of contracts – Sections 10 to 14:

Sec. 10 – Cases in which specific performance of contract enforceable – Except
as otherwise provided in Chapter-II of the Act, the specific performance of any
contract may, in the discretion of the Court, be enforced (a) when there exists
no standard for ascertaining actual damage caused by the non-performance of
the act agreed to be done; or (b) when the act agreed to be done is such that
compensation in money for its non-performance would not afford adequate
relief.

Sec. 11: Cases in which specific performance of contracts connected with trusts
enforceable.
Sec. 12 – Specific performance of part of contract:
Sec.13 – Rights of purchaser or lessee against person with no title or
imperfect title – Where a person contracts to sell or let certain immovable
property or movable property having no title or only an imperfect title, the
purchaser or lessee has the following rights, (1) if the vendor or lessor has
subsequently acquired any interest in the property the purchaser or lessee may
compel him to make good the contract out of such interest (2) where the
concurrence of other persons is necessary for validating the title and they are
bound to concur at the request of the vendor or lessor, the purchaser or lessee
may compel him to procure such concurrence and when a conveyance by other
persons is necessary to validate the title and they are bound to convey at the
request of the vendor or lessor, the purchaser or lessee may compel him to
procure such conveyance. (3) where the vendor profess to sell unencumbered
property, but the property is mortgaged for an amount not exceeding the
purchase money and the vendor has in fact only a right to redeem it, the
purchaser may compel him to redeem the mortgage and to obtain a valid
discharge, and, where necessary, also a conveyance from the mortgagee (4)
where the vendor or lessor sues for specific performance of contract and the suit
is dismissed on the ground of his want of title or imperfect title, the defendant
has a right to a return of his deposit, if any, with interest thereon, to his costs of
the suit, and to a lien for such deposit, interest and costs on the interest, if any,
of the vendor or lessor in the property which is the subject matter of the
contract.

Sec. 14 – The following contracts cannot be specifically enforced, (1) a contract

for the non-performance of which compensation in money is an adequate relief
(2) a contract which runs into such minute or numerous details (3) a contract
which is in its nature determinable (4) a contract the performance of which
involves the performance of a continuous duty which the court cannot supervise.

Sec. 24 – The dismissal of a suit for specific performance of a contract or part

thereof shall bar the plaintiff’s right to sue for compensation for the breach of
such contract or part, as the case may be, but shall not bar his right to sue for
any other relief to which he may be entitled, by reason of such breach.

Sec. 31 – Any person against whom a written instrument is void or voidable,

may sue to have it adjudged void or voidable and the Court may, in its
discretion, so adjudge it and order it to be delivered up and cancelled.

Sec. 34 – Discretion of Court as to declaration of statutes of right: Suit for

declaration of title. Provided, Court shall make any such declaration where the
plaintiff, being able to seek further relief than a mere declaration of title, omits to
do so.
 32

Injunctions: S.36 to 42:

Sec. 36 – Preventive relief, how granted: Preventive reliefs are granted at
the discretion of the Court by injunction, temporary or perpetual and are
regulated by the Code of Civil Procedure, 1908.

Sec. 37 – Temporary and Perpetual injunctions: (1) Temporary injunctions

are such as are to continue until a specific time or until the further order of the
Court and they may be granted at any stage of a suit (2) A perpetual injunction
can only be granted by the decree made at the hearing and upon the merits of
the suit.

Sec. 38 – Perpetual injunction when granted – A perpetual injunction may

be granted to the plaintiff to prevent the breach of an obligation existing in his
favour, whether expressly or by implication.

Sec. 39 – Mandatory injunction – When, to prevent the breach of an

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

Sec. 40 – The Court may, if it thinks fit, grant damages in lieu of or in addition
to injunction.

Sec. 41 – Injunction when refused – An injunction cannot be granted:

1. To restrain any person from prosecuting a judicial proceeding unless such
restraint is necessary to prevent a multiplicity of proceedings,
2. to restrain any person from instituting or prosecuting any proceeding in a
Court not subordinate to that from which the injunction is sought,
3. to restrain any person from applying to any legislative body,
4. to restrain any person from instituting or prosecuting in a criminal
matter,
5. to prevent the breach of a contract the performance of which would not
be specifically enforced,
6. to prevent on the ground of nuisance an act of which it is not reasonably
clear that it will be a nuisance,
7. to prevent a continuing breach in which the plaintiff has acquiesced,
8. when equally efficacious relief can certainly be obtained by any other
usual mode of proceeding except in case of breach of trust,
9. when the conduct of the plaintiff or his agents has been such as to
disentitle him to the assistance of the court,
10. when the plaintiff has no personal interest in the matter.
***
 33

INDIAN EVIDENCE ACT, 1872

DEFINITIONS AND IMPORTANT PROVISIONS

Indian Evidence Act was drafted by Sir James F.Stephen. The law of
evidence consists of legal rules of evidence. ‘Self regarding’ statements can be
self-serving or self-harming. Self-harming statement is admissible but a self-
serving statement is not generally admissible. In the law of evidence, as a
general rule, opinion is whether on a matter of fact or law is irrelevant. This Act
applies to judicial proceedings in Courts. Law of evidence is lexfori and an
adjective law. Facts can be physical as well as psychological facts. Under the
Evidence Act, fact means both ‘factum probandum and factum probans’. Fact in
issue mans, fact existence or non-existence of which is admitted by the parties.
Evidence under the Indian Evidence Act means and includes both the ocular and
documentary evidence.
Proof of fact depends on not upon the accuracy of the statement but
upon the probability of its existence. Standard of proof in criminal cases is much
higher than in civil cases. Presumptions under the law of evidence are
presumption of facts and presumptions of law. Propositions under Evidence Act
are presumptions of facts are rebuttable and presumption of law can be either
rebuttable or irrebuttable. Relevancy is question of law and can be raised at
anytime.

PART-I - Relevancy of facts (Sec. 1-55)

Chapter-I: Sections 1 to 4:
Sec.3 – Definitions
‘Court’ includes all Judges and Magistrates, and all persons, except arbitrators,
legally authorized to take evidence.
‘Fact’ means and includes (1) anything, state of things, or relation of things,
capable of being perceived by the senses (2) any mental condition of which any
person is conscious.

‘Relevant’ one fact is said to be relevant to another when the one is connected
with the other in any of the ways referred to in the provisions of this Act relating
to relevancy of facts.

‘Facts in issue’ means and includes any fact from which, either by itself or in
connection with other facts, the existence, non-existence, nature or extent of
any right, liability, or disability asserted or denied in any suit or proceeding.
Explanation – Whenever, under the provisions of the law for the time being in
force relating to civil procedure code, any court records an issue of fact, the fact
to be asserted or denied in the answer to such issue is a fact in issue.

‘Document’ means any matter expressed or described upon any substance by

means of letters, figures or marks, or by more than one of those means,
intended to be used, or which may be used for purpose of recording that matter.

‘Evidence’ means (1) all statements which the court permits or requires to be
made before it by witnesses, in relation to matters of fact under inquiry (oral
evidence) (2) all documents produced for the inspection of the court
(documentary evidence).

‘Proved’ - A fact is said to be proved when after considering the matters before
it, the Court either believes it to exist or considers its existence so probable that
a prudent man ought, under the circumstances of particular case, to act upon
the supposition that it exists.
 34

‘Disproved’ - A fact is said to be disproved when after considering the matters

before it, the Court either believes that it does not exist or considers its non-
existence so probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it does not exist.

‘Not proved’ - A fact is said to be not proved when it is neither proved nor
disproved.

Sec.4 – ‘May presume’ – Whenever it is provided by this Act that the Court
may presume a fact, it may either regard such fact as proved unless and until it
is disproved, or may call for proof of it.

‘Shall presume’ – Whenever it is directed by this Act that the Court shall
presume a fact, it shall regard such fact as proved, unless and until it is
disproved.

‘Conclusive proof’ – When one fact is declared by this Act to be conclusive

proof of another, the Court shall, on proof of one fact, regard the other as
proved, and shall not allow evidence to be given for the purpose of disproving it.

Chapter-II: S.5 to 55:

Sec. 5 –Evidence may be given of facts in issue and relevant facts:
Evidence may be given of the existence or non-existence of every fact in issue
and of such other facts as are declared to be relevant.

Sec.6: Relevancy of facts forming part of same transaction: The facts

which form part of the same transaction are relevant, though not in issue and
may have occurred at the same time and place or at different times and places.

Sec.8: Motive, preparation, and previous or subsequent conduct: – Any

fact is relevant which shows or constitutes a motive, preparation and previous or
subsequent conduct.

Sec. 9: Facts necessary to explain or introduce relevant facts: Facts

necessary to explain or introduce a fact, facts which support or rebut an
inference suggested by a fact in issue, facts which establish the identity of any
thing or person whose identity is relevant, facts which show the relation of
parties by whom any such fact was transacted, are relevant in so far as they are
necessary for that purpose. (Identification parade)

Sec.10: Things said or done by conspirator in reference to common

design: Where there is reasonable ground to believe that two or more persons
have conspired together to commit an offence or an actionable wrong, anything
said done or written by any one of such persons in reference to their common
intention after the time when such intention was first entertained by any one of
them, is a relevant fact as against each of the persons believed to be so
conspiring, as well for the purpose of proving the existence of the conspiracy as
for the purpose of showing that any such person was a party to it.

Sec.11: When facts not otherwise relevant become relevant: – Facts not
otherwise relevant are relevant (1) if they are inconsistent with any fact in issue
or relevant fact (2) if they make the existence or non-existence of any fact in
issue or relevant fact highly probable or improbable.
(Alibi is governed by Section 11 of the Act)

Sec.13: Facts relevant when right or custom is in question: – Transaction

and instances relating to a right or custom are relevant. It applies to both
corporal and incorporeal rights. Sec.13 is not confined to public rights and covers
private rights also. Mode of proof of a custom is contained in Sections 32(4),
 35

32(7) and 48 of the Act. (Opinion as to public right, document related to

transaction and opinion as to existence of right or custom respectively)

Sec. 17 – Admission – An admission is a statement, oral or documentary,

which suggests any inference as to any fact in issue or relevant fact.

Sec. 18: Admission by party to proceeding or his agent: – Statements

made by a party to the proceeding or by an agent who is authorized by such
party to make such statement, are admissions.

Sec. 21: Proof of admissions against persons making them and by or on

their behalf: – Admissions cannot be proved by or on behalf of the person who
makes them or by his representative except (1) when it is of such nature that if
the person making was dead, it would be relevant as between third persons
under section 32, (2) when it consists of a statement of existence of any state of
mind or body and is accompanied by conduct rendering its falsehood improbable.
(3) when it is relevant otherwise than as an admission.

Sec. 22: When oral admissions as to contents of documents are

relevant: – Oral admissions as to contents of a document are not relevant
unless it is a secondary document or the genuineness of the document is in
question.

Sec.24: Confession caused by inducement, threat or promise, when

irrelevant in criminal proceeding: – A confession made by an accused
person is irrelevant in criminal proceeding if the making of the confession
appears to the Court to have been caused by any inducement, threat or promise.

Sec.25: Confession to police officer not to be proved: – No Confession to

police officer shall be proved against the maker.

Sec. 26: Confession by accused while in custody of police not to be

proved against him: – No confession made by any person whilst he is in the
custody of police officer shall be proved against him unless it is made in the
immediate presence of a Magistrate.

Sec. 27: How much of information received from accused may be

proved: – Discoveries - When any discovery is made in consequence of
information received from a person accused of an offence, in the custody of a
police officer, it may be proved to the extent of discoveries.
Sec. 31: Admissions not conclusive proof, but, may estop: – Admissions
are not conclusive proof of the matters admitted but they may operate as
estoppel.
Sec. 32: Cases in which statement of relevant fact by person who is
dead or cannot be found, etc., is relevant: – Statements written or verbal of
relevant facts made by a person who is dead (dying declaration) or who
cannot be found, or who has become incapable of giving evidence or whose
attendance cannot be procured without an amount of delay or expense are
themselves relevant facts in the following cases (1) When it relates to cause of
death (2) or is made in the course of business (3) or against interest of maker
(4) or gives opinion as to public right or custom or matters of general interest
(5) or relates to existence of relationship (6) or is made in will or deed relating to
family affairs (7) or in document relating to transaction as to the existence of any
right or custom and (8) or is made by several persons and expresses feelings
relevant to matter in question.

Sec. 33: Relevancy of certain evidence for proving, in subsequent

proceeding, the truth of facts therein stated: – Evidence given by a
witness in a judicial proceeding or before any person authorized by law to take
 36

it, is relevant for the purpose of proving, in a subsequent judicial proceeding or

in a later stage of the same judicial proceeding.
Sec. 45 – Opinions of experts – When a court has to form an opinion upon a
point of foreign law or of science or art or as to identity of handwriting or finger
impressions, the opinions upon that point of person specially skilled in such
foreign law, science or art, or in questions as to identity of handwriting or finger
impressions are relevant facts.

PART-II – PROOF (Sec. 56-100)

Chapter-III: S.56 to 58: Facts which need not be proved:
Sec. 56: Fact judicially noticeable need not be proved: – No fact of which
the Court will take judicial notice need be proved.
Sec.57: Facts of which court must take judicial notice.
Sec. 58 – Facts admitted need not be proved.

Chapter-IV: Oral evidence: S.59 & 60:

Sec. 59: Proof of facts by oral evidence. – All facts except the contents of
documents, may be proved by oral evidence.
Sec. 60 – Oral evidence must be direct.

Chapeter-V: Documentary evidence: S.61 to 90-A:

Sec. 61 – The contents of documents may be proved either by primary or by
secondary evidence.

Sec. 62 – Primary evidence means the document itself produced for the
inspection of the Court.

Sec. 63 – Secondary evidence means and includes certified copies, copies

made from the original by mechanical process, copies made from or compared
with the, counterparts of documents and oral accounts of the contents of a
document given by some person who has himself seen it.

Sec. 68 - If a document is required by law to be attested, it shall not be used as

evidence until one attesting witness at least has been called for proving its
execution.

Sec. 71 – If the attesting witness denies or does not recollect the execution of
the document, its execution may be proved by other evidence.

Sec. 72 – An attested document not required by law to be attested may be

proved as if it was unattested.

Sec. 73 – The Court may direct any person in Court to write any words or
figures for the purpose of enabling the Court to compare the words or figures
alleged to have been written by such person.

Sec. 74 – Public documents – The following documents are public documents,

(1) documents forming the acts, or records of the acts (i) of the sovereign
authority, (ii) of official bodies and Tribunals, and (iii) of public officers,
legislative, judicial and executive. (2) Public records kept in any State of private
documents.

Sec. 75 – Private documents – All other documents are private.

Sec. 76 – Every public officer having the custody of a public document, which
any person has a right to inspect, shall give that person on demand a copy of it
on payment of the legal fees therefor.
 37

Sec. 79 – The court shall presume to be genuine every document purporting to

be a certificate, certified copy of other document which is by law declared to be
admissible as evidence.

Sec. 81 – Presumption as to Gazettes, newspapers, private Acts of Parliament

and other documents.

Sec. 84 – Presumption as to collections of laws and reports of decisions.

Sec. 87 – Presumption as to books, maps and charts.

Sec. 89 – The court shall presume that every document, called for and not
produced after notice to produce, was attested, stamped and executed in the
manner required by law.

Sec. 90 – Presumption as to documents 30 years old. (Presumption can be

raised only with reference to original documents and not copies thereof).

PART-III – PRODUCTION AND EFFECT OF EVIDENCE

Sec. 101 – Burden of proof – Whoever desires any Court to give judgment as
to any legal right or liability dependant on the existence of facts which he
asserts, must prove that those facts exist. When a person is bound to prove the
existence of any fact it is said that the burden of proof lies on that person.

Sec. 102 – The burden of proof in a suit or proceeding lies on that person who
would fail if no evidence at all were given on either side.

Sec. 105 – When a person is accused of any offence, the burden of proving the
existence of circumstances bringing the case within any of the General
Exceptions in the IPC is upon him.

Sec. 106 – When any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him.

Sec. 107 – When the question is whether a man is alive or dead, and it is shown
that he was alive within 30 years, the burden of proving that he is dead is on the
person who affirms it.

Sec. 108 – When the question is whether a man is alive or dead, and it is
proved that he has not been heard of for 7 years the burden of proving that he
is alive is shifted to the person who affirms it.

Sec. 112 – Birth during marriage, conclusive proof of legitimacy – The

fact that any person was born during the continuance of valid marriage between
his mother and any man, or within 280 days after its dissolution the mother
remaining unmarried, shall be conclusive proof of that he is the legitimate son of
that man unless it can be shown that the parties to the marriage had no access
to each other at any time when he could have been begotten.

Sec. 113-A – Presumption as to abetment of suicide by a married

woman – When the question is whether the commission of suicide by a woman
had been abetted by her husband or any relative of her husband and it is shown
that she had committed suicide within a period of 7 years from the date of her
marriage and that her husband or such relative of her husband had subjected
her to cruelty, the court may presume, having regard to all other circumstances
of the case that such suicide had been abetted by her husband or by such
relative of her husband.
 38

Sec. 113-B – Presumption as to dowry death – When the question is

whether a person has committed the dowry death of a woman and it is shown
that soon before her death such woman had been subjected by such person to
cruelty or harassment for, or in connection with, any demand for dowry, the
court shall presume that such person had caused the dowry death.

Sec. 114 – Court may presume existence of certain facts which it thinks likely to
have happened regard being had to the common course of natural events,
human conduct and public and private business.

Sec. 114-A – Presumption as to absence of consent in certain

prosecutions of rape – In a prosecution for rape where sexual intercourse by
the accused is proved and the question is whether it was without the consent of
the woman alleged to have been raped and she states in her evidence before the
Court that she did not consent, the Court shall presume that she did not consent.
(Evidence of prosecutrix)

Sec. 115 – Estoppel – When one person has, by his declaration, act or
omission, intentionally caused or permitted another person to believe a thing to
be true and to act upon such belief, neither he nor his representative shall be
allowed, in any suit or proceeding between himself and such person or his
representative, to deny the truth of that thing.

