Saturday, 15 August 2020

Questions and answer on law part 10


Q. Whether accused who has undergone imprisonment as undertrial can be granted set off if he is convicted and sentenced to rigorous imprisonment by court?
428. Period of detention undergone by the accused to be set-off against the sentence of imprisonment.—Where an accused person has, on conviction, been sentenced to imprisonment for a term [, not being imprisonment in default of payment of fine,] the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him:
Section 428 does not differentiate between rigorous and simple imprisonment. It is obligatory to give set off in the 'the term of imprisonment' for the period already undergone by the convict during the investigation, inquiry or trial of the same case and before the date of such conviction.


Q. When it is mandatory for landlord to issue eviction notice to tenant before filing eviction suit in small cause court?

Ans:- It is mandatory to issue notice to tenant if landlord is seeking eviction decree on ground of arrears of rent.If landlord is seeking eviction decree on any other ground,it is not necessary to issue eviction notice to tenant prior to filing of eviction suit in small cause court.
Relevant Caselaw:

Whether eviction suit can be dismissed if landlord fails to give notice to tenant prior to filing of suit?


Q. What procedure Jmfc should follow if he wants to give punishment for more than 3 year?
Ans: Jmfc should follow procedure as prescribed in S 325 of CRPC.
325. Procedure when Magistrate cannot pass sentence sufficiently severe.—(1) Whenever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, or, being a Magistrate of the second class, is of opinion that the accused ought to be required to execute a bond under Section 106, he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he is subordinate.
(2) When more accused than one are being tried together, and the Magistrate considers it necessary to proceed under sub-section (1), in regard to any of such accused, he shall forward all the accused, who are in his opinion guilty, to the Chief Judicial Magistrate.

(3) The Chief Judicial Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in the case and may call for and take any further evidence, and shall pass such judgment, sentence or order in the case as he thinks fit, and as is according to law.
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