Q 1:- Whether court can direct attachment of property of Judgment debtor if court passes decree for rent or mesne profits but rent or mesne profits are not determined?
Ans:- O 21 R 42. of CPC Attachment in case of decree for rent or mesne profits or other matter, amount of which to be subsequently determined.—Where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him has ascertained, be attached, as in the case of an ordinary decree for the payment of money.
Q 2:- Whether a party can waive the plea of res judicata?
Ans : Waiver of the plea-
The plea of res judicata is not one which affects the jurisdiction of court. It is plea which a party may waive. If a party does not raise the plea of res judicata, it will be deemed to be decided against him.
Q 3:- Whether Magistrate can record statement of victim U/S 164 of CRPC if accused is absconding?
Ans:- Recording of the statement of the victim of a crime or the witness has no connection with the presence or absence of the accused. After the amendment in code of criminal procedure, it is mandatory for the investigation agency to forward the victim of sex offence or molestation to the nearest magistrate for recording her statement. There is no escape from this exercise. In other cases also, it is for the investigation officer to decide whether he should get statement of any witness recorded before magistrate or not. It is immaterial as to whether the accused has been arrested or is absconding.
Q 4:- Whether court can convict accused for an offence U/S 354 of IPC even though charge against him is framed only under S 354B of IPC?
Ans: Section 354 - Assault or criminal force to woman with intent to outrage her modesty reads as under: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine. On the other hand, Section 354B is about Assault or use of criminal force to woman with intent to disrobe. It reads as under: Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine. Element of assault or criminal force is common in both sections noted above. Intention or likelihood of outraging modesty is mentioned in Section 354 whereas abetment with intention of disrobing or compelling her to be naked is mentioned in Section 354B. It appears that Section 354B provides punishment harsher than Section 354. It also appears that Section 354B is major penalty whereas 354 is minor one. 354B requires naked or disrobing act and 354 require only outrage of modesty. As bigger part of act is punishable under Section 354B, no harm or prejudice can be said to cause to accused even if charge under Section 354 is not framed. In my opinion, Accused can be convicted for minor offence Section 354 of IPC even though no charge was framed in that section.
Q 5:What is basic concept of bail?
Ans: - Temporary release of accused with or without surety till conclusion of the trial subject to conditions so that his presence can be secured during trial.
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