Sec. 118 – Who may testify – All persons shall be competent to testify unless
the Court considers that they are prevented from understanding the questions
put to them, or from giving rational answers to those questions, by tender years,
extreme old age, disease, whether of body or mind, or any other cause of the
same kind.
Sec.119: Dumb witness

Sec. 121 – No judge or Magistrate shall, except upon the special order of some
court to which he is subordinate, be compelled to answer any question as to his
own conduct in court as such Judge or Magistrate.

Sec. 132 – A witness shall not be excused from answering any question on the
ground that the answers incriminate him.

Sec. 133 – Accomplice – An accomplice shall be a competent witness against

an accused person, and a conviction is not illegal merely because it proceeds
upon the uncorroborated testimony of an accomplice.

Sec. 137 – Examination in chief – The examination of a witness by the

party who calls him shall be called his examination in chief.
Cross-examination – The examination of a witness by the adverse
party shall be called his cross-examination.
Re-examination – The examination of a witness, subsequent to the
cross-examination by the party who called him, shall be called his re-
examination.
Sec.138: Order of examination: chief, cross & re-examination.
Sec. 139 – A person summoned to produce a document does not
become a witness by the mere fact that he produces it, and cannot be
cross-examined unless and until he is called as a witness.

Sec. 141 – Leading questions – Any question suggesting the answer

which the person putting it wishes or expects to receive is called a
leading question.
 39

Sec. 142 – Leading questions must not, if objected to by the adverse party, be
asked in examination in chief, or in a re-examination, except with the permission
of the Court.

Sec. 143 – Leading questions may be asked in cross-examination.

Sec. 151 – The Court may forbid any questions or inquiries, which it regards as
indecent or scandalous.

Sec. 152 – The court shall forbid any question, which appears to it to be
intended to insult or annoy.

Sec. 154 – Hostile witness – The court may, in its discretion, permit the
person who calls a witness to put any questions to him which might be put in
cross-examination by the adverse party.

Sec. 157 – In order to corroborate the testimony of a witness, any former

statement made by such witness relating to the same fact at or about the time
when the fact took place, or before any authority legally competent to
investigate the fact, may be proved.

Sec. 159 – A witness may, while under examination, refresh his memory by
referring to any writing made by himself at the time of transaction. He may also
refer to any such writing made by any other person.

Sec. 167 – No new trial for improper admission or rejection of evidence.

 40

CODE OF CRIMINAL PROCEDURE

Introduction:
 Criminal procedure code provides the procedure to be followed in every
investigation, every enquiry into any offence and every trial of any
offence.
 It is concurrent list and not unduly rigid and makes room for any special
law and procedure and generally gives precedence to such special law
and procedure.
 It is mainly, though not punitive and an adjective or procedural and there
are also certain provisions which are partly in the nature of substantive
law.
 It contains cognizable and non-cognizable offences; bailable and non-
bailable offences; summons cases & warrants cases in the 1 st Schedule.
 Cognizable offence has been defined under Section 2(c) and in a
cognizable case, the police has the authority to arrest a person without
warrant and authority to investigate the offence without permission of
the Magistrate.
 Non-cognizable offence has been defined under Sec.2(l). In a non-
cognizable case, the police has the authority of neither to investigate
without order of the Magistrate nor can arrest the accused without
warrant.
Criminal Procedure Code provides the procedure to be followed in every
investigation of any offence, every enquiry into any offence and every trial of any
offence. It is a subject of concurrent list. It is not unduly rigid and makes room
for any special law & procedure and generally gives precedence to such special
law and procedure.

What is true of Code of Criminal Procedure? It is mainly, though not purely

of adjective or procedural law. There are also certain provisions, which are partly
in the nature of substantive law.

Classifications of offences are bailable & non-bailable; cognizable and non-

cognizable has been given in the Code of Criminal Procedure under the 1 st
Schedule.
1. Summons cases, where the punishment is two years are below and
warrant cases above 2 years punishment.
2. Cognizable offences not less than 3 years or above. Non cognizable –
bailable below 3 years punishment. Offences are bailable where
punishment 3 years or below. Non-bailable offences punishment 3 years
and more.
Chapter-I: S.1 to 6:
1. Preliminary, 2.definitions, 3.construction of reference, 4.Trial of offences
under the Indian Penal Code and other laws, 5.Saving.

Sec. 2.
a) Bailable Offence: An offence which is shown as bailable in the first
schedule or which is made bailable by any other law for the time being in
force; and non bailable offence means any other offence.
b) Charge: It includes any head of charge when the charge contains more
heads than one.
c) Cognizable offence: an offence for which a police officer may in
accordance with arrest without warrant.
d) Complaint: Any allegation made orally or in writing to a Magist4rate,
with a view to his taking action under this code, that some person,
whether known or unknown, has committed an offence, but it does not
include a police report. However, a report made by a police officer in a
 41

case which discloses, after investigation, the commission of a non-

cognizable offence shall be deemed to be a complaint; and the police
officer by whom such report is made be deemed to be the compliant.
g) Inquiry: means every inquiry, other than a trial, conducted under this
Code by a Magistrate or Court.
h) Investigation: It includes all the proceedings under this Code for the
collection of evidence conducted by a police officer or by any person
(other than a Magistrate) who is authorized by a Magistrate in this
behalf.
l) Non-cognizable offence: Means an offence for which, a police officer
has no authority to arrest without warrant.
n) Offence: Any act or omission made punishable by law and includes any
act in respect of which a complaint may be made under Sec. 20 of the
Cattle Trespass Act, 1871.
r) Police report: Means a report forwarded by a police officer to a
Magistrate under Sec. 173(2) of the Code.
u) Public Prosecutor: Any person appointed under Section 24 and
includes any person acting under the directions of a Public Prosecutor.
w) Summons Case: means a case relating to an offence and not being a
warrant case.
Warrant case: A case relating to an offence punishable with death,
imprisonment for life or imprisonment for a term exceeding two years.
Chapter-II: S.6 to 25: Constitution of Criminal Courts and Offices: The
Supreme Court of India and a High Court for each State have been created by
the constitution and their jurisdiction, powers, in respect of criminal matters are
well defined in the Constitution itself. The Criminal Procedure 1973 makes a
provision for appeal to the Supreme Court under certain circumstances. Sec.6 of
the Code also makes a provision for Constitution of other criminal courts such as
Court of Sessions, Judicial Magistrate of First Class and in metropolitan areas
Metropolitan Magistrate, Judicial Magistrates of the Second Class and Executive
Magistrates.
Any area in the State comprising a city or town, whose population
exceeds one million shall be a metropolitan area for the purpose of this Code
under Section 8. Judicial Magistrate of the first Class in Metropolitan area is
called Metropolitan Magistrate. For the Courts of Judicial Magistrate a
Metropolitan Magistrate, Assistant Sessions Judge is the Chief Judicial
Magistrates. In metropolitan area Sessions Court is known as Metropolitan
Sessions Court and one among them function as a Chief Metropolitan Sessions
Judge.

Chapter-.III: S.26 to 35: Powers of the Courts:

S.26: Subject to the other provisions of the code any offences under the IPC may
be tried by the High Court or the Court of Sessions or any other court by which
such offence is shown in the first schedule to be triable:
S.27: Courts by which offences are triable: In case of Juvenile offenders (who is
under the age of sixteen years) any offence not punishable with death or
imprisonment for life, may be tried by the Court of a Chief Judicial Magistrate, or
by other Court empowered by law providing for the treatment, training and
rehabilitation
S.28: Sentences which High Courts and Sessions Judges may pass:
1. Supreme Court or High Court: Any sentence authorized by law.
2. Sessions or Additional Sessions Judge, Any sentence authorized by law
( in case of sentence of death, subject to confirmation by High Court).
3. Assistant Sessions judge: Imprisonment up to 10 years or and fine.
 42

Sec. 29: Sentences, which Magistrates may pass:

(1) The Court of a Chief Judicial Magistrate may pass any

sentence authorized by law except a sentence of death or
of imprisonment for life or of imprisonment for a term
exceeding seven years.
(2) The Court of a Magistrate of the First Class may pass a
sentence of imprisonment for a term not exceeding three
years, or of fine not exceeding five thousand rupees or
both.
(3) The Court of a Magistrate of Second Class may pass a sentence
of imprisonment for a term not exceeding one year, or of fine not
exceeding one thousand rupees or both.
(4) The Court of a Chief Metropolitan Magistrate shall have the
powers of the Court of a Chief Judicial Magistrate and that of
Metropolitan Magistrate, the powers of the Court of a Magistrate
of the first class.

Sec.30: Sentence of imprisonment in default of fine: The Court of Magistrate

can award sentence of imprisonment in default of payment of fine not exceeding
one-fourth of the term of imprisonment which he is competent to inflict as
substantive sentence. The imprisonment in default of fine shall be in addition to
the substantive sentence maximum awardable under Section 29 without any
specific order.
S.31: Sentence in cases of conviction of several offences at one trial: Where an
accused is convicted of two or more offences at one trial, the Court may pass
separate sentences, subject to the provisions of Sec.71 IPC.( limit of punishment
of offence made up of several offences)

Chapter-IV: S.36 to 40:Powers of Superior Officers of Police.

S.36: Powers of superior officers of police
S.37: Public when to assist Magistrates and police
S.38: Aid to person, other than police officer, executing warrant

Chapter V: Arrest of persons: S.41 to 60

S.41: When police may arrest without warrant
S.42: Arrest on refusal to give name and residence
S.55: Procedure when police officer deputes subordinate to arrest without
warrant
S.43: Arrest by private person and procedure on such arrest
S.44: Arrest by Magistrate
S.46: Arrest how made
S.49: No unnecessary restrain
S.50: Person arrested to be informed of grounds
of arrest and of right to bail
S.151: preventive arrest
S.432(3): after completion of the period of suspension of sentence.
Rights of arrested person:
S.53: Examination of accused by medical practioner
at request of police officer.
S.54: Examination of arrested person by medical practitioner at the request of
the arrested person
S.56: Person arrested to be taken before Magistrate or Officer in charge of police
station.
S. 59: Discharge of person apprehended.
 43

Arrest means total restrain and complete deprivation of liberty. A warrant of

arrest is a command, must be a written order, signed, sealed & issued by a
Magistrate addressed to a police officer. A person can be arrested without
warrant for securing attendance of accused at trial, as a preventive or
precautionary measure or for obtaining correct name & address. A Police Officer
or Magistrate or private person can arrest a person.
A person can be arrested without warrant or with warrant. Arrests can be
broadly classified viz.
1. Arrest under warrant issued by a Court.
2. Arrest otherwise than under such warrant.
Sec.41 Cr.P.C., sets out 9 different circumstances in which a police officer
may, without an order from a Magistrate and without warrant, arrest a person.
Sec.41(2), 42, 151 and 432(3) Cr.P.C., confers similar powers on police
officers.
Section 55 of Cr.P.C. empowers an officer in-charge of a police station or
police officer making an investigation require his subordinate to arrest without a
warrant.
Sec.43 specifies about the arrest of persons by private persons.
Sec.44 specifies about the arrest of persons by Magistrates.
Rights of an arrested person:
Production of the arrested person within 24 hours before the Magistrate
and his remand to custody under Sections 56, 57, 76, 80, 167(1) of Cr.P.C. and
Article 22(2) of the Constitution of India. Sec.57 Cr.P.C specifies the inner limit
for the production of arrested person within the reasonable time and outer limit
of 24 hours.
Police and Magistrate must inform the arrested person is right toget legal
aid and medical assistance as per Sec.54 of Cr.P.C. ( Sheela Barse Vs. State of
Maharashtra 1983 Crl.L.J.642 SC)
There should not be any unnecessary restraint to the arrested person as
per Sec.49 of Cr.P.C. No hand cuffs be used against the arrestee except as
declared by the Apex Court in Prem Shankar Sukla Vs. Delhi Administration –
1980 Crl.L.J.930 SC.
Apart from these rights the arrested person is entitled so many other
rights. The Supreme Court as envisaged the requirements to be followed by the
police and other agencies in a land mark judgment D.K.Basu Vs. State of West
Bengal.
Chapter-VI: S.61 to 90: Process to compel Appearance:
S.61 to 69: Summons
S.70 to 81: Warrant of Arrest
S.82 to 86: Proclamation & Attachment
A proclamation under Section 82 Cr.P.C can be issued against a person
against whom a warrant has been issued. Thus, a proclamation can be issued
against accused offender or a surety or a witness. Giving not less than 30 days
time to the person concerned must publish a proclamation requiring a person to
appear. Attachment of the property of the person absconding can be issued
simultaneously with the issue of proclamation. Period of limitation for filing
claims and objections to the attachment of any property attached under Section
83 by any person other than the proclaimed person, as provided under Sec.84
of Cr.P.C. within six months from the date of attachment. If the person
proclaimed appears within the period specified in the proclamation, the property
attached shall be released from attachment.
If the proclaimed person does not appear within the time specified in the
proclamation, the property under attachment shall not be sold until expiry of six
months from the date of attachment and shall not be sold until any claim or
objection under Section 84 have been disposed of. A proclaimed person whose
property has been attached can claim the property or the sale proceeds, on
appearance within 2 years of attachment.
 44

Sec. 82: Proclamation for person absconding:

(1) If any Court has reason to believe (whether after taking evidence or not) that
any person against whom a warrant has been issued by it has absconded or is
concealing himself so that such warrant cannot be executed, such Court may
publish a written proclamation requiring him to appear at a specified place and
time not less than 30 days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows:
(i) (a) It shall be publicly read in some conspicuous place of the town or village
in which such person ordinarily resides. (b) it shall be affixed to some
conspicuous part of the house or homestead in which such person ordinarily
resides or to some conspicuous place of such town or village; (c) A copy thereof
shall be affixed to some conspicuous part of the house.
(ii) The court may also, if it thinks fit, direct a copy of the proclamation to be
published in a daily newspaper circulating in the place in which such person
ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation to the effect
that the proclamation was duly published on a specified day, in the manner
specified above, shall be conclusive evidence that the requirements of this
section have been complied with, and that the proclamation was published on
such day.
Sec. 83: Attachment of property of person absconding: (1) The court
issuing a proclamation under Section 82 of the Code may, for reasons to be
recorded in writing, at any time after the issue of the proclamation, order the
attachment of any property, moveable or immoveable or both belonging to
proclaimed person. Provided that if the Court is satisfied by an affidavit that (a)
the proclaimed person is about to dispose of the property or any part thereof,
(b) is about to remove the whole or any part of it from the local jurisdiction of
the Court, the Court may order the attachment simultaneously with the issue of
proclamation.
If the property ordered to be attached is a debt or other movable
property, the attachment under this Section shall be made (a) by seizure or (b)
by the appointment of a receiver, or (c) by an order in writing prohibiting the
delivery of such property to the proclaimed person or to any one on his behalf.
If the property ordered to be attached is immovable, the attachment
under this Section shall, in the case of land-paying revenue to the State
Government, be made through the Collector of the District, and in all other
cases:- (a) by taking possession, or (b) by the appointment of a receiver, or (c)
by an order in writing prohibiting the payment of rent on delivery of property to
the proclaimed person or to any one on his behalf,
If the property ordered to be attached consists of livestock or is of a
perishable nature, the Court may, if it thinks it expedient, order immediate sale
thereof, and in such case the proceeds of the sale shall abide the order of the
Court.

S.87 to 90: Other Rules regarding processes

Chapter-VII: Process to compel the Production of Things: Sec.91 to

105:

S.91 & 92: Summons to produce,

S.93 to 98: Search warrants:
Sec.93 deals with when Search warrant may be issued.
S.99 to 105: General provisions relating to searches:
Sec. 91: Summons to produce document or other thing: (1) Whenever
any Court or any officer-in-charge of a police station considers that the
production of any document or other thing is necessary or desirable for the
purposes of any investigation, inquiry, trial or other proceedings under this Code,
such Court may issue a summons to the person in whose possession or power
 45

such document or thing is believed to be, requiring him to attend and produce it
at the time and place stated in the summons.
Sec. 93: When search warrant may be issued: (1) (a) Where any Court has
reason to believe that a person to whom summons addressed will not produce
the document or the thing required, or (b) Where such document or thing is not
known to the Court to be in the possession of any person, or (c) Where the
Court considers that the purposes of any inquiry, trial or other proceedings under
this Court will be served by a general search or inspection, it may issue a search
warrant; and the person to whom such warrant is directed, may search or
inspect in accordance with and the provisions contained therewith. The Court
may, if it thinks fit, specify in the warrant the particular place or part thereof to
which only the search or inspection shall extend; and the person charged with
the execution of such warrant shall then search or inspect only the place or part
so specified.
Sec. 94: Search of place suspected to contain stolen property: (1) If the
Court, upon information and upon such inquiry, has reason to believe that any
place is used for the deposit or sale of stolen property or of any objectionable
property, may by warrant authorize any police officer above the rank of
constable, (a) to enter, with such assistance as may be required, (b) to search
the same in the manner specified in the warrant, (c) to take possession of any
property or article therein found which he reasonably suspects to be stolen
property or objectionable article (d) to convey such property or article before a
Magistrate, or to guard the same on the spot until the offender is taken before a
Magistrate, or to deposit of it in some place of safety, (e) to take into custody
and carry before a Magistrate every person found in such place who appears to
have been privy to the deposit, sale or production of any such property.
Sec. 97: Search for person wrongfully confined: If any Magistrate has
reason to believe that any person is confined under such circumstances that the
confinement amounts to an offence, he may issue a search warrant and the
person to whom such warrant is directed may search for the person so confined,
and such search shall be made in accordance therewith and the person if found
shall be immediately taken before a Magistrate, who shall make such order as in
the circumstances of the case seems proper.

