Friday 30 July 2021

Questions and answers on law Part 25


Q 1:-  Whether application for review of order passed in review application is maintainable?

Ans: No as per O 47 R 9 of CPC.

Rule 9 Order XLVII of Code of Civil Procedure 1908 "Bar of certain application"

No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained.

Q 2:- Whether magistrate can extend the time for filing chargesheet in IPC cases?

Ans:- Chargesheet can be filed at any time as magistrate cannot reject a chargesheet. The period of 60/90 days is in respect of maximum period of detention and right of default bail when accured. Hence, no provision of law empower a magistrate to extend this time period. Therefore the extension of limitation by SC during covid period is not made applicable to charge-sheet.

Q 3: A murdered B and B was laying on road. C thought B is alive and shoot him. What offence C has committed?

Ans: Section 511 in The Indian Penal Code
511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.—Whoever attempts to commit an offence punishable by this Code with 1[imprisonment for life] or imprisonment, or to cause such an offence to be commit­ted, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with 2[imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprison­ment provided for that offence], or with such fine as is provided for the offence, or with both. Illustrations
(a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this section.
In the present case,C has intention to kill B and does an act in furtherance of it even though he is not successful in it as as that person was already dead. Hence offence U/ S 511 of IPC is made out against him.

Q 4:Whether an order of abatement of suit amounts to a decree?

Ans: No as per definition of decree under section 2 (2) of CPC, it is not final adjudication of suit.
S 2 of CPC,

(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, 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. It shall be deemed to include the rejection of a plaint and the determination of any question within 1[** *] section 144, but shall not include--

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

O 22 R 9 of CPC:- Effect of abatement or dismissal.

(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3) The provisions of section 5 of the Indian Limitation Act, 1877 shall apply to applications under sub-rule (2).

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