Sunday, 11 September 2022

Questions and answers on law (Part 52)

 Q 1:- Whether victim has right to appeal against inadequate sentence to accused?

Ans:- Proviso to Section 372 ofCRPC (vide Act 5 of 2009) does not envisage right of appeal against inadequate sentence.

Q 2:- What is meant by Rule of law?

Ans:- Rule of law is the principle  that all people and institutions are subject to and accountable to law that is fairly applied and enforced; the principle of government by law.

Q 3:- What is retracted confession?

Ans:- Retracted confession is a statement made by an accused admitting the guilt before his trial and at the time of trial he repudiate said confession. 

Q 4:- What is the provision of O 2 R 2 of CPC?

Order II rule 2 of the Code of Civil Procedure bars splitting of reliefs, claimed in suits, on the same cause of action. The object is two-fold. First, defendants should not be vexed twice for the same cause of action and the second, to prevent multiplicity of suits. O.II r.2 Bar is Attracted Only When Inclusion of Relief is ‘Obligatory’, and ‘Not Optional’.Relief Claimed must have been ‘Available’ in the Earlier Suit

Q 5 :- Whether provision of S 438 of CRPC are applicable to SC & ST(Atrocities) Act?

Ans: No. As per  Section 18 in The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

18. Section 438 of the Code not to apply to persons committing an offence under the Act.—Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.

Q 6:- Whether court can rely on retracted confession?

 Ans:- Court is required to examine whether confessional statement was voluntary.  When court is satisfied that retracted confession is true and voluntary, same can be basis for conviction.

Q 7:- Which properties are not transferrable?

Ans:- Section 6 in The Transfer of Property Act, 1882

6. What may be transferred.—Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force,—
(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred;
(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby;
(c) An easement cannot be transferred apart from the dominant heritage;
(d) All interest in property restricted in its enjoyment to the owner personally cannot be transferred by him; 1[(dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred;]
(e) A mere right to sue 2[***] cannot be transferred;
(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable;
(g) Stipends allowed to military 3[naval], 4[air-force] and civil pensioners of the 5[Government] and political pensions cannot be transferred;
(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) 6[for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872)], or (3) to a person legally disqualified to be transferee; 7[(i) Nothing in this section shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate, under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee.]

Q 8:- Which are two parts of S 149 of IPC?

Ans:- The section is divided into two parts:

1. Offences that are committed by members of an unlawful assembly in prosecution of the common object of that assembly.
2. Offences that the members of that assembly knew to be likely to be committed in prosecution of the common object.
 In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part.

Q 9:- What is presumption in respect of abetment of suicide by married woman and under which section?

Ans:- Indian Evidence Act Section 113A. Presumption as to abatement of suicide by a married women

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 seven 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 the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation. –– For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).

Q 10:-  What are ingredients of offence U/S 306 of IPC?

More recently in M Arjunan vs State (represented by its Inspector of Police)25 , a two judge Bench of this Court, speaking through Justice R. 25 (2019) 3 SCC 315 PART I 39 Banumathi, elucidated the essential ingredients of the offence under Section 306 of the IPC in the following observations:

"7. The essential ingredients of the offence under Section 306 IPC are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied the accused cannot be convicted under Section 306 IPC."

Q 11:- Landmark Judgment on circumstantial evidence?

 Sharad Birdhichand Sarda Vs.  State of Maharashtra.

(1984) 4 SCC 116(1) 

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