Search without warrant:

Sec.100(4): Joining of two or more independent and respectable inhabitants of
the locality in which the place is to be searched is the mandate.
Sec.102: The power of police officer to seize the property which commission of
any offence. Two conditions to be fulfilled: (1) It must be a property (2) property
is suspected, stolen and suspicion of offence on it. Precautions: Such police
report to the in charge of P.S., Report to Magistrate, custody of Court, if such
property not movable to any person.
Sec.103: Search can be conducted in the presence of the Magistrate who is
competent to issue search warrant in respect of any place. Search warrant in
respect of a place includes search of a person in or about that place any if such
person is suspected of concealing about his person any article for which search is
being made.
Chapter-VII-A: S.105-A to 105-L: Reciprocal arrangements for assistance in
certain matters and procedure for attachment and forfeiture of property;

Chapter-VIII: S.106 to 124: Security for keeping the peace and for good
behaviour.

Chapter-IX: S.125 to 128: Order for maintenance of Wives, Children and

Parents:
S.125: Wife, including divorced but not remarried woman; a legitimate or
illegitimate major male child, suffering from physical or mental abnormality; and
a legitimate or illegitimate minor child can claim maintenance. Amount of
maintenance under this Section is without any limit. Wife living in adultery or
 46

living separately by mutual consent cannot claim maintenance. A Magistrate has

the power to grant interim maintenance and the expenses of the proceedings.
Monthly allowance for maintenance or interim maintenance and expenses for
proceedings are payable from the date of the order or from the date of the
application if specifically ordered. Application of interim maintenance can be
decided within 60 days. Imprisonment of the defaulter is the mode of
enforcement only. Limitation for execution of the order of maintenance is one
year from the date on which it becomes due.
S.126: Procedure: Proceedings under Sec.125 can be instituted where the wife is
residing on the date of the application; or where the husband resides or is
residing on the date of the application; or where the husband and the wife last
resided. Sec.127: Monthly allowance or the interim monthly allowance can be
altered.

( full text: Sec. 125: Order for maintenance of wives, children and
parents:
(1) If any person having sufficient means, neglects or refuses to maintain
a) his wife, unable to maintain herself, or
b) his legitimate or illegitimate minor child, whether married or not, unable to
maintain herself, or
c) his legitimate or illegitimate child (not being married daughter) who has
attained majority, where such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or
d) his father or mother, unable to maintain himself or herself
A magistrate of the first class may, upon proof of such neglect or refusal,
order such person to make a monthly allowance for the maintenance of his wife
or such child, father or mother, at such monthly rate not exceeding five hundred
rupees in the whole, as such Magistrate thinks fit.
Provided that the Magistrate may order the father of a minor female child
to make such allowance, until she attains her majority, if the Magistrate is
satisfied that the husband of such minor female child, if married, is not
possessed of sufficient means. Wife includes a woman who has been divorced
by or has obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the order, or, if so ordered, from
the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the
order, the Magistrate may for every breach of the order, issue a warrant for
levying the amount due in the manner provided for levying fines, and may
sentence such person, for the whole or any part of each month’s allowance
remaining unpaid after the execution of the warrant, to imprisonment for a term
which may extend to one month or until payment if sooner made; Provided that
no warrant shall be issued for the recovery unless an application be made to the
Court to levy such amount within a period of one year from the date on which it
became due. Further, if such person offers to maintain his wife on condition of
her living with him, and she refuses to live with him, such Magistrate may
consider any grounds of refusal stated by her and may make an order under this
section notwithstanding such offer, if he is satisfied that there is just ground for
so doing.
(4) No wife shall be entitled to receive an allowance from her husband under
this section if she is living in adultery, or if, without any sufficient reason she
refuses to live with her husband, or if they are living separately by mutual
consent.
(5) On proof that any wife, in whose favour an order has been made under
this section is living in adultery, or that without sufficient reason she refuses to
live with her husband, or that they re living separately by mutual consent, the
Magistrate shall cancel the order.
Sec. 126: Procedure: (1) Proceedings under Sec. 125 may be taken against
any person in any district: and the petition claiming maintenance can be filed at
 47

any place where he resides or where the wife resides or where he last resided
with his wife or as the case may be with the mother of the illegitimate child.
2) All evidence in such proceedings shall be taken in the presence of such
person or when his personal attendance is dispensed with, in the presence of his
pleader. The procedure can be taken as summons case. However, the person,
against whom the order of maintenance is proposed to be made, is avoiding
service, the Court may proceed to hear and determine the case ex parte and any
order so made may be set aside for good reason shown on an application made
within three months from the date thereof subject to such terms including terms
as to payment of costs to the opposite party as the Court thinks fit and proper.
(3) The Court, dealing with this application, has power to make such order as
to costs as may be just.
Sec. 127: Alteration in allowance: (1) On proof of a change in the
circumstance of either of the parties, the Magistrate may make such alteration in
the allowance as he thinks fit. (2) In consequence of any decision by a
competent Civil Court, any order made under Sec. 125 Cr.P.C. should be
cancelled or varied. (3) (a) If the Court satisfied that a woman in whose favour
an order of maintenance has been made, after the date of such divorce got
remarried, cancel such maintenance. (b) if the woman has received any
permanent alimony in accordance with customary law, then also the order may
be cancelled. (3) When the woman voluntarily surrenders her rights to
maintenance after her divorce.)

Chapter-X: Maintenance of Public Order and Tranquility:

S.129 to 132: Unlawful Assemblies
S.133 to 143: Public Nuisance
S.144: Power of issue order in urgent cases of nuisance or apprehended danger.
S.145 to 148: Disputes as to immovable property
Chapter-XI: S.149 to 153: Preventive Action of the Police.
Chapter-XII: S.154 to 176: Information to the Police and their powers to
investigation:
S.154: FIR: Information in cognizable cases
Section 154 of Cr.P.C. lays down that every information relating to a cognizable
offence whether given orally or in writing to an officer in charge of a police
station shall be signed by the person giving it and the officer in charge of the
police station to whom the information is made shall enter the substance of the
information in a book kept by such officer in the police station.
If the information is given orally to the officer in charge of the police
station he shall reduce it to writing or cause it to be reduced under his direction,
it shall be read over to the informant and thereafter it shall be signed by the
person giving it.
A copy of the information relating to cognizable offence recorded by the
police officer shall be given forthwith free of cost to the informant.
Any person aggrieved by refusal on the part of an officer in charge of the
police station to record the information may send the substance of such
information in writing and by post to the Superintendent of police concerned.
If the Superintendent of Police concerned is satisfied that such
information discloses a cognizable offence he shall either investigate the case
himself or direct an investigation to be made by any police officer subordinate to
him.
The informant also can file a complaint in regard to the said cognizable
offence before a magistrate. The magistrate may either take cognizance of the
offence or forward it to the police for investigation.
S.155: Information as to non-cognizable cases and investigation of such cases.
Investigation procedure: Usually a copy of F.I.R is filed with the Magistrate
having jurisdiction to take cognizance, by the police officer in compliance to
Section 157 Cr.P.C.
 48

Sec. 154: First Information in cognizable cases:

(1) Every information relating to the commission of a cognizable offence, if given

orally to an officer-in-charge of a P.S. shall be reduced into writing by him or
under his direction, and be read over to the informant and every such
information, whether given in writing or reduced to writing as aforesaid, shall be
signed by the person giving it, and the substance thereof shall be entered in a
book to be kept by such officer in such form as the Govt. may prescribe in this
behalf.
(2) A copy of the information as recorded above, shall be given forthwith, free of
cost, to the informant.
(3) Any person aggrieved by refusal on the part of an officer-in-charge of a P.S
to record the information referred to above, may send the substance of such
information in writing and by post to the Superintendent of Police concerned,
who, if satisfied that such information discloses the commission of a cognizable
offence, shall either investigate the case himself or direct an investigation to be
made by any police officer subordinate to him in the manner provided by this
Code and such officer shall have all the powers of an officer-in-charge of the
police station in relation to that offence.
The F.I.R. can only be used to corroborate the statement of the maker
under Sec. 157 of Indian Evidence Act or to contradict the same under Sec. 145
of the Evidence Act. The First Information report is not substantive evidence.

Sec. 155: Information as to non-cognizable cases and investigation of

such cases:

(1) When information is given to an officer in charge of P.S. of the commission

within the limits of such station of a non-cognizable offence, he shall enter or
cause to be entered the substance of the information in a book to be kept by
such officer in such form and refer the informant to the Magistrate.
(2) No police officer shall investigate a non-cognizable case without the order of
a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in
respect of the investigation (except the power to arrest without warrant) as an
officer in charge of a P.S. may exercise in a cognizable case.
(4) Where a case relates to two or more officers of which at least one is
cognizable, the case shall be deemed to be a cognizable case, notwithstanding
that the other offences are non-cognizable.

Sec. 156: Police officer’s power to investigate cognizable case:

(1) Any police officer may, without the order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction over the local area within the
limits of such station would have power to inquire into or try the case.
(2) No proceeding of a police officer in any such case shall at any stage be called
in question on the ground that the case was one, which such officer was not
empowered under this section to investigate.
(3) Any Magistrate empowered under Sec. 190 of the Code may order such an
investigation as above mentioned.

Sec. 157: Procedure for investigation: If, from information received or

otherwise, a police officer has reason to suspect the commission of an offence
which he is empowered under Sec. 156 to investigate, he shall forthwith send a
report of the same to a Magistrate empowered to take cognizance of such
offence upon a police report and shall proceed in person and to take measures
for the discovery and arrest of the offender. Provided that
(a) When information as to the commission of any such offence is given against
any person by name and the case is not of a serious nature, the police officer
 49

need not proceed in person or depute a subordinate to make an investigation on

the spot,
(b) If it appears to the police that there is no sufficient ground for entering on an
investigation, he shall not investigate the case.

Section 159: A Preliminary inquiry into the commission of offence can be

conducted by the Magistrate having jurisdiction to take cognizance by any
Magistrate subordinate to the Magistrate having jurisdiction, under the orders of
such Magistrate, when the police decides not to investigate the case.
S.161: Examination of witnesses by police: The investigating police officer has
the power to examine orally any person acquainted with the facts and
circumstances of the case. The expression ‘any person acquainted with the facts
and circumstances of the case’ includes accused. Statements recorded during
investigation can be used during trial for contradicting the witness.
S.162: Statements to police not to be signed, Use of statements in evidence.
A statement of a witness recorded under Sec.161 in writing during
investigation and is signed by the person making the statement is hit by
Sec.161(1) Cr.P.C.
S.164: Recording of confessions and statements in the manner provided in
Section 281. It provides a special procedure for recording of confessions as well
as statement made during the course of investigation. Confessional statement
recorded under this Section can be used as substantive evidence without being
formally proved. Confessional statements can be recorded during the course of
investigation or at any time afterwards before the commencement of inquiry or
trial.
Section 463 Cr.P.C permits oral evidence to prove that the procedure laid
down under Sec.164 had actually been followed, where the record, which ought
to show that, does not do so.
(Sec. 161: Examination of witnesses by police:
(1) Any police officer, making an investigation under this chapter, may examine
orally any person supposed to be acquainted with the facts and circumstances of
the case.
(2) Such person shall be bound to answer truly all questions relating to such
case put to him by such officer.
(3) The police officer may reduce into writing any statement made to him in the
course of an examination under this section.
Sec. 164: Recording of confessions and statements: (1) Any Magistrate of
Judicial I Class may, whether or not he has jurisdiction in the case, record any
confession or statement made to him in the course of an investigation under this
chapter or under any other law for the time being in force, or at any time
afterwards before the commencement of the inquiry or trial;
(2) The Magistrate shall, before recording any such confession, explain to the
person making it that he is not bound to make a confession and that, if he does
so, it may be used as evidence unless, upon questioning the person making it,
he has reason to believe that it is being made voluntarily.
(3) I at any time before the confession is recorded, the person appearing before
the Magistrate states that he is not willing to make the confession, the
Magistrate shall not authorize the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in Sec. 281 for
recording the examination of an accused person and shall, be signed by the
person making the confession; and the Magistrate shall make a memorandum at
the foot of such record.
(5) Any statement other than a confession made shall be recorded in such
manner hereinafter provided for the recording of evidence as is, in the opinion of
the Magistrate, and the Magistrate shall have power to administer oath to the
person whose statement is so recorded.
(6) The Magistrate recording a confession or statement under this section shall
forward it to the Magistrate by whom the case is to be inquired into or tried.
 50

Sec. 165: Search by Police officer: (1) Whenever a police officer making an
investigation has reasonable grounds for believing that anything necessary for
the purposes of an investigation into any offence which he is authorized to
investigate may be found in any place within the limits of the P.S. of which he is
in charge, and that such ting cannot in his opinion be otherwise obtained without
undue delay, such officer may, after recording in writing the grounds of his belief
and specifying in such writing, so far as possible, the thing for which search is to
be made, search, or cause search to be made for such thing in any place within
the limits of such station.
(2) The police officer proceeding under the above sub-section, shall, if
practicable, conduct the search in person.
(3) If he is unable to conduct the search in person, and there is no other person
competent to make the search present at the time, he may, after recording in
writing his reasons for so doing, require any officer subordinate to him to make
the search, and he shall deliver to such subordinate officer an order in writing,
specifying the place to be searched, and so far as possible, the ting for which
search is to be made; and such subordinate officer may thereupon search for
such thing in such place.
(4) The provisions of this Code as to search-warrants and the general provisions
as to searches contained in Sec. 100 shall, so far as may be, apply to a search
made under this section.
(5) Copies of any record made under Sub-Section (1) or (3) shall forthwith be
sent to the nearest Magistrate empowered to take cognizance of the offence,
and the owner or occupier of the place searched shall, on application, be
furnished, free of cost, with a copy of the same by the Magistrate.)

S.167: Procedure when investigation cannot be completed in Twenty four hours:

S.167(2): An accused person can be remanded to police custody or judicial
custody, the authorization of such detention cannot exceed fifteen days at one
time. The nature of custody can be altered from judicial custody to police
custody and vice versa, this alteration can be done during the period of first
fifteen days. For the authorization of detention in any custody the accused must
be produced before the Magistrate. The Magistrate can authorize detention for a
total period of 90 days during investigation, in cases of offences punishable with
death or life or for a term not less than 10 years and less than 10 years etc., the
detention during investigation, can be authorized for a total period of 60 days. If
the investigation is not completed within 90 days or 60 days as the case may be,
and the accused is in custody, on the expiry of said period the accused is entitled
to be released on bail or making an application for release on bail. For the
purpose of commutation of period of 90 or 60 days, the day of arrest of the
accused and the day on which the accused was remanded, both have to be
excluded.
S.167(5) In case triable by a Magistrate as a summons case, the investigation
cannot be continued beyond a period of six months from the date of arrest of
the accused. Such continuation of investigation, beyond the period of six
months, without the previous permission of the Magistrate shall not render the
entire investigation bad, but the prosecution cannot rely on the investigation so
carried out and the evidence so collected shall not be admissible.
Sec. 167: Procedure when investigation cannot be completed in 24
hours: (1) Whenever any person is arrested and detained in custody, and it
appears that the investigation cannot be completed within the period of 24 hours
fixed by Sec. 57, and there are grounds for believing that the accusation or
information is well-founded, the police officer shall forthwith transmit to the
nearest Judicial Magistrate a copy of the entries in the diary and shall at the
same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section
may, whether he has or has not jurisdiction to try the case, from time to time to
authorize the detention of the accused in such custody as such Magistrate thinks
 51

fit, for a term not exceeding 15 days in the whole; and if he has no jurisdiction
to try the case or commit it for trial, and considers further detention necessary,
he may order the accused to be forwarded to a Magistrate having such
jurisdiction.
Provided that:
(a) The Magistrate may authorize the detention of the accused person, otherwise
than in the custody of the Police, beyond the period of 15 days if he is satisfied
that adequate grounds exist for doing so but no Magistrate shall authorize the
detention of the accused person in custody under this paragraph for a total
period exceeding-
(i) 90 days, where the investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term of not less than 10 years,
(ii) 60 days, where the investigation relates to any other offence.
And on the expiry of the said period of 90 days, or 60 days, as the case may be,
the accused person shall be released on bail if he is prepared to and does furnish
bail.
(b) No Magistrate shall authorize detention in any custody under this section
unless the accused is produced before him;
(c) No Magistrate of the Second class, not specially empowered in this behalf by
the High Court, shall authorize detention in the custody of the Police.
If in any case triable by a Magistrate as a summons case, the
investigation is not concluded within a period of six months from the date on
which the accused was arrested, the Magistrate shall make an order stopping
further investigation into the offence unless the officer making the investigation
satisfies the Magistrate that for special reasons and in the interests of justice the
continuation of the investigation beyond the period of six months is necessary.
Where the Magistrate has made any order stopping further investigation into an
offence, the Sessions Judge may, if he is satisfied, on an application made to
him, direct the investigation to be continued.

S.172: It is mandatory for every investigating officer to maintain a case diary.

The said case diary can be used, during trial by the accused to a very limited
extent.
S.173: Charge sheet: Report of Police Officer on completion of investigation.

Chapter-XIII: S.177 to 189: Jurisdiction of the Criminal Courts in Inquiries and

Trials.
Sec. 176: Inquiry by Magistrate into cause of death: (1) When any person
dies while in the custody of the police or when the case is of the suicide or death
of a woman within seven years of her marriage in any circumstances raising a
reasonable suspicion, the nearest Magistrate empowered to hold inquests shall,
and in any other case mentioned above, any Magistrate so empowered may hold
an inquiry into the cause of death either instead of or in addition to the
investigation held by the police officer and if he does so, he shall have all the
powers in conducting it which he would have in holding an inquiry into an
offence.
(2) The Magistrate holding such an enquiry shall record the evidence taken by
him in connection therewith in any manner.
(3) Whenever such Magistrate considers it expedient to make an examination of
the dead body of any person who has been already interred, in order to discover
the case of death, the Magistrate may cause the body to the disinterred and
examined.
(4) Where an inquiry is to be held under this Section, the Magistrate shall
wherever practicable, inform the relative f the deceased whose names and
addresses are know, and shall allow them to remain present at the inquiry.

S.177: Ordinary place of inquiry and trial

 52

S.178: Place of inquiry or trial

Chapter-XIV: S.190 to 199: Conditions Requisite for initiation of proceedings.
S.190: Cognizance of offences by Magistrate: It provides for taking of cognizance
by the Magistrate on a police report filed under Section 173 of Cr.P.C.; on a
complaint within the meaning of Sec.2(d) of Cr.P.C.; or suo motu.
The Magistrate may take cognizance of an offence under Sec.190(1)(b). While
taking cognizance under this provision the Magistrate can ignore the conclusion
arrived at by the investigation officer and independently apply his mind to the
facts emerging from record of investigation.
If the Magistrate decides that there is no sufficient ground for proceeding
further he may drop action.
The Magistrate may also take cognizance of the offence under Sec.190(1)
(a) on the basis of the original complaint.
If the Magistrate is of the opinion that cognizance of the offence can not
be taken on the basis of the materials placed before him, he must inform the
complainant/informant to make his submissions (afford opportunity to file a
protest petition before the final report is accepted).
Sec. 190: Cognizance of offences by Magistrate:
(1) A Magistrate of I Class or II Class who is specially empowered in this behalf,
may take cognizance of any offence: (a) upon receiving a complaint of facts,
which constitute such offence,
(b) Upon a police complaint of such facts,
(c) Upon information from any person other than a police officer, or upon his
own knowledge, that such offence has been committed
(2) The Chief Judicial Magistrate may empower any Magistrate of the II Class to
take cognizance under sub-section (1) of such offences as are within his
competence to inquire into or try.

S.192: Making over of cases to Magistrates

S.193: Cognizance of offences by Courts of Sessions:
S.194: Addl. And Asst. S Js., to try cases made over to them.
S.197: Prosecution of Judges and public servants:
The Procedure is laid down in Sec.197 Cr.P.C. According to this provision no
court shall take cognizance of offence against a public servant without the
previous sanction of the central or state government as the case may be,
provided the following conditions are satisfied.
a) the public servant is removable from the office either by the union
government or by a state government and not by any lesser authority.
b) The public servant is an accused of an offence alleged to have been
committed while acting or purporting to act in the discharge of his official
duty.
No particular form of sanction is prescribed. But prior to according sanction
the essential facts should be present in the mind of sanctioning authority.
Cognizance without sanction is prohibited, but examination of complainant,
preliminary enquiry or police investigation can proceeded with even in the
absence of sanction.
S.199: Court of Sessions has the original jurisdiction to take cognizance of
offence for prosecution of defamation under Chapter XXI Cr.P.C. Such
cognizance shall be taken on written complaint of the public prosecutor within six
months from the date of commission of the offence.
Sec. 197: Prosecution of Judges and Public servants: (1) When any
person who is or was a Judge or Magistrate or a public servant not removable
from his office save by or with the sanction of the Government is accused of any
offence alleged to have been committed by him while acting or purporting to act
in the discharge of his official duty, no court shall take cognizance of such
offence except with the previous sanction--
(a) in the case of a person who is employed or, as the case may be, was at the
time of commission of the alleged offence employed, in connection with the
affairs of the Union, of the Central Government.
 53

(b) in the case of a person who is employed or, as the case may be, was at the
time of commission of the alleged offence employed, in connection with the
affairs of a State, of the State Government.
Sec. 198: Prosecution for offences against marriage: (1) No Court shall
take cognizance of an offence punishable under Chapter XX of IPC except upon a
complaint made by some person aggrieved by the offence. Provided that:
(a) Where such person is under the age of 18 years, or is an idiot or a lunatic, or
is from sickness or infirmity unable to make a complaint, or is a woman who,
according to the local customs and manners, ought not to be compelled to
appear in public, some other person may, with the leave of the Court make a
compliant on his or her behalf;
(b) Where such person is the husband and he is serving in any of the Armed
forces of the Union under conditions which are certified by his Commanding
Officer as precluding him from obtaining leave of absence to enable him to make
a complaint in person, some other person authored by the husband in
accordance with the provisions of sub section 4 may make a complaint on his
behalf.
(c) Where the person aggrieved by an offence punishable under Sec. 494 or 495
of IPC, is the wife, complaint may be make on her behalf by her father, mother,
brother, sister, son or daughter or by her father’s or mother’s brother or sister or
with the leave of the Court ay any other person related to her by blood marriage
or adoption.
Sec. 198-A: Prosecution of offences under Sec. 498-A IPC: No Court shall
take cognizance of an offence punishable under Sec. 498-A IPC except upon a
police report of facts which constitute such offence or upon a complaint made by
the person aggrieved by the offence, or by her father, mother, brother, sister,
son or daughter or by her father’s or mother’s brother or sister or with the leave
of the Court ay any other person related to her by blood marriage or adoption.
Sec. 199: Prosecution for defamation: (1) No Court shall take cognizance of
an offence punishable under Chapter XXI of IPC except upon a compliant made
by some persons aggrieved by the offence: Provided that where such person is
under the age of 18 years, or is an idiot or a lunatic, or is from sickness or
infirmity unable to make a compliant or is a woman who according to the local
customs and manners, ought not to be compelled to appear in public, some
other person may, with the leave of the Court, make a complaint on his or her
behalf. (2) Notwithstanding anything contained in this Code, when any offence
falling under Chapter XXI of IPC is alleged to have been committed against a
public servant employed in connection with the affairs of the Union or of a State
in respect of his conduct in the discharge of his public functions, a Court of
Session may take cognizance of such offence, without the case being committing
to it, upon a complaint in writing made by the Public Prosecutor. (3) No court of
sessions shall take cognizance of an offence under sub-section (2) unless the
complaint is made within six months from the date on which the offence is
alleged to have been committed.

Chapter-XV: Complaints to Magistrate: S.200 to 204 & 190 Cr.P.C:

Taking cognizance by the Magistrate means application of mind to the facts
disclosed in the complaint for proceedings u/s 200 to 203 Cr.P.C. After receiving
a complaint/police report – allegation prima facie made out or not. As such
taking cognizance means applying judicial mind to see whether there is any basis
for initiating judicial proceedings under Sec.190 Cr.P.C.
(a) Upon receipt of a complaint made to him: Examine the complaint, witnesses
on oath – writing & signed by complainant u/s 200. If he is not competent –
return the complaint to present before the proper Court and complaint is not in
written, he shall direct the complainant to the proper Court u/s 201 [Postpone
process and enquiry u/s 202;May order investigation by police u/s 156(3)]
(b) Upon receipt of a police report: Magistrate take cognizance of an offence u/s
190(1)(b) independently apply mind – record of investigation. No sufficient
 54

ground – drop action. Magistrate may also take cognizance of the offence u/s
190(1)(a) on original complaint. Not taken cognizance upon material –
Magistrate inform complainant to file a protest report before the final report
accepted. If feels investigation not satisfactory or incomplete – direct the police
to make further investigation.
(c) After cognizance is taken: If Magistrate opined, no sufficient ground dismiss
complaint u/s 203 on recording brief reasons. If sufficient ground, he shall issue
summons if it is summons case; warrant, if it is warrant case, secure the
attendance of the accused u/s 204 Cr.P.C.
(d) On receipt of complaint from public servants: Complaint made in writing by a
public servant acting or purporting to act in discharge of his official duties, the
magistrate need not examine the complainant and witnesses, take cognizance
directly; Proviso(a) to Section 200.

Chapter-XVI: S.204 to 211: Commencement of proceedings before Magistrate

S.204: Issue of process,
S.206: Special summons in cases of petty offence.
S.207: Supply to the accused of copy of police report and other documents
S.208:Supply of copies of statements and documents to accused in other cases
triable by Court of sessions.
S.209: Commitment of case to Court of Sessions:

Section 209 of Cr.P.C. deals with commitment of the case to the Court of
Sessions when the offence is triable exclusively by the Sessions Judge. The
First Schedule of Cr.P.C. in its sixth column shows by what court the case is
triable.
When in a case instituted on a police report or otherwise, the accused
appears or is brought before the Magistrate and it appears to the Magistrate that
the offence is triable exclusively by the Court of Session, he shall—
(a) commit, after complying with the provisions of S.207 or S.208, as the
case may be, the case to the Court of Session, and subject to the
provisions of this Code relating to bail, remand the accused to custody
until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand the accused
to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles,
if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court
of Session.
While committing the case to the court of session, the Magistrate need
not make any elaborate enquiry except for the purpose of ascertaining whether
the case is triable exclusively by court of session or not.
Sec. 210: Procedure to be followed when there is a complaint case and
police investigation in respect of the same offence: (1) When in a case
instituted otherwise than on a police report, it is made to appear to the
Magistrate during the course of enquiry or trial held by him, than an investigation
by the Police is in progress in relation to the offence which is the subject matter
of the inquiry or trial held by him, the Magistrate shall stay the proceedings of
such inquiry or trial and call for a report on the matter from the police officer
conducting the investigation.
(2) If a report is made by the investigating officer under Section 173 Cr.P.C.
and on such report cognizance of any offence is taken by the Magistrate against
any person who is an accused in the complaint case, the Magistrate shall enquire
into or try together the complaint case and the case arising out of the police
report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case
or if the Magistrate does not take cognizance of any offence on the police report,
he shall proceed with the inquiry or trial, which was stayed by him, in
accordance with the provisions of this code.
 55

Chapter – XVII: Sections 211 to 224 of Cr.P.C: The purpose of framing a

charge is to make the accused aware of the accusation leveled against him
with sufficient clarity and certainty as to what the prosecution intends to
prove against him.
Section 211 of Cr.P.C., deals with the essentials of charge. They are:
1) Every charge under this Code shall state the offence with which the accused is
charged.
2) If the law, which creates the offence, gives it any specific name, the offence
may be described in the charge by that name only.
3) If the law, which creates the offence, does not give it any specific name, so
much of the definition of the offence must be stated as to give the accused
notice of the matter with which he is charged.
4 The law and section of law against which the offence is said to have been
committed shall be mentioned in the charge.
5) The fact that the charge is made equivalent to a statement that every legal
condition required by law to constitute the offence charged was fulfilled in the
particular case.
6) The charge shall be written in the language of the court.
7) If the accused, having been previously convicted of any offence, is liable, by
reason of such previous conviction, to enhanced punishment, or to punishment
of a different kind, for a subsequent offence, and it is intended to prove such
previous conviction for the purpose of affecting the punishment which the Court
may think fit to award for the subsequent offence, the fact, date and place of the
previous conviction shall be stated in the charge; and if such statement has been
omitted, the Court may add it at any time before sentence is passed.
The charge shall also contain such particulars as to the crime and place
of alleged offence and the person if any against whom it was committed, so that
reasonably sufficient notice may be given to the accused (Sec.212 Cr.P.C.)
committing the offence also must be briefly stated (Sec.213 Cr.P.C.)
The Court may alter charges or add any charges at any time before the
judgment is pronounced (Sec.216 Cr.P.C.) The Cr.P.C. provides a procedure
relating to joinder of charges in Section 218 to 224 Cr.P.C. Separate charges
shall be framed for distinct offences. Three offences of same kind within a year
may be charged together committed by the same accused. If in one series of
acts so connected together as to form the same transaction, more offences than
one committed by the same person, may be charged with and tried at one trial
for every such offence. The procedure in Sec.221 and 222 deal with framing of
alternative charges and regarding the proving of minor offence, when such minor
offence is not specifically charged. Sec.223 deals with what persons may be
charged jointly. Sec.224 deals with withdrawal of remaining charges on
conviction on one of several charges.
Sec.215 deals with the effect of errors in framing charges. It is not an
error if the accused was not in fact mislead by such error or omission and has
not occasioned in failure of justice.
[Section 464 Cr.P.C. lays down: “No finding, sentence or order by a Court
of competent jurisdiction shall be deemed invalid merely on the ground that no
charge was framed or on the ground of any error, omission or irregularity in the
charge including any mis-joinder of charges, unless in the opinion of the Court of
appeal, confirmation or revision, a failure of justice has in fact been occasioned
thereby”]

Chapter XIX: Trial of warrant Cases: – Sections 238 to 243 Cr.P.C –

Cases instituted on a police report, Sec.244 to 250 Cases instituted
otherwise than on police report.
S.248 (2) Hearing on sentence by a Magistrate is required, on
conviction in a warrant case. Conviction and sentence cannot be
passed on the same day.
 56

Chapter XX: trial of summons cases – Sec.251 to 259 Cr.P.C. – trial of

summons cases by Magistrate;
S.255 (2) Hearing on sentence by a Magistrate is required, on conviction in a
summons trial case.
S.256: In a summons case, instituted on complaint, the accused having been
summoned is liable to be acquitted.
S.257: Withdrawal of a complaint results in acquittal of the accused irrespective
of whether the charge has been framed or not.
S.258: Stoppage of proceedings has the effect of acquittal where the evidence of
the principal witness has been recorded. Discharge in all other cases where the
evidence of the principal witness has not been recorded. Proceedings under this
section can be stopped in a summons case instituted otherwise than upon a
complaint.
S.259: Magistrate has the power to convert a summons trial case into a warrant
trial case relating to an offence punishable for a term exceeding six months.
Chapter XXI: Summary trials – Sec.260 to 265.Cr.P.C.

Chapter XXII: – Attendance of persons confined or detained in prisons –

Sec.266 to 271 Cr.P.C.
S.267: Production of warrants in respect of a person detained in prison, can be
issued for the purpose of investigation or inquiry or trial.
Chapter XXIII: – Evidence in Inquiries and trials – Sec.272 to 283: Mode of
taking and recording evidence, Sec.284 to 299 Commissions for the examination
of witnesses (experts, mint officers, scientists etc.)
S.284: When attendance of witness is dispensed and commission issued.
S.285: Commission to whom to be issued.
S.286: Execution of Commissions: CJM/CMM.
S.287: Parties may examine witness – interrogatories may submit.
S.288: Return of commission – S.33 IEAct.
S.289: Adjournment on issuance of commission.
S.290: Execution of Foreign commission.
S.291: Deposition and Medical witnesses on commission.
S.293: Reports of Scientific experts.
S.294: Criminal trials, admissions or denial of documents.
S.299: Examination of witnesses in the absence of accused.
Chapter XXIV – General Provisions as to Inquiries and Trials, -
Sections: 300 to 327 Cr.P.C:
Sec.300 and Art.20(2): Double jeopardy means a person should not be
jeopardized doubly. Autrefois acquit: Autrefois attaint : Autrefois convict: means
formerly acquitted, attained and convicted is a bar to a criminal action for the
same offence. One shall not be brought in to danger of his life or liberty for the
same offence more than once.
Basing on the Rule of English Law is the maxim, nemo debut lis vexari a
man must not be put twice in peril for the same offence and also on the rule of
issue estoppel which is a facet of the doctrine of ‘ autrefois acquit’ barring
reception of evidence on an issue on which the finding was in favour of accused
at a previous trial.
Article 20(2) of the Constitution of India contemplates that no person
shall be prosecuted and punished for the same offence more than once.
Section 300 Cr.P.C. also contemplates that person once convicted or
acquitted not to be tried again for the same offence.
Sec.311: A witness can be called on the motion of the prosecution, on the
motion of the defense and on its own motion by the Court; to re-call any witness
already examined, to summon any witness who has been cited as a witness but
not produced or examined before the evidence is closed and; to summon any
witness who has not been cited as a witness.
 57

Examination of Accused: S.313 Cr.P.C: The statement of the accused has to

be recorded on oath. Answers given by the accused to the question put to him
while recording his statement can be taken into consideration for judging the
guilt of the accused.
Section 313(3) Cr.P.C. lays down that the accused shall not render himself liable
to punishment by refusing to answer such questions or by giving false answers
to them. Thus the primary object of examination of accused under Section 313
Cr.P.C. is intended for his benefit.

However, Section 313(4) Cr.P.C provides that the answers given by the
accused may be taken into consideration for or against him in such enquiry or
trial. Therefore, examination under Section313 Cr.P.C. is not an empty formality
and even if the answers given by the accused tend to incriminate him they can
be taken into consideration against him by the Court. The court can also take
such answers of the accused into consideration if they are in the nature of
explaining away the circumstances against him and in proof of his innocence.
The Apex Court in some cases has lain down that adverse reference can
be drawn against the accused from the answers given by him in the examination
under 313 Cr.P.C. or even from his silence, if circumstances of the case required
the accused to explain certain things appearing against him in the evidence
S.315: An accused can be called as a witness only on his own request in writing.
S.319: Power can be exercised by the Magistrate and the Court of Sessions both
only after recording of evidence during the inquiry or trial.
Classification of compoundable & non-compoundable offences has been
provided under Section 320 of Cr.P.C. Compounding of offence results in
acquittal of the accused under all circumstances. Offences other than those
mentioned in Sec.320 are not compoundable.
Sec.321: Withdrawal from the prosecution in any type of cases but only with the
consent of the court.
Chapter –XXV: General provisions as to accused persons of unsound
mind: S.328 to 339:
When a Magistrate holding an inquiry has reason to believe that the
person against whom the inquiry is being held is of unsound mind and
consequently incapable of making his defense, the Magistrate shall inquire into
the fact of the unsoundness of mind, and shall cause such person to be
examined by the civil surgeon of the district or such other medical officer as
the State Government may direct, and thereupon shall examine such surgeon or
other officer as a witness, and shall reduce the examination to writing. Pending
such examination and inquiry, the Magistrate may deal with such person in
accordance with the provisions of Sec.330 of the Code (release of the lunatic
pending investigation or trial). S.331: At any time after the person concerned has
ceased to be of unsound mind, the Magistrate may resume the inquiry or trial
and require the accused to appear or be brought before such Magistrate or
Court.

Chapter XXVI: Provisions as to offences affecting the administration of justice:

S.340 to 352:

Chapter XXVII: S.353 to 365: The Judgment:

Chapter- XXVIII: Submission of death sentence for confirmation:

Chapter-XXIX: Appeals:

Chapter-XXX: Reference & Revision: S.395 to 405:

CHA –XXXI ::TRANSFER OF CRIMINAL CASES (406 –412)

 58

CH-32:EXECUTION, SUSPENSION, REMISSION AND COMMUTATION OF

SENTENCES [416 –435]
A.-Death sentences (413 – 416)
B.—Imprisonment (417 – 420)
C--Levy of fine (421 – 424)
D.--General provisions regarding execution (425 – 431)
E.--Suspension, remission and commutation of sentences (432 –435)

CHA –33:: PROVISIONS AS TO BAIL AND BONDS (436 –

450)
CHA –XXXIV:: DISPOSAL OF PROPERTY (451 –
459)
S.451: Property within the meaning of this section can be moveable and
immoveable property both. It is an interlocutory order. Application under this
Section must have been produced before the court during inquiry of trial, must
have been the subject matter of offence and must have been used in the
commission of the offence.
S.452: Disposal of property at the conclusion of trial is governed. An order
under this section shall not be carried out for a period of two months if no
appeal has been presented.
S.456: Possession of an immoveable property can be restored only in case the
person is convicted.
S.457: When the property is not produced before the Court pending or during
the inquiry or trial, the disposal of property shall be governed.
S.459: The Magistrate may order for the selling of property by the government,
if no claimant within 6 months.
CHA –XXXV :: IRREGULAR PROCEEDINGS: (460 – 461):
S.460: Irregularities which do not vitiate trial.
S.461: Irregularities which vitiate trial.
CH–36: LIMITATION FOR TAKING COGNIZANCE OF CERTAIN
OFFENCES (467-473)
S.468: For an offence punishable with fine only, the period of limitation
prescribed is six months. Period of limitation for an offence punishable with a
term of two years is three years. For an offence punishable for a term more than
three years is no limitation prescribed.
S.469: Date from which the period of limitation is to commence has been
prescribed.
S.473: Court can condone the delay. Computing the period of limitation the time
during which the accused avoided arrest by absconding has to be excluded, the
accused remained absent from India has to be excluded.
CHA –XXXVII:: MISCELLANEOUS (474 –484)
 What is the procedure to be followed if the mistake of fact upon the
police.
 If arrest of MLAs, MPs? How?
 Contempt of lawful authority
 59

THE INDIAN PENAL CODE

Chapter-I: Introduction: S.1 to 5:

Chapter-II –General explanations: S.6 to 52-A:
Sec.11 – “person” includes any company or association or body of persons. A
child unborn and within womb is a person if its body is developed sufficiently to
make it possible to call it a child.
Sec.17 – “Government” denotes the Central Government or the State
Government. The Supreme Court held in R.S.Nayak v. A.R. Antulay (AIR 1984 SC
684) that Government denotes the executive and not the legislature and as such
a member of legislative assembly (MLA) will not fall within the definition of “State
Government”.
Sec.19 – “Judge” is a person who is designated as Judge and who is empowered
by law to give in any legal proceedings civil or criminal a definitive judgment.
Sec.20 – “Court of justice” denotes a Judge who is empowered by law to act
judicially.
Sec.21 – “Public servant” means every commissioned officer of Military, every
Judge, every officer of a Court of justice (liquidator, receiver, commissioner),
arbitrator, every person who is in the service or pay of the Government for the
performance of public duty.
Sec.22 – ‘Movable property’ includes corporeal property of every description
except land and things attached to earth or permanently fastened to anything,
which is attached to the earth. However, all components of earth inclusive of
soil, stones, and minerals being severed from the earth or the land is movable
property. Growing crop, standing teak trees are not movable property, however
on severance from earth they would become movable property.
Sec.23 – “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.
Sec.24 – “Dishonestly”- whoever does anything with intention of causing
wrongful gain to one person or wrongful loss to another person is said to do that
thing dishonestly.
Sec.25 – “Fraudulently” A person said to do a thing fraudulently if he does that
thing with intent to defraud but not otherwise. Deceit and injury to the person
deceived are the two elements of the expression ‘defraud’.
Sec.28 – “Counterfeit” is causing one thing to resemble another thing with
intention to deceive.
Sec.29 – “Document” denotes any matter expressed or described upon any
substance by means of letters, figures or marks which may be used as evidence
of that matter.
Sec.30 – “Valuable security” A document creating or extinguishing a right is
valuable security. A copy of a document is not valuable security.
Sec.31 – “A will” is a testamentary document.
Sec.33 – “Act” comprises one or more acts or one or more illegal omissions. A
person can not be punished twice for the same act.
Sec.34: Common intention: When a criminal act is done by several persons in
furtherance of the common intention of all each of such person is liable for that
act in the same manner as if it were done by him alone; it is necessary that
there is a prior conspiracy or premeditation and can be formed at the time of
commission of offence itself. To establish the same, common intention is proved
but not overt act being proved. It is a rule of evidence.
Sec.39 – “Voluntarily” means causing a thing with intention to cause it.
Sec.40 – “Offence” means a thing made punishable under IPC or under any
special or local law.
Sec.41 – “Special law” is a law applicable to a particular subject.
Sec.42 – “Local law” is a law applicable only to a particular part of the country.
 60

Sec.43 – “illegal” means everything which is an offence or which is prohibited by

law.
Sec.44 – “injury” any harm whatever illegally caused to any person in body, mind
reputation or property.
Sec.45: ‘Life’ denotes life of a human being.
Sec.47: ‘Animal’ denotes any living creature including human being or any living
creature other than a human being.
Sec.49 – “Year” “month” means the year or the month according to British
calendar.
Sec. 52 – “Good faith” An act is done in good faith if it is done with due care and
attention.
Sec.52A – “Harbour” To supply a person (except in the case of a spouse) shelter,
food, drink, money, clothes, means of conveyance, Armour etc., to evade
apprehension.

Chapter-III: Punishments: S.53 to 75:

Sec.53: Punishments are five types only (out of six one repealed). Death, life,
RI & SI, forfeiture of property and to pay a fine.
Sec.60: In certain cases of imprisonment, the sentence of imprisonment shall be
wholly rigorous, or wholly simple, or that any part of such imprisonment shall be
rigorous and the rest simple.
Sec.64: Sentence of imprisonment for non-payment of fine shall be in
excess of any other imprisonment to which an offender has been
sentenced.
Sec.65: Limit to imprisonment for non-payment of fine, to one-fourth of
the maximum term of imprisonment fixed for the offence, when
imprisonment and fine awardable.
Sec.66: Description of imprisonment which the court imposes in default
of payment of a fine may be of any description to which the offender
might have been sentenced for the offence.
Sec.67: In case of an offence punishable with fine only, imprisonment for non-
payment of fine has to be simple. In case of an offence punishable with fine only
and a person is sentenced to pay a fine not exceeding Rs.50 the imprisonment in
default of fine shall not exceed two months; an offender who is sentenced to pay
a fine of not exceeding Rs.100 but exceeding Rs.50 the imprisonment in default
of payment of fine shall not exceed four months; fine exceeding Rs.100, the
imprisonment in default of payment of fine shall not exceed six months.
Sec.68: The imprisonment which is imposed in default of payment of a fine shall
terminate whenever that fine is either paid or levied by process of law (on expiry
of the term of imprisonment for non-payment).
Sec.69: Termination of imprisonment on payment of proportional part of fine:
Part of the imprisonment undergone – for remaining part for non-payment of
fine, if paid proportionately; the imprisonment shall terminate.

Chapter-IV: General Exceptions: S.76 to 106:

Section 6 of IPC (definition) very clearly states that every definition, every
illustration and every provision contained in IPC is subject to the General
Exceptions contained in this Chapter.
Though there are 31 sections in this chapter it contains only 7 principles,
they are;
(1) Mistake of fact - (1) bound by law to do it (S.76)
(2) Justified by law to do it (S.79)

(2) Judicial Act - (1) of a Judge (S.77)

(2) Pursuant to order of Judge (S.78)

(3) Accident (S.80)

(4) Absence of criminal intention
(1) act done to avoid other harm (S.81)
 61

(2) act of child

(a) Under 7 years (S.82)
(b) Above 7 years and under 12 yrs of immature
understanding(S.83)
(3) act of a lunatic (S.84)
(4) act of an intoxicated person (S.85, 86)
(5) bonafide act for another’s benefit (S.92)
(6) Communication made in good faith for the benefit of
that person (S.93)
(7) acts done under threat (S.94)

(5) Acts done by consent (S.87 to 91):-

1. S.87-Act not intended and not known to be likely to cause death or grievous
hurt, done by consent (fence)
2. S.88-Act not intended to cause death, done by consent in good faith for
person’s benefit.(surgeon-operation)
3. S.89- Act done in good faith for benefit of child or insane person, by or by
consent of guardian.
4. S.90-Consent known to be given under fear or misconception.
5. S.91-Exclusion of acts which are offences independently of harm caused.
(Causing miscarriage in good faith for the purpose of saving the life of the
woman)
(6) Acts causing slight harm (S.95)
(7) Right of private defence (1) of body (S.96-102, 104 & 106)
(2) of property (S.96-99, 101,103,104 &
105)

Chapter-V: Abetment: S.107 to 120:

Sec. 107 – “Abetment” A person abets the doing of a thing if he instigates a
person to do that thing, or engages one or more persons in any conspiracy for
doing of that thing, if he intentionally aids by any act or illegal omission the
doing of that thing.
Sec: 108: Abettor: A person abets an offence, who abets either the commission
of an offence, or the commission of an act which would be on offence, if
committed by a person capacity by law of committing an offence with the same
intention or knowledge as that of the abettor.
(Punishments as prescribed under the sections for which the offence connected)

Chapter V-A – Criminal Conspiracy 120-A & 120-B

Sec. 120A – “Criminal conspiracy” when two or more persons agree to do or

cause to be done an illegal act or an act which is not illegal by illegal means,
such an agreement is criminal conspiracy. No agreement except to commit an
offence shall amount to criminal conspiracy.
120-B Punishment to criminal conspiracy ;(criminal conspiracy to
commit the offences punishable for two years above, the same
punishment for the offence prescribed: other than the above, six
month-fine-both)

Chapter-VIII: Offences against the public tranquility: S.141 to 160

Sec. 141 – “Unlawful assembly” An assembly of five or more persons with
common object to show criminal force to resist execution of any law or any legal
process or to commit any mischief or criminal trespass or other offences. An
assembly which was not unlawful when it assembled may subsequently become
an unlawful assembly.
Sec.143: Being a member of unlawful assembly – imprisonment for 6m/f/b –
(Cognizable – bailabale – triable by Magistrate = for short ‘CBM’)
Sec.144: Joining an unlawful assembly armed with any deadly weapon: 2y/f/b –
CBM
 62

Sec.149: Every member of unlawful assembly guilty of offence

committed in prosecution of common object. (Punishment, triable etc.,
the same as for the offence connected with i.e. r/w)
Sec.159 – “Affray” When two or more persons by fighting in a public place
disturbs the public piece, they are said to commit affray. (S.160: one month/fine
100/both – CBM)

Ch-XII: Offences relating to coin and Government stamps-S.230 to 263-A

S.231 counterfeiting coin
Chapter-XIII: Offences relating to weights and measures: S.264 to 267: S.264:
Fraudulent use of false instrument for weighing – extend to one year or with fine
or with both: NcBM (Non cognizable+bailable+Magistrate: for short ‘NcBM’)
Chapter XIV: 268 to 294-A: Of offences affecting the public health, safety,
convenience, decence and morals.
S.268: Public Nuisance: A person is guilty of a public nuisance, who does any act
or is guilty of an illegal omission which causes any common injury, danger or
annoyance to the public or to the people in general who dwell or occupy
property in the vicinity, or which must necessarily cause injury obstruction,
danger or annoyance to person who may have occasion to use any public right.
S.294: Obscene acts and songs: Whoever, to the annoyance of others does any
obscene act in any public place, or sings, recites or utter ay obscene songs,
balled or words, in or near any public place, shall be punished with imprisonment
of either description for a term which may extend to three months, or with fine,
or with both.
‘CBM’

Chapter-XV: Offences relating to religion: S.295 to 298

Chapter-XVI: S.299 to 377: Offences affecting the human body.
Sec. 299 – “Culpable homicide” – Causing death by doing an act with intention to
cause death, or with intention to cause such bodily injury as is likely to cause
death or with the knowledge that he is likely to cause death by such an act.
Sec.300 – “murder” _ Culpable homicide is murder subject to certain exceptions.
To constitute murder there must be death with intention, or such a bodily injury
should have been caused which is likely to cause death or the accused must
have knowledge that by such an act he is causing death.
In the following cases, culpable homicide is not murder: -
1) When the offender is deprived of power of self-control by grave and
sudden provocation and causes death of person who provoked him or
causes death of any other person by mistake or accident.
2) If the offender in good faith in exercise of right of private defence of
person or property exceeds the limit and causes death without any
intention.
3) If the offender being public servant or aiding a public servant acting in
advancement of public justice exceeds the power given to him by law and
does an act which causes death, in good faith, believing to be lawfully
necessary for due discharge of his duty.
4) If the offender causes death of a person without pre meditation in a
sudden fight in the heat of passion upon a sudden quarrel.
5) If the person whose death is caused is above 18 years and takes the risk
of death with his own consent.
S.302: Punishment for murder- punishable with death or life & fine. –C/NB/S
(Cognizable + non-bailable + triable by Sessions: For short ‘C/NB/S’)
S.304: Punishment for culpable homicide not amounting to murder. If death
caused with intention, punishment for life or 10 years & fine, whereas with the
knowledge that it is likely to cause death but without intention, the punishment
be for ten years or with fine or with both with – C/NB/S
S.304-A: Causing death by negligence (2 years) CBM
S.304-B Dowry death (7 years extend to life) C/NB/S
 63

S.306: Abetment to commit suicide: If any person commits suicide, whoever

abets the commission of such suicide, shall be punished with imprisonment of
either description for a term which may extend to ten years, and also liable for
fine. C/NB/S
S.307: Attempt to murder: Whoever does any act with such intention or
knowledge, and under such circumstances that, if he by that act caused death,
he would be guilty of murder, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to
fine; and, if hurt is caused to any person by such act, the offender shall be liable
either to imprisonment for life, or to such punishment as is herein before
mentioned. (If the offender is already in life imprisonment, then death)
S.308: Attempt to commit culpable homicide
(hurt caused 7 years, otherwise 3 years) C/NB/S
S.309: Attempt to commit suicide (one year) C/NB/S
S.310: Thug (311 – life)(steeling of child etc) C/NB/S

Of Hurt:
Sec.319 – “Hurt” whoever causes bodily pain, disease or infirmity to any person
is said to cause hurt.
Sec.320 – “Grievous hurt”. The following kinds of hurt are grievous; (1)
Emasculation (2) permanent privation of sight of either eye (3) permanent
privation of hearing of either ear (4) Privation of any member or joint (5)
Destruction of power of any member of joint (6) permanent disfiguration of hear
or face (7) fracture or dislocation of bone or tooth (8) Any hurt which endangers
the life or causes suffering for 20 days.
S.321: Voluntarily causing hurt, (Voluntarily causing hurt – NcBM- 323- one
year/1000)
S.322: Voluntarily causing grievous hurt – 7y & fine u/s 325 - CBM
S.324: Voluntarily causing hurt by dangerous weapons or means – 3y/fine/both
-CBM
S.326: Voluntarily causing grievous hurt by dangerous weapons
or means – life--10y--& fine – C/NB/M

--Of Wrongful Restraint and Wrongful Confinement. (339 to 348)

Sec. 339 – “Wrongful restraint” keeping a man out of a place where he wishes to
be and has a right to be. To constitute this offence, there must be obstruction
preventing a person to go in a direction in which he has right to go.
(u/s 341 SI one month or fine Rs.500 or both) -CBM
Sec.340 – “Wrongful confinement” Wrongful restraint of a person from
proceeding beyond certain circumscribed limits.
(u/s 342 one year or fine or both - CBM)
--Of Criminal Force and Assault: (349 to 358)
Sec.349 – “Force” – By causing motion, change or cessation of motion, bringing
self or any substance into contact with any part of other’s body or anything
which that other person is wearing or carrying so that such contact affects
other’s sense of feeling. Such motion should be either by his own bodily power
or by disposing any substance or by inducing any animal to move.
Sec.350 – “Criminal force” – Using force with intention, without that person’s
consent in order to committing an offence, or knowingly using force that such
force would cause injury, fear or annoyance to the person to whom the force is
used.
(3m/500 u/s 352 -NcBM)
Sec.351 – “Assault” Making a gesture or preparation intending or knowing that
such gesture or preparation would cause the person present an apprehension
that the person who is making gesture or preparation is going to use criminal
force.(3m/500 u/s 352 - NcBM)
Of kidnapping, abduction, slavery and Forced Labour: (359 to 374)
Sec.359 – “Kidnapping” is of two kinds, ‘Kidnapping from India’ and ‘Kidnapping
from lawful guardianship’.
 64

Sec.360 – “Kidnapping from India” – Conveying a person beyond the limits of

India without the consent of that person.
Sec.361 – “Kidnapping from lawful guardianship” – Taking or enticing any minor
(16 years if male, 18 years if female) or any person of unsound mind, out of the
keeping of the lawful guardian without the consent of such guardian.
(Kidnapping: 363 – 7 years & fine – C/NB/M)
Sec.362 – “Abduction” Compelling or inducing by force or by deceitful means any
person to go from any place.
Sexual offences:
Sec.375 – “Rape” – Sexual intercourse with a woman by a man (a) against her
will (b) without her consent (c) after obtaining consent by putting her or any
person in whom she is interested in fear of death or of hurt (d) with her consent
by impersonation as her husband (e) with her consent when she is of unsound
mind or under intoxication (f) with or without consent when she is under 16
years of age.
Penetration is sufficient to constitute offence of rape. Sexual intercourse by a
man with his own wife, the wife not being under 15 years age is not rape.
S.376: Punishment for rape: Shall not be less than seven years but which may
be for life or for a term which may extend to ten years and fine. Own wife under
12 years, 2 years or with fine or with both. –C/NB/S
(376(2) Custodial rapes etc.—punishments)
S.376-A: Intercourse by a man with his wife during separation: 2 years & fine.
Nc/B/S
S.376-B. Intercourse by public servant with woman in his custody, which is not
amounting of the offence of rape: five years and fine.CBS
S.376-C: Intercourse by superintendent/Manager of jail, remand home, women’s
institute or children’s institution and which is not amounting of the offence of
rape: five years and fine. CBS
S.376-D: Intercourse by any member of the management or staff of a hospital
with any woman in that hospital and not amounting to offence of rape: five years
and fine. CBS
S.377: For unnatural offence: carnal intercourse against the order of nature with
any man, woman or animal, shall be punished with ten years and fine. C/NB/M

Chapter-XVII: Offences of property: 378 to 462 (84 sections)

S.378 to 382: theft (378-defi.& 379-3 years with fine with both –
C/NB/M)
Sec. 378 – “Theft” – Taking or moving any movable property dishonestly out of
the possession of any person without that person’s consent.
S.383 to 389: Extortion (383-defi; 384-3 years, fine or both –C/NB/M

Sec.383 – “Extortion” Putting a person in fear of any injury to him or to any

other person and thereby dishonestly inducing the person to deliver any property
or valuable security.

S.390 to 402: robbery & dacoity.

Sec. 390 – “Robbery” In all robbery there is theft or extortion.

(a) Theft is robbery if in committing theft the offender voluntarily causes
or attempts to cause to any person death or hurt, wrongful restraint,
or fear of instant death or of instant hurt or wrongful restraint.
(b) Extortion is robbery if the offender while committing extortion is in
the presence of the person put in fear, commits extortion by putting
the person in fear of instant death, of instant hurt or of instant
wrongful restraint.
Sec. 391 – Dacoity” If five or more persons jointly commit or attempt to commit
robbery, it is dacoity.
 65

Punishment for robbery: 392-10 years & fine – if on highway –life

imprisonment) –C/NB/M

Punishment for Dacoity: - 395-life or 10 years - C/NB/S

S.403 & 404 :Criminal misappropriation—

 S.403 Dishonest/criminal misappropriation of property –2-years or fine or
both -NcBM
 S.404: Dishonest misappropriation of property possessed by deceased
person at the time of his death. 3 years & fine or both – If it is committed
by the clerk or servant of the deceased – 7 years. NcBM
S.405 to 409: Criminal breach of trust (405-defi & 406-3/f/b = C/NB/M)
S.410 to 414: Receiving stolen property (410-defi, 411-3/f/b – C/NB/M)
S.415 to 420: Cheating (415-defi; 417- one/f/b - NcBM)

Sec.405 – “Criminal breach of trust”. The person who is entrusted with property
dishonestly misappropriates or converts that property to his own use or disposes
of that property in violation of any legal contract which he has made is said to
commit criminal breach of trust.
Sec. 410 – “Stolen property” The property possession of which has been
transferred by theft, or by extortion or by robbery or by misappropriation in
respect of which criminal breach of trust has been committed.
Sec.415 – “Cheating” – Deceiving any person fraudulently or dishonestly to
deliver any property to any person or to consent that any person shall retain any
property or inducing the person so deceived to do or omit to do anything which
he would not do or omit if he were not so deceived and such omission shall
cause or likely to cause damage or harm to that person in body, mind, reputation
or property.
Sec.420: Cheating and thereby dishonestly inducting delivery of property, or the
making, alteration or destruction of a valuable security – 7y&fine – C/NB/M.
S.421 to 424: Fraudulent deeds and disposition of property
 S.421: Dishonest or fraudulent removal or concealment of property to
prevent distribution among creditors – 2y/f/b - NcBM
 S.422: Dishonestly or fraudulently preventing debt being available for
creditors – 2y/f/b. NcBM.
 S.423- Dishonest or fraudulent execution of deed of transfer containing
false statement of consideration – 2y/f/b – NcBM.
 S.424-Dishonest or fraudulent removal or concealment of property –
2/f/b-NcBM

S.425 to 440: Mischief – S.425-defi 426-3m/f/b-NcBM

Sec. 425 – “Mischief” Intention to cause wrongful loss or damage to the public or
to any person by destruction or any change in property.

S.441 to 462: Criminal trespass:

 S.441 criminal trespass – 447- 3m/f/b.-C/NB/M
 S.442 house trespass – 448 –1y/f/b – C/NB/M
Sec.441 – “Criminal trespass” Entering into property in possession of another
person with intent to commit an offence
Sec.442 – “House trespass” Committing criminal trespass by entering into or
remaining in any building or dwelling house.
Sec.443 – “Lurking house trespass” Committing house trespass by taking
precautions to conceal such house trespass from some person who has a right to
eject the trespasser.
Sec.445 – “House breaking” While committing house trespass if a person enters
into the house through a passage made by himself, by climbing over any wall or
building, by breaking keys or by using criminal force or committing an assault he
is said to have committed house braking.
 66

Chapter-XVIII: S.463 to 477A IPC: Offences relating to documents and to

property marks.

S.463: Forgery,
S.464: Making a false document
S.465: Punishment for forgery-2 years/fine/both -NcBM.
S.29: Document & S.90 free consent (connected )
Sec.463 – “Forgery” Making a false document or part of a document with intent
to cause damage or injury to the public or any person to part with property with
intent to commit fraud.
Sec.464. “Making a false document” Who dishonestly or fraudulently makes,
signs, seals, alters or executes a document or part of a document with intention
of causing it to be believed that such document is true and original is said to
have made a false document.

Chapter-XIX: The criminal breach of contract of service: 491

(490 & 492 repealed)

S.491: Deals with the breach of the legal obligation towards the incapable person
such as youth, unsound person, person suffering with disease or bodily
weakness. 3m/200/b – NcB/any Magistrate.
Chapter-XX: Offences relating to marriage: S.493 to 498:
 S.493: Cohabitation caused by a man deceitfully inducing a belief of
lawful marriage – 10 & fine.Nc/NB/M
 494 – Marrying again during lifetime of husband or wife – 7y-
&fine.NcBM
 495-Same offence with concealment of former marriage from person with
whom subsequent marriage is contracted –10&fine.NcBM
 496 – Marriage ceremony fraudulently gone through without lawful
marriage – 7y & fine. NcBM
Sec.497 – “Adultery” Whoever has sexual intercourse with wife of another person
without consent or connivance of her husband, not amounting to the offence of
rape, is guilty of offence of adultery. In such case the wife shall not be punished
as an abettor.
 497 – Adultery – 5/f/b, - NcBM.
498 – Enticing or taking away or detaining with criminal intent a married woman-
2/f/b.NcB/any Magistrate

Chapter-XX-A: Cruelty by husband or relatives of Husband: S.498-A:

Sec.498-A Explanation - “Cruelty” means any willful conduct which is likely to
drive the woman to commit suicide or cause grave injury or danger to life, limb,
health Physical or mental of the woman, or, harassment of the woman with a
view to coercing her or any person related to her to meet any unlawful demand.
S.498A: Husband or relative of husband of a woman subjecting her to cruelty.– 3
years & fine. – C/NB/M
Chapter-XXI: Defamation: S.499 to 502:
S.499 to 502- Defamation. (499-defi 500-2/f/b – NC/B/S)
Sec.499 – “Defamation” Whoever by words either spoken or written makes or
publishes any imputation concerning any person intending to herm or with
knowledge that such imputation will harm the reputation of such person is said
to defame that person.
Chapter-XXII: Criminal Intimidation, insult and annoyance:
S.503 to 510:
Sec.503 – “Criminal intimidation”. Whoever threatens another with any injury to
his person, reputation or property or to the person or reputation of any one in
whom that person is interested with intent to cause harm and causes that person
to do any act which he is not legally bound to do or to omit to do any act which
 67

that person is legally entitled to do is said to have committed criminal

intimidation.
506-2y/f/b. - NcBM
Chapter XXIII: S.511 IPC of attempts to commit offences.
Section 34, 107 and 108 IPC: Abetment of an offence is also an offence. There is
no illegality in framing charge under Sec.306 r/w 34 IPC
Ignorantia facit excusat Ignorantia Juris non excusat is the common law
principle. Every man is presumed to know the law, will explain the maxim Ignorantia
Juris non excusat. Sections 76 and 79 are paraphrase of the common law principles.

Actus non facit reum nisi mens sit rea

So the existence of mens rea is fundamental, in holding a citizen guilty. Hence the
test of criminality in the Code depends upon the presence of criminal intent. So
Chapter-IV is an exception to the said common law principle.
In all these cases there is the absence of criminal intent except mens rea is not
required where the acts prohibited by a statute are not criminal in any sense but are
prohibited in the public interest under a penalty (Sec.95).

Section 53 of the Indian Penal Code prescribes various sentences to be imposed.

Sections 53 to 75 deal with punishments.
Sentence is always the discretion of the court. The Indian Penal Code symbolizes the
same. Except Sections 397 and 398 the Code has not prescribed any minimum
sentence. It prescribed only the maximum sentence leaving the appropriate sentence
to be imposed to the wisdom of the Court. That is the reason why Section 303 has
been struck down by the Apex Court. Vide, Mithu v State.
Separate sentences to be inflicted.

Decisions: (Cr.P.C)

S.125 of Cr.P.C, 1974 – application for maintenance by wife. Husband denying

factum of marriage. Certificate of registration of their marriage is sufficient.
Witnesses’ examination not necessary. Magistrate is not a full-fledged Civil Court to
go into the validity of the marriage – 1979 Crl.L.J. 454

Cr.P.C 1974 – S.146 (2) – A receiver appointed under section 146(2) has all the
powers of a Receiver appointed under CPC and Magistrate control over him till he is
discharged – 1978 Crl.L.J 1275

162 – Non supply of 162 statements of witnesses to the accused – Accused cannot
be said to have a fair trial and conviction has to be quashed – 1951 MWN (Crl) 15

S.162 – Merely taking specimen handwriting does not amount to giving a statement.
Identification of witness becomes stronger when he has the opportunity of seeing
him for a long time in a broad daylight. It is not necessary that a retracted confession
should be corroborated in each material xx but it is sufficient that in a general
corroboration of the important incident mentioned – AIR 1978 SC 1770

Cr.P.C 1898 – Sec.350 and 367 – Judgment pronounced by the successor on behalf
of the predecessor who had written the judgment is nullity.

397 and 401 - Order extending period of limitation is not an interlocutory order. It is
open to review – 1978 Crl.L.J. 1180

Cr.P.C (old) S.234 (1) – Where there are two cases of alleged murder by the same
person one after the other the same night, they must be tried together u/s 234 (1) –
1952 MWN (Crl) 270

S.243 – summoning the defence witnesses – List of witnesses furnished but the
accused has no means to pay the expenses. Witnesses are to be summoned at the
Court expense – 1978 (2) APLJ (Short Notes) 35
 69

S.249 (old Cr.P.C) stopping of proceedings under section 249 can never be regarded
as an acquittal for the purpose of S.403 – 1975 Crl.L.J 746

256(1) – complainant absent, accused acquitted. Magistrate has no power to set

aside or review his own order – 1979 Crl.L.J SN 6

S.401 – Complainant case only appeal lies against the order of acquittal but not
revision – 1979 Crl.L.J NOC 58

225 r/w 24, 209, 301 and 32 as amended in the year 1978 – Sessions Case arising
out of a private complaint – Complainant has no locus standi to conduct the
prosecution. Public Prosecutor can only should conduct the prosecution – 1979 (2)
APLJ 350

Cr.P.C, 1973 – S.202 (2) – Procedure mandatory. It is obligatory on the part of the
Magistrate in a case triable exclusively by a Court of Session to examine all the
witnesses of the complainant before issuing process to the accused – 1979 (2) APLJ
299

Sec.311 – Recalling of witness for further examination. It is elementary that for

ordering recall of a witness for further cross-examination, trial Judge shall be satisfied
that for a just decision of the case and on a perusal of the evidence of that witness
that such recall and re-examination is essential for just decision of the case, is a
jurisdictional pre-condition before ordering recall. 1991(2) ALT 661 UDAY GOURI v.
A.P.RAO AND OTHERS

S.438 – Anticipatory bail is not available in offences of atrocities on SC & STs. When
the members of the Scheduled castes and Scheduled tribes assert their rights and
demand statutory protection, vested interest try to cow down and terrorize them. In
the circumstances, if anticipatory bail is not made available to persons who commit
such offences, such a denial cannot be questioned as unreasonable or violative of
Article 14, as these offences form a distinct class by themselves and cannot be
compared with other offences – 1995 CRL.L.J. 2076 STATE OF M.P. v. R.K.BALOTHIA

S.193 – Court of Session – Power to take cognizance of offence as a court of original

jurisdiction – Once a case is committed to Court of Session by a Magistrate – In such
cases Court of Session can summon person whose complicity in commission of any
crime can prima facie be gathered from the material available on record – 1995
CRL.L.J. 2118 (SC) NUSAR V. STATE OF U.P.

S.154 – FIR – Evidentiary value – conviction based only on allegation of FIR. FIR
itself is not a substantive piece of evidence and it can only be used to either
contradict or corroborate the maker thereof – AIR 1995 SC 1437 MADHUSUDHAN
SINGH V. STATE OF BIHAR

154 – Evidentiary value – It is well settled that unless FIR can be tendered in
evidence under any provision contained in Chapter II of Indian Evidence Act, such a
dying declaration falling under Sec.32 (1) as to the cause of the informants’ death or
as part of the informers conduct under sec.8, it can ordinarily be used only for the
purpose of corroborating, contradicting or discrediting (under sections 157, 145 and
155 of Evidence Act). Its author, if examined or any other witness – 1975 CRL.L.J.
634 = AIR 1975 SC 757 SHANKER V. STATE OF U.P.

154 – The inference arising from the fact that the names of the accused are not
mentioned in a FIR must vary from case to case – HALLU v. STATE OF M.P. – 1974
CRL.L.J. 1385 (SC).

Ss.173 and 169 – Magistrate has no power to call upon the police to file a charge
sheet – AIR 1968 SC 117 ABHINANDAN JHA V. DINESH MISHRA
 70

Ss.162, 173 and 465 – The Investigating Agency is bound to produce the statement
recorded under section 161 Cr.P.C along with its report and the accused is entitled to
get copies of such statements in order to confront the witness. When more than one
statement of witness has been recorded, the accused is entitled to get copies of all
such statements. This right cannot be whittled down by merely supplying the copy of
only one statement. The effect of non-supply of copies of statements of witnesses
not being curable the trial is vitiated and therefore new trial is ordered. In this case
Investigating Officer admitted of examining witnesses by two Investigating Officers
and recording of statement by both Ios. Accused filed a memo for copies of
witnesses, statement and memo allowed. But the application to recall the witnesses
was rejected. 1988 CRL.L.J. 42 – DALLA v. STATE OF RAJASTHAN.

S.354 – The defence taken by one accused cannot in law be treated as evidence
against his co-accused. AIR 1979 SC 826 S.P.BHATNAGAR v. STATE OF
MAHARASHTRA

S.161(3), 173(4) and 537 – The original statement recorded from the witnesses
under section 161(3) in telugu were never made available to the accused or to the
Court to see if the type written English translations furnished in English tallied with
the statement recorded in telugu. (this is a case of deliberate suppression of the
statement of witnesses recorded by SI in the course of investigation) – 1972 MLJ
(Crl) 803 (AP) – KALLE BYRI @ BEKKADU AND OTHER V. STATE OF A.P.

S.154 – FIR – Delay in presenting FIR - In the absence of any explanation for delay
in FIR the version of the prosecution is weakened. Delayed FIR does not help the
prosecution. Mere delay is not fatal in every case. Delay has to be examined. The FIR
in a criminal case is an extremely vital and valuable piece of evidence for the purpose
of corroborating the oral evidence adduced at the trial. The object of insisting upon
prompt lodging of the report to the police in respect of the commission of an offence
is to obtain prior information regarding the circumstances in which the crime was
committed the names of the actual culprits and the part played by them and the
names of eye witnesses present at the scene of occurrence. Delay in lodging the FIR
often results in embellishment, which is the creature of an afterthought. – 1993
CRL.L.J. 730 MEGHAJI GODODJI THAKORE v. STATE OF GUJARAT

Ss.161, 162, 172, 173 and 207 Cr.P.C– Accused is entitled to the copies of
statements of witnesses recorded by the prosecution in the police dairy during
investigation some of which are recorded more than once. – 1984 Crl.L.J 864 –
S.J.CHOWDARY v. STATE (DELHI HIGH COURT)

S.154 – FIR – The statement made by a witness which initiated the proceedings,
when reduced to writing, is the FIR. The investigating officer has no business to get it
typed. The typed copy cannot be used as a piece of evidence for any purpose in the
case. – 1971 Crl.L.J 1615 – H.D.SHARMA v. STATE

S.173 – Duty of a Police Officer – When an important document which bears on the
offence, alleged to have been committed by an accused is produced before police
officer some days later, the natural course for a police officer was to take charge of
the document under a panchanama or memo. – 1976 CRL.L.J. 713 BHAGWAN SINGH
V. STATE OF RAJASTHAN

Ss.114 and 172 – Non-examination of Investigating officer does not perse vitiate a
criminal trial – BIHARI PRASAD v. STATE OF BIHAR 1996 CRL.L.J. 1653 (SC)

Ss.162 and 537 (old) – Destruction of short notes of evidence of important

eyewitnesses prepared at the time of inquest – prejudice. In case of rioting and
murder, the sub-inspector who visited the scene of occurrence examined certain
eyewitnesses and prepared short notes of inquest evidence. These notes were
however destroyed by the Sub-Inspector when he prepared the inquest report –
Subsequently the Circle Inspector again examined these witnesses and prepared the
case diary, but there was nothing to show that their statements were the same that
 71

were made earlier at the inquest. Held – that the destruction of notes of Inquest
evidence constituted a flagrant violation of mandatory provision of Sec.162 Cr.P.C
Since the earlier statements made by the witnesses were never made available to the
accused on irresistible inference that the accused were prejudiced in their trial arose
and it could not be said that the accused had a fair trial. AIR 1952 MAD 229

S.154 - FIR – FIR in a criminal case and particularly in a murder case is a vital and
valuable piece of evidence for the purpose of appreciating evidence led at the trial.
The object of insisting prompt lodging of FIR is to obtain the earliest information
regarding the circumstances in which the crime was committed, including the names
of actual culprits and part played by them, the weapon, if any used so also the
names of eyewitnesses, if any. Delay in lodging the FIR often results in
embellishment, which is a creature of an after thought. On account of delay FIR not
only gets bereft of the advantage of spontaneity, danger also creeps in of the
introduction of colonized version or exaggerating story. One of the checks is the
receipt of the copy of FIR, called a special report in a murder case, by the local
Magistrate. If the report is received by the Magistrate, late it can give rise to an
inference that FIR was not lodged at the time it is alleged to have been recorded,
unless, of course the prosecution can offer a satisfactory explanation for the delay in
dispatching or receipt of a copy of FIR by the local Magistrate. – The second external
check equally important is the inquest report. Even though the inquest report
prepared under Sec.174 Cr.P.C is aimed at serving a statutory function, to lend
credence to the prosecution case, the details of the FIR and gist of statements
recorded during inquest proceedings get reflected in the report. The absence of those
details indicative of the fact that the prosecution story was still in an embargo state
and had not given any shape and the FIR came to be recorded later after due
deliberations and consultations. 1994 SCC (Crl) 1390 MEHARAJ SINGH V. STATE OF
U.P.

S.231 – Non – examination of witnesses of locality though statements of some of the

residents recorded. Non-explanation forthcoming – held prosecution version doubtful.
– Witness, brother of deceased – failure of witness to come to the rescue of his
deceased brother – presence at the scene doubtful. The locality where the incident
occurred was thickly populated one. There were several residential quarters as well
as shops and dispensaries nearby. AT the time of occurrence there were several
persons who have come out to purchase vegetables from nearby lane. The halwa
shop as well as the dispensaries of two medical practitioners near the place of
occurrence were upon. Even though statements of fear including one of the medical
practitioners were recorded none was called to the witness box. 1989 SCC (Crl) 585
STATE OF U.P. V. MADAN MOHAN AND OTHERS.

S.157 – Delay in sending FIR to Magistrate, FIR lodged on 10-11-1981 at about 4

p.m. reaching the Magistrate on 12.11.1981 – Held – delay rendered the FIR
suspicious in the absence of any explanation – 1995 SCC (Crl) 345 RADHA KRISHNA
NAIR AND OTHERS V. STATE OF KERALA

Ss.203 and 204(B) – Cr.P.C, 1898 – Dismissal of complaint – Sessions Judge ordering
further enquiry without notice to the accused – Held – When the code provides no
notice being issued to at the preliminary stage of taking cognizance and before
summons are being issued by the Magistrate it stands to reason that all proceedings
in revision at the instance of an aggrieved complainant when the case is thrown out,
can be gone into without notice to the accused – KONDA SESHA REDDY v. CHINNA
PULLAIAH - 1958 ALT 619

S.386 – Reversing the judgment of acquittal – appellate court must keep in mind very
vital considerations as to whether or not views taken by the lower court could be
reasonably possible – if the FIR is fabricated or brought into existence long after the
occurrence, the entire fabric of prosecution can collapse – 1980 CRL.L.J. 446 (SC)
S.NATARAJAN V. STATE OF MYSORE
 72

S.154 – FIR – Omission in FIR – Omission to mention dying declaration in FIR – held
– cannot by itself make the witness deposing about the dying declaration
unbelievable – (1997) 1 SCC 93 STATE OF M.P. v. DHIRENDRA KUMAR

If the judgment of Supreme Court is read along with the clarificatory order, the trial
shall be deemed to have commenced when the charges are framed and not when the
prosecution starts examining the witnesses in support of the charges - 1997(1) ALT
Crl 797 M.SADASIVA NARAYANA V. STATE OF A.P.

S.397 – It is now well settled that in exercise of revisional jurisdiction under section
397 Cr.P.C, the revisional court does not re-appreciate the evidence and findings of
fact recorded by the two courts below can be interfered with only when such findings
are perverse or based on no evidence or suffer from any error of law - 2002(1)
Crimes 662 (Bombay High court) SHANTARAM NILKHANTHA MESHRAM v. STATE OF
MAHARASHTRA

S.482 – Review of judgment/order is not permissible under the Code – Court cannot
under clock of Sec.482 exercise such power – there is no provision in the Code of
Criminal Procedure authorizing the High court to review its judgment passed either in
exercise of its appellate or revisional or original criminal jurisdiction. Such a power
cannot be exercised with the aid or under the clock of Sec.482. Sec.362 of the Code
mandates that no court, when it has signed its judgment or final order disposing of
the case shall alter or review the same except to correct a clerical or arithmetical
error. The section is based on acknowledged principle of law that once a matter is
finally disposed of by a court, the said court in the absence of a specific statutory
provision becomes functus officio and disentitles to entertain a fresh prayer for the
same relief unless the former order of final disposal is set aside, by a court of
competent jurisdiction in a manner prescribed by law. The court becomes functus
officio the moment the official order disposing of a case is signed. Such an order
cannot be altered except to the extent of correcting clerical or arithmetical error –
HARI SINGH MANN V HARBHAJAN SINGH BAJWA 2001 Crl.L.J. 128 SC

S.439 – Revision against acquittal by private party. No defect of procedure or

manifest error on point of law in trial court judgment. High Court cannot order retrial.
After a review of the earlier decisions, the extent of the jurisdiction of High Court in
the matter of interfering in revision against an order of acquittal has been laid down
by this court in K.Chinna Swamy Reddy v. State of A.P. AIR 1962 SC 1788 as
follows:
“ It is true that it is open to the High Court in revision to set aside an order of
acquittal even at the instance of private parties, though the State may not have
thought it fit to appeal, but the jurisdiction should in our opinion be exercised by the
High Court only in exceptional cases, when there is some glaring defect in the
procedure or there is manifest error on the part of law and consequently there has
been flagrant miscarriage of justice.”

Criminal trial – contradictions/exaggerations/embellishments/inconsistencies –

Material facts not stated to police – improvements made by sole eye witnesses – not
proper – Mere fact that the appellant was not proved to be good husband or father,
held would not ipsofacto lead to conclusion that he would commit the murder of his
wife. If that be so, to convict the appellant on the evidence of such a witness would
be hazardous – HASAN MURTUZA v. STATE OF HARYANA (2002) 3 SCC 1

S.164 – Statement recorded by the Magistrate under Sec.164 Cr.P.C is not

substantive piece of evidence – The same can only be used for contradicting the said
witness under Sec.145 of Evidence Act – PERIYASWAMY SANGE AND ANOTHER v.
STATE THROUGH PUBLIC PROSECUTOR 1997(2) ALT (Crl) 642 AP

Criminal Trial – Presumption of innocence – An accused is presumed to be innocent

until he is found guilty. The burden of proof that he is guilty is on the prosecution
and that the prosecution has to establish its case beyond all reasonable doubts. In
other words, the innocence of an accused can be dispelled by the prosecution only on
 73

establishing his guilt beyond all reasonable doubts on the basis of evidence – SOHAN
AND ANOTHER v. STATE OF HARYANA 2001 SCC (Crl) 587

S.161 – In circumstances where prosecution has suppressed documents, it is open to

a court to presume that the statements withheld would become favourable to the
prosecution, if produced. Non-furnishing of the statements recorded under S.161
Cr.P.C pertaining to P.Ws to the accused, has occasioned great prejudice to the
appellant/accused. KOTA PEDDA NAGESH V. STATE OF A.P. 1999(1) ALD (Crl) 519
AP - (A Division Bench of our High Court in Gaddam Jayaram Reddy 1959(1) AnWR
197 held that a deliberate destruction of statements of witnesses made during
investigation or wholesale refused to furnish copies of such statements leading to the
inference that prejudice was occasioned to the accused even otherwise slight
evidence of reasonable possibility of prejudice would swing the balance in favour of
the accused.

A cumulative reading of various provisions of Chapter XXXVI Cr.P.C indicates that the
limitation prescribed therein only for the complainant or initiation of the prosecution
and not for taking cognizance.
Taking cognizance is an act over which the prosecuting agency or the
complainant has no control. Therefore, a complaint filed within the period of
limitation under the Code cannot be made in fructuous by the act of court. The legal
phrase “actus curiae neminem gravabit” which means an act of the court shall
prejudice no man, or by a delay on the part of the court neither party should suffer –
BHART DAMODAR KALE V STATE OF A.P. 2004 SCC (CRL) 39
………

Accused cannot be convicted on the basis of statement before the police – has given
a complete goby and strut a death knell to the prosecution in his cross- examination
states that due to darkness he could not testify the culprits. The statement recorded
under section 161 Cr.P.C shall not be used for any purpose except to contradict a
witness in the manner prescribed in the provision to Sec.161 (1) Cr.P.C and that the
FIR is not a substantive piece of evidence – BALDEV SINGH V. STATE OF PUNJAB
AIR 1991 SC 31

METHODOLOGY OF INVESTIGATION

INVESTIGATION: Investigation means collection of evidence and to check

whether the information furnished to the police U/S 154 if it a Cognizable Offence is
correct or not. In case the information is correct and supported by oral statements of
witnesses who might have seen the incident or supported by valid documents
depending upon the nature of offence, the Police will file a Report U/S 173 of Cr.P.C.
Popularly called charge sheet, in case the information is false or incorrect the Police
can file a final report.
The Crimination Procedure Code defines investigation, which includes all
proceedings under the code for the collection of evidence conducted by the Police
Officer or by any other person (other than a Magistrate) who is authorized by
Magistrate in his behalf.
The powers of Police Officer differs from the when he is investigating a
cognizable offence from that of non-cognizable offence. Section 156(2) of the Cr.P.C.
gives un fettered powers to the Police to investigate into Cognizable Offence which
includes arrest of an accused without warrant. At the same time Section 157 of
Cr.P.C. permits the Police Officer to refuse investigation even in a Cognizable
Offence. When the information given is not of serious in nature and its appear to the
Police Officer that there is no need for proceeding with the investigation.
The first and foremost priority for the Investigating Officer is to understand
the contents of the First Information Report in a right perspective for which
he should follow 11 W formula.
 74

The Investigation Officer shall assess: (1) What, (2) Who, (3) Whom, (4)
When, (5) Where, (6) Why, (7) Which way, (8) Whose presence, (9) What was taken
away, (10) What was left behind, and (11) With what capacity and the second step
after assessing the First Information Report the investigating Officer shall under take
the following steps.
He has to carefully read the contents of F.I.R. or Compliant and next should
understand the nature and importance of the information so received. Then he must
record the same in the General Dairy popularly called G D entry. And there after
shall summon advanced party experts and the investigation team to assist the Officer
concerned and after wards he must carefully take the steps for identifing the
evidence if any to be collected and should also identify the victim and the location at
which the alleged offence might have taken place. Thereafter list out the witnesses
who is suppose to be acquainted with facts and further take the step of interpretation
of physical evidence. While taking the said step the primary duty of Investigating
Officer is to visit the scene of offence wherein he may get some clear cut clues as to
line of approach under taken by the accused for commiting the offence, and the point
of the entry used by the alleged accused and most important step to be followed in
the examining the scene proper thoroughly. Thereafter search for clues in any which
may be available on the spot so that the Investigation Officer may get some leads as
to point of exit and the line of retreat undertaken by the Accused.
Once the Investigation Officer get the thorough understanding of the scene of
offence he should be careful enough to take the assistance of the experts from the
various fields depending upon the nature of offence committed by the accused the
experts are these persons who are defined U/S 45 of Indian Evidence Act.
There are different types of experts dealing with the nature of the subject like
(1) Physics Expert, (2) Chemical Expert, (3) Biological Expert, (4) Medical Expert, Bio-
medical Expert, (6) Blood-Serology-D.N.A. Expert, (7) Dogs Scode, (8) Finger Prints
Experts, (9) Computer Experts, (10) Experts dealing with explosives, (11) Experts
dealing with Narcotics and Ballistics, (12) Photography Experts, (13) Toxicology
Experts etc., depending upon the requirements the services of the experts can be
utilized. The Apex Courts has discussed the evidentiary value of the experts opinion
vide AIR 1999 SC page 3318, AIR 2000 SC page 715.
When the Investigation Officer get some clinching clues with regarded to
participation of the accused in the crime he has to take another step of the
examination of the witnesses who are acquainted the Facts and to arrest the
accused in accordance with Law. In case the accused makes confession with
regard to the offence subject to Section 27 of Indian Evidence Act.
Depending upon the need a test identification parade can also be conducted
and the Investigating officer should collect documents which point towards
the guilt of the accused and after through analyzing if the evidence is against
the accused the I.O can file charge sheet under Section 173 Cr.P.C. if it is
other wise he can file final report in case final report is filed the complainant
can question the same by filing protest Petition.
To be more precise as to how investigation is carried on in offences pertaining
to life the following steps are followed by the Investigation Officer incase the victim is
surviving whether he requires medical assistance and the Victim can give statement
incase he is expecting death the I.O. shall take steps to record his dying declaration
preferably by Magistrate and start the examining the witnesses who first saw the
death or who saw when the Victim was last alive and also the investigation Officer
shall examine the position of the dead body and signs of struggle on the dead body
and inorder to support to investigation he shall minutely observe the details of the
dress, ornaments belonging the footwear used by the disceased and he shall note
down height, age. Sex. Tattoo marks, blood marks, discharge from mouth and
nosatrils if any and rigor mortis and the state of decomposition and after analyzing
the said evidence if such evidence points towards the guilt of accused he can file a
Charge Sheet.
To conclude after the Charge Sheet is filed in the appropriate Criminal court
and if such Court has got capacity to try the offence it can frame a Charge or else
can commit the same to sessions Court there after prosecution will let in evidence
and the accused will be entitled to cross examine the witmesses and depending upon
 75

the evidence the court may either convict or acquit the accused while rendering the
Judgment.

--oo0oo--
 **
INDIAN EVIDENCE ACT 1872

1) Law of Evidence: Lex fory: Determine the law of country where the question
arises, where the remedy is sought to be enforceable and where the courts sits to
enforce it.

2) Applicability of Indian Evidence Act: It extends to all judicial proceedings in

outside of the Court. It includes Court Marshal, other than convened under Army,
Navy and Air Force Act. It excludes affidavits and proceedings before arbitrator.

3) What is judicial proceeding?

Ans: In a proceeding, where the parties are entitled as of right to be heard and to
adduce evidence. Indian Evidence Act doesn’t applicable to quasi judicial
proceedings.

4) Courts which are not: Magistrate discharging duty under Section 164 Cr.P.C is not
a Court.

5) What is a fact?
Ans: Fact is physical and psychological….
 Intention is a question of fact.
 Grave and sudden provocation is a mixed question of fact and law.

6) Kinds of Evidence?
 Direct or circumstantial
 Primary or secondary
 Oral or documentary
 Original or hearsay
 Including video conference.

7) What is the best evidence?

Ans: Best evidence is always the direct evidence i.e. primary evidence. The rule of
best evidence expressed under Indian Evidence Act is in the provisions of Section 60,
64 and 91. (S.60-Oral evidence must be direct; S. 64: proof of documents by Primary
evidence; S.91- Evidence of terms of contract….reduced to form of document)

8) Where the circumstantial evidence pressed for?

 When the witnesses are wholly reliable – not pressed for.
 Wholly unreliable – not pressed for.
 Neither wholly reliable nor wholly unreliable – circumstantial evidence is
necessitated.

9) Chain of circumstantial evidence:

 In case of conviction on a circumstantial evidence all the links in the chain
must be complete so as to pointing out to the guilt of the accused.
 Formula: Strong motive + opportunity to commit crime + established
circumstances + explanation of the accused = the chain of circumstances.

10) Affidavit – Evidence:

 As per general rule of evidence, affidavit is no evidence. Affidavit is admissible
under Order 19 Rule 1 and under Section 139 CPC (oath on affidavit). Under
Section 295 and 296 Cr.P.C.(295: affidavit in proof of conduct of public
servants; 296: Evidence of formal character on affidavit.
 The amendment of CPC provides that in every case, the examination in chief
of a witness shall be on affidavit under Order 18 Rule 4.
 76

11) Evidence procured by illegal means and its effect?

 That the document was procured by illegal means cannot operate as a bar to
admission in evidence, but court will take into account the circumstances
under which it was procured in order to determine genuineness of the
document.
 In the absence of any prohibition in constitution or other any law, evidence
obtained by illegal search or seizure are admissible.
12) Validity of statement made in inquest report:
-----Statement made in the inquest report is of no evidence.

13) Marking of exhibits?

Ans: If a document is shown to a witness in a cross examination, it becomes an
exhibit.

14) Is it court accepts an inadmissible evidence by consent of the party?

Ans: Inadmissible evidence cannot be admitted in evidence even by consent.

15) FIR by accused – evidentiary value:

 FIR lodged by the accused cannot be used against him nor can it be used to
contradict or corroborate witnesses.
 The person lodged FIR stating certain facts containing no confessional
statement. He became an accused of offence subsequently; the statement is
admissible against him.
 The FIR lodged by the accused is admissible against him under Section 8 of IE
Act.

16) Statements of accused under Sec.313 of Cr.P.C.

 Statement of accused under Sec.313 Cr.P.C. is no evidence, and therefore,
the statement cannot be foundation for the conviction.

17) Corpus delicti: Conviction can be based on circumstantial evidence of murder

without being found of the corpus delicti.

18) Whether the court believes the testimony of previous convict in subsequent or
other proceedings?
Ans: Yes.

19) Hostile witness: Declaration of –

 When the prosecution witness not telling the truth, prosecution may under
Section 154 IE Act, can either cross examine him or may simply contradict
him under Proviso to Sub Sec.(1) of Section 162 Cr.P.C. In the former case
the witness is deemed to be declared as hostile.

20) Declaration of hostile – C.P.C. amendments:

Ans: If a situation as to declaring a witness hostile arises before commission
recording evidence, the concerned party shall have to obtain permission from the
court under Section 154 of IE Act and it is only after grant of such permission that
the commission can allow a party for cross examination of his own witness.

21) Is it corroboration is a requirement of law?

Ans: It is not a requirement of law. It is requirement of prudence and caution.

22) Corroboration is sine qua non in rape case?

Ans: It is not sine qua non.

23) The maxim Falsus in uno falsus in omnibus (false in one thing false in every
thing) is:
a) A rule of law b) a rule of practice c) a & b.
d) Rule of caution/rule of prudence. Ans: (d)
 77

24) Which of the following cannot be used as evidence in Court?

a) F.I.R. b) Police diary c) dying declaration d) 164 statements.
Ans: (b)
25) In the following two assertions what is the truth?
Assertion: 1: Civil decision is binding on the criminal court.
Assertion: 2: Criminal decisions are binding on the civil court.
a) Both are right. B) Assertion 1 is right. C) Assertion 2 is right. D) None.
Ans: (b).
26) In the following, which are defined in the Indian Evidence Act?
a) Relevant fact b) Confessions c) Fact d) None. Ans: (c)

27) When the writing obtained by the Court for the purpose comparison, in that
process the writing is?
a) the document, is evidence. b) the document, is not evidence.
c) that is not a document at all. d) None. Ans: (b)

28) The definition of ‘evidence’ in the Act:

a) incomplete one. b) exhaustive. c) (a) & (b); d) None. Ans: (a)
Note: Since it excludes statements and admissions of the parties, their conduct and
demeanor before the court, circumstances coming under the direct cognizance of the
Court, facts of which court can take judicial notice of; and the fact which the court
may or shall presume.

29) Sudha Devi Vs. M.P. Narayanan (AIR 1998 SC 139): Related to which of the
following:
a) affidavit is not evidence.
b) affidavit is evidence under Order 19 Rule 1 and 2 CPC. c) both d) none.
Ans: (c).

30) Being a direct evidence but it can be indirectly applied.

a) Circumstantial evidence b) Hearsay evidence. c) Negative evidence.d) All.
Ans: (a) only.

31) What is the probative value of the evidence?

Ans: The extent to which the particular evidence aids in proving the fact in
controversy is called as probative evidence.

32) In general the facts which are relevant are to be admissible in evidence, but
some of the facts so relevant may not be admissible. What are they?
 The communication made by the spouse during marriage. (S.122)
 The communication between an advocate and his client.(S.126)
The reverse is the case:
Some of the facts, which are admissible, but may not be relevant.
Questions permitted to be cross examined to test the veracity or to impeach
creditworthy of the witness. Though not relevant are admissible.
Note: The question of relevancy is the question of law to be decided by the Judge it
can be raised at any stage.

33) At the time of murder, the cry of deceased “save me” and that of the children
that their mother was ‘being killed’ are relevant under:
a) Sec.6 b) Sec.7 c) Sec.8 d) Sec.9

34) Tape recorder conversation is relevant under:

a) Sec.6 b) Sec.7 c) Sec.8 d) all the above.

35) The conduct of a man admissible only against him, the conduct of one accused is
not relevant against co-accused.(Sec.8)
a) yes b) No c) partly right or partly wrong. d) None.

36) Absconding of the accused:

 78

 The running away of an accused just after occurrence is evidence against

him, but the absconding never prove the guilt of the accused. A person
though innocent my be nervous and run away.
The above statement shows the subsequent conduct of the accused under Section:
a) Sec.8 b) Sec.7 c) Sec.9 d) None.

37) If one can weigh the evidence of ‘identity of foot marks’ and ‘identification of
finger prints’. What is the more relevant?
Ans: Identification of finger prints. (Sec.9)

38) The theory of agency is expressed under Section.

a) Sec.10 b) Sec.11 c) Sec.12 d) All the above.
Note: Hence every conspirator is agent of this association in carrying out the object
of conspiracy.

39) Section 10 deals with admissibility of evidence:

a) in a conspiracy case. b) in common intention c) in common object.d) all.

40) As per Sec.10, the thing done, said or written by any one of the members of the
conspiracy after the conspiracy is over are:
a) relevant b) irrelevant; c) inadmissible d) (b) & (c)
Note: Similarly, past and future things said or written are not relevant under Section
10.

41) Which is the residuary provision of relevancy under Indian Evidence Act.
Ans: Sec.11.
Note: The terms of Section 11 are no doubt vide, they must be read subject to the
other Sections of the Act and therefore, the fact relied on must be proved in
accordance with the provisions of the Act i.e. it is controlled by other provisions.

42) Under Section 11(1) of the Indian Evidence Act, the classes of case that arise for
consideration:
 Alibi
 Non access of husband to show illegitimacy of issue.
 Survival – of the alleged deceased.
 Commission – of an offence by a third person.
 Self infliction – of harm.

43) For determination of the damages in suit, the facts are relevant under Section:
a) Sec.12 b) Sec.13 c) Sec.11 d) None.

44) The expression “general custom” is defined to included customs common to any
considerable class of persons. It is defined under:
a) Sec.13 b) Sec.48 c) Sec.14 d) none.
Note:
When the right or custom in question:
 the facts which are relevant; u/s 13.
 Opinions as to existence of such right or custom: u/s 48.
 Statements made by the person not found: u/s 32(4)

45) Custom is
(a) question of law; (b) question of fact; (c) mixed question of fact and law (d)
None.

]46) The previous commission by the accused of an offence is relevant within the:
a) Sec.13; b) Sec.14; c) Sec.11; d) None.
Note: The previous convictions of such person shall also be a relevant fact.

47) Under Indian Evidence Act the following are not defined:
a) dying declarations; b) Confessions; c) Accomplice; d) All the above
 79

48) In India what binds the party in admission.

a) Admission of fact; b) Admission on point of law;
b) c) counsel’s admission on question of mixed law and fact; d) (a) & (c)

49) The concept of ‘vicarious admission’ is found expressed in:

a) Section 17; b) Section 19; c) Section 18; d) Section 20.
Note: Section 20 is the exception to the general rule laid down in Section 80.

50) Admissions are:

a) substantive piece of evidence; b) conclusive proof
c) corroborative; d) Non substantial.

51) Usually admission are relevant against the person who makes them but not on
behalf of the person who makes them except in the following instances:
a) Sec.32 b) Sec.14 c) Section 11; d) All.

52) The word ‘without prejudice to the interest of the party’ by other sense ‘without
prejudice communications’ is more relevant under:
a) Sec.22; b) Sec.23; c) Sec.24; d) None.

53) Admissions in civil cases when relevant.

a) without made upon an express condition that the evidence is not given
b) made upon an express condition that the evidence is not given.
c) circumstances are such that court cannot infer that the parties agreed that the
evidence is not given.
d) circumstances are such that court can infer that the parties agreed that the
evidence not given.
e) (a) & (c)

54) The following are not police officers.

 The officer of RPF.
 Customs Officer
 Mukhia
 Chowkidar
 Excise Officer
 Forest Officer in Madras;
 Prohibition Sub Inspector of Madras.

55) The “doctrine of confirmation” by subsequent events found expressed in:

a) Sec.27; b) Sec.28; c) Sec.24; d) Sec.25;

56) Whether Section 27 is an exception to Section 24 to 26 or a proviso to Section 24

to 26;
a) Proviso; b) Exception; c) Independent Provision; d) a & b.

57) Confession of co-accused is:

a) substantive evidence; b) direct evidence; c) circumstantial evidence;
d) a & b

58) Admission by a party in plaint may be used against him in other suits but such
admissions cannot be regarded as conclusive. The Statement is:
a) true; b) false; c) may be true; d) may be false.

59) The purpose and reason of the hearsay rule are based on two considerations:
 Necessity for the evidence and
 A circumstantial guarantee trustworthiness.

60) The dying declaration is:

a) direct evidence; b) indirect evidence; c) hearsay evidence;
d) substantive evidence.e) b, c and d.
 80

61) The term dying declaration is defined in:

 Ram Bihari Yadav Vs. State of Bihar (AIR 1988 SC 1850)
Note: The dying declaration although indirect evidence, but substantive piece of
evidence.

62) In Kansaraj Vs. State of Punjab (AIR 2000 SC 2324):

The Supreme Court made it clear that Section 32 does not require that statements
sought to be admitted in evidence should have been made in immediate expectation
of death.

63) Dying declaration:

 A dying declaration is inadmissible in evidence if it is incomplete.
 It has been laid down that if a portion of dying declaration is untrue, the rest
of it cannot be necessarily rejected. However, a part of it is shown to be false,
the court may decline to believe the rest without corroboration.

64) Among the following, what are the exceptions hearsay rules:
a) Section 32; b) Section 33; c) Section 60 & 61; d) a & b.

65) A Register kept on hotel counter under if it contains pecuniary transaction be

treated as books of accounts as per Section 34.
Ans: true.

66) The entries in electoral role are admissible under:

a) Section 35; b) Section 74; c) both; d) none.

67) Government Acts and notifications are admissible in evidence:

a) Section 37; b) Section 74; c) Section 38; d) All

68) Subsequent trial is barred under the same cause of action by:
a) Section 40 IEA; b) Section 11 CPC; c) Estoppels by record
d) Section 300 Cr.P.C.; e) All the above

69) When the judgment or order or decree is conclusive proof;

a) It confers any legal character;
b) which declares any legal character;
c) which takes away from any legal character from any such person
d) All the above.

70) The opinions of persons specially skilled are relevant under:

a) Section 30; b) Section 34; c) Section 42; d) Section 45.

71) The Opinions of the persons who special means of knowledge are relevant under:
a) Section 49; b) Section 45; c) Section 50; d) a & c

72) The proof of expert evidence: The opinion of expert will not be read into
evidence unless he is examined before the Court and is subject to cross examination,
an expert is not witness of fact, his evidence is only of advisory character.
 The opinion of the experts is not binding on the Judge.
 Expert evidence is a weak type of evidence.
 The evidence of doctor cannot over ride unimpeachable testimony of
eyewitness.
 The evidence of expert cannot outweigh direct evidence.
 The expert may give an account of experiments performed by him for the
purpose of forming his opinion.

73) In civil cases, character to prove conduct is irrelevant except;

a) when character itself is substance in issue.
b) when character is a matter of fact.
c) when character is irrelevant.
 81

d) None.

74) In criminal cases, previous character is relevant when:

a) character is good;
b) character is bad;
c) bad character is itself a fact in issue.
d) a & c.

75) The word character defined as it includes both reputation and disposition under:
a) Illustration to Sec.55; b) Sec.52; c) Sec.53; d) Sec.54

76) How many facts are given judicial notice by the Courts.
a) 10 factsd: b) 13 facts; c) only one fact; d) none.

77) What are the exceptions to the Rule of hearsay: (Proviso-1 to Sec.60)
 Admissions (S.17 to 23 & 31)
 Confessions (S.24 to 30)
 Statements made by persons dead or cannot be found.(32)
 Previous depositions of witnesses who is dead(33)
 Entries in books of accounts kept in the course of business.(34)
 Entries in public registers or records. (35)

78) When secondary evidence is not admissible: (Sec.65)

a) When original document is lost by worm eaten and in tottering
condition.
b) When original is not easily movable
c) When the original is public document.
d) None.
Note: No secondary evidence can be given of a deed which is inadmissible due to
want of registration.

79) When the electronic records are admissible as per Sec.65(b) of IE Act?
a) if it is produced by a person having lawful control over the use of computer.
b) If it is signed by a person occupying a responsible official position.
c) both are right;
d) None.

80) Comparison of Signature, writing or seal with others admitted or proved (Sec.73):
 Under Sec.45 handwriting and signature of person can be proved by an
expert.
 Sec.47 admits the opinion of any person acquainted with the handwriting of
any person by whom it is alleged to have been written.
 Sec.73 authoresses the Court to compare the disputed document with an
undisputed one.
 The value of the comparison: It is not province the expert to act as Judge or
Jury as rightly pointed out in Titli Vs. Jones. The real function of the expert is
to put before the court all the materials together with reasons which induce to
come to the conclusion. So that the Court although not an expert may form
it’s own judgment by its own observation of those materials.

81) The following are not public documents.

a) The plaint or written statement.
b) Date of birth certificate and Electoral roll;
c) Memorandum of identification proceedings.
d) a & c
Note: A copy obtained by a person who has no right to inspect a copy, obtained
illegally and is inadmissible in evidence.
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82) When the document is called for, not produced after notice to produce, shall be
presumed as genuinely executed under 89, it is the rule, this rule is based on:

a) the principle of necessity;

b) nonest factum
c) self incrimination.
d) rule of factum probandum

83) Under Section 90 of Indian Evidence Act, in respect of 30 year old copy of the
document, presumption attached to:
a) signatures which authenticating the copy may presumed genuine;
b) execution of document is genuine.
c) signature of the party to the document is genuine;
d) none the above.
Note: (1) If the document produced is a copy, admissible as secondary evidence
under Section 65 and is produced from proper custody and is over 30 years old, then
only the signature authenticating the copy may be presumed to be genuine, but
production of copy is sufficient to raise presumption of the due execution of the
original. (2) There can be presumption as to the genuineness of the document 30
years old bearing no name of the executants.

84) As per Section 91 one can adduce secondary evidence to prove the fact of
contract but not of the terms of the contract.
The above statement is:
a) suggestive of fact;
b) suggestive of presumption;
c) matter of procedure;
d) all.

85) Section 93 deals with patient ambiguity in which no oral evidence can be given to
remove patent activity of the document. Sec.95 deals with latent ambiguity in which
oral evidence can be given to remove latent ambiguity of the document.

86) Any patent ambiguity is taken place in any document to remove such ambiguity,
no secondary evidence are extrinsic evidence is not allowed, but this is an exception
to:
a) Section 80 of Indian Succession Act;
b) Construction of the wills; c) a & b; d) None.

87) The word ‘burden of proof’ is defined in:

a) Indian Evidence Act; b) Cr.P.C.; c) I.P.C.; d) None.

88) In burden of proving the case of accused in respect of exceptions the

presumption shall always towards that:
a) he has not committed the offence;
b) absence of such circumstance;
c) commission of the offence;
d) All the above;

89) When the person has not been heard for a period of seven years by his close
relatives, it is presumed that he is dead under Section 108; The period of seven years
will be reckoned from:
a) from the date of disappearance;
b) from the time of non-hearing by the relatives;
c) from the date of question of dead or alive is arisen;
d) All the above;
Note: Important decision; Md.Sharif Vs. Bande Ali Khan (ILR 1934 All.36);

90) Sec.107: Burden of proving the death of person known to have been alive within
30 years lies on;
a) the person who affirms it; b) the person who negatives it;
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c) neither (a )nor (b); d) irrelevant;

Note: The presumption under Section 108 extends to the fact of death at the
expiration of seven years and not to the time of death at any particular period.

91) The following which is the right;

a) the fact of possession suggests ownership under Sec.110;
b) burden of proof on the person who affirms as an owner;
c) in possession burden of proving ownership lies on no person.
d) a & b

92) Under Section 111 the burden of proof of good faith in transactions mentioned
under; lies on whom?
a) Transaction between disciple and guru;
b) Transaction with a pardanashini lady;
c) transaction between elder and children;
d) transaction between wife and husband;
In all the above transactions the burden of proving good faith lies on the person who
is in dominant position.
93) Section 112 applicable only in the following cases:(birth during the marriage is
conclusive proof)
a) during the valid marriage
b) born within 280 days after dissolution;
c) remaining unmarried for 280 days after dissolution
d) parties failed to show had no access to each other;
e) all the above;

94) Find out the non-relevant item;

a) Presumption under Sec.113A - - - Section 498A IPC;
b) Presumption under Sec.113B ---- Section 304B IPC;
c) Presumption under Sec. 114A ---- Section 376 IPC;
d) Presumption under Sec.114A -----Section 376(F) IPC;

95) Presumptions with regard to existence of common course of natural events,

human conduct and public and private business are relevant under:
a) Section 114; b) Sec.115; c) Sec.116 d) All the above;

96) What kind of estoppel is incorporating under Sec.115, 116 and 117 of Indian
Evidence Act:
a) Estoppel by record; b) Estoppel by deed;
c) Estoppel in pais i.e. estoppel by conduct; d) Estoppel of quasi records;

97) Estoppel is always used as:

a) Defiance; b) Evidence; c) Offence; d) None:

98) “Estoppel can give rise cause of action to file a suit or proceeding”;
The above said statement is:
a)true; b) false; c)may be true; d)may be false;

99) Existence of estoppel does not depends on:

a) motive; b) knowledge; c) neither (a) nor (b); d) (a) and (b);

100) No Estoppel can be claimed against;

(a) Government; b) statute; c)individual only; d)against corporation;

101) The recent development in the Law of Estoppel is :

(a) estoppel by conduct; b) estoppel by deed; c) promissory estoppel;
(d) not relevant;
102) What is the good authority indicating the promissory estoppel;
(a) M.P.Sugar Mills Ltd., Vs. State of UP (AIR 1979 SC 621)
(b) State Vs. Dhanapal; (AIR 1960 SC 120)
(c) Ram Pratigal Vs. Dwaraka (AIR 1967 SC 1134)
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(d) All the above;

Note: (1) There can be no promissory estoppel against the exercise of Legislative
power; (2) The doctrine of promissory estoppel has been invoked against
Government and the plea of executive necessity has been negativated;

103) Under Section 116 Estoppel operated between:

a) tenant & land lord; b) licencee and land lord; c) mortgagee and mortgagor;
d) All the above;

104) Estoppel under Section 117 operates between:

a) drawer and drawee; b) bailor and bailee; c) licensor and licencee;
d) All the above;

105) Who is the competent to give evidence;

a) all the persons; b) a lunatic;
c) all the persons subject to qualification;
d) a lunatic subject to restrictions; e) c and d only