JIGL ICSI EXAM PAPER DECEMBER 2020

JIGL ICSI EXAM PAPER DECEMBER 2020

Question 1

(a) ‘Justice, Equity and Good Conscience’ is the main Secondary Source of Indian

Law. Explain it.

(b) Discuss the ‘Doctrine of Eclipse’ under the Constitution of India.

(c) Section 41 of the Criminal Procedure Code, 1973 enumerates the different categories of cases in which a police officer may arrest a person without an order from a Magistrate and without a warrant. Explain any five Categories of such cases.

(d) Explain the ‘Purposive Rule’ of Interpretation, under the General Clauses Act,

1897. (5 marks each)

Answer 1(a)

The concept of “justice, equity and good conscience” was introduced by Impey’s

Regulations of 1781. In personal law disputes, the courts are required to apply the

personal law of the defendant if the point at issue is not covered by any statute or

custom. In the absence of any rule of a statutory law or custom or personal law, the

Indian courts apply to the decision of a case what is known as “justice, equity and good

conscience”, which may mean the rules of English Law in so far as they are applicable

to Indian society and circumstances.

The Ancient Hindu Law had its own versions of the doctrine of justice, equity and

good conscience. In its modern version, justice, equity and good conscience as a source

of law, owes its origin to the beginning of the British administration of justice in India.

The Charters of the several High Courts established by the British Government directed

that when the law was silent on a matter, they should decide the cases in accordance

with justice, equity and good conscience. Justice, equity and good conscience have

been generally interpreted to mean rules of English law on an analogous matter as

modified to suit the Indian conditions and circumstances.

The Supreme Court has stated that it is now well established that in the absence of

any rule of Hindu Law, the courts have authority to decide cases on the principles of

justice, equity and good conscience unless in doing so the decision would be repugnant

to, or inconsistent with, any doctrine or theory of Hindu Law.

Answer 1(b)

According to Article 13 of the Constitution of India an existing law inconsistent with

a fundamental right became in-operative from the date of the commencement of the Constitution, yet it is not dead altogether. A law made before the commencement of the

Constitution remains eclipsed or dormant to the extent it comes under the shadow of the

fundamental rights, i.e. is inconsistent with it, but the eclipsed or dormant parts become

active and effective again if the prohibition brought about by the fundamental rights is

removed by the amendment of the Constitution. This is known as the doctrine of eclipse.

The doctrine was first evolved in Bhikaji Narain Dhakras v. State of M.P., A.I.R.

1955 S.C. 781. In this case, the validity of C.P. and Berar Motor Vehicles Amendment

Act, 1947, empowering the Government to regulate, control and to take up the entire

motor transport business was challenged. The Act was perfectly a valid piece of legislation

at the time of its enactment. But on the commencement of the Constitution, the existing

law became inconsistent under Article 13(1), as it contravened the freedom to carry on

trade and business under Article 19(1)(g). To remove the infirmity the Constitution (First

Amendment) Act, 1951 was passed which permitted creation by law of State monopoly

in respect of motor transport business. The Court held that the Article by reason of its

language could not be read as having obliterated the entire operation of the inconsistent

law or having wiped it altogether from the statute book. In case of a pre-Constitution law

or statute, it was held, that the doctrine of eclipse would apply. The relevant part of the

judgement is:

“The true position is that the impugned law became as it were, eclipsed, for the time

being, by the fundamental right. The effect of the Constitution (First Amendment) Act,

1951 was to remove the shadow and to make the impugned Act free from all blemish or

infirmity.”

Answer 1(c)

Section 41 of the Criminal Procedure Code 1973, enumerates different categories of

cases in which a police officer may arrest a person without an order from a Magistrate

and without a warrant. Any police officer may without an order from a Magistrate and

without a warrant, arrest any person–

(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information

has been received, or a reasonable suspicion exists that he has committed a

cognizable offence punishable with imprisonment for a term which may be less

than seven years or which may extend to seven years whether with or without

fine, if the following conditions are satisfied, namely:–

(i) the police officer has reason to believe on the basis of such complaint,

information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary–

a. to prevent such person from committing any further offence; or

b. for proper investigation of the offence; or

c. to prevent such person from causing the evidence of the offence to

disappear or tampering with such evidence in any manner; or

d. to prevent such person from making any inducement, threat or promise

to any person acquainted with the facts of the case so as to dissuade

him from disclosing such facts to the Court or to the police officer; or e. as unless such person is arrested, his presence in the Court whenever

required cannot be ensured, and the police officer shall record while

making such arrest, his reasons in writing:

Provided that a police officer shall, in all cases where the arrest of a

person is not required under the provisions of this sub-section, record

the reasons in writing for not making the arrest.

(ba) against whom credible information has been received that he has committed a

cognizable offence punishable with imprisonment for a term which may extend

to more than seven years whether with or without fine or with death sentence

and the police officer has reason to believe on the basis of that information that

such person has committed the said offence;

(c) who has been proclaimed as an offender either under this Code or by order of

the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to

be stolen property and who may reasonably be suspected of having committed

an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has

escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces

of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been

made, or credible information has been received, or a reasonable suspicion

exists, of his having been concerned in, any act committed at any place out of

India which, if committed in India, would have been punishable as an offence,

and for which he is, under any law relating to extradition, or otherwise, liable to

be apprehended or detained in custody in India; or

(h) who being a released convict, commits a breach of any rule made under sub-

section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from

another police officer, provided that the requisition specifies the person to be

arrested and the offence or other causes for which the arrest is to be made and

it appears therefrom that the person might lawfully be arrested without a warrant

by the officer who issues the requisition.

Answer 1(d)

In Halsbury’s Laws of England, it is stated: Parliament intends that an enactment

shall remedy a particular mischief and it is therefore presumed that Parliament intends

that the court, when considering, in relation to the facts of the instant case, which of the

opposing constructions of the enactment corresponds to its legal meaning, should find a

construction which applies the remedy provided by it in such a way as to suppress that

mischief. The doctrine originates in Heydon’s case where the Barons of the Exchequer

resolved that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned

and considered:

— what was the common law before the making of the Act;

— what was the mischief and defect for which the common law did not provide;

— what remedy Parliament has resolved and appointed to cure the disease of the

commonwealth; and

— the true reason of the remedy, and then the office of all the judges is always to

make such construction as shall –

– suppress the mischief and advance the remedy; and

– suppress subtle inventions and evasions for the continuance of the mischief

pro private commode (for private benefit); and

– add force and life to the cure and remedy according to the true intent of the

makers of the Act pro publico (for the public good).

Attempt all parts of either Q. No. 2 or Q. No. 2A

Question 2

(a) Distinguish between Battery and Assault as enumerated under the Law of Torts.

(b) Distinguish between ‘Libel’ and ‘Slander’ under Indian Penal Code, 1860.

(c) Distinguish between ‘Primary Evidence’ and ‘Secondary Evidence’, under the

Indian Evidence Act, 1872.

(d) Explain the terms ‘Patta’ and ‘Kabuliyat’, under the Indian Stamp Act, 1899.

(4 marks each)

OR (Alternate question to Q. No. 2)

Question 2A

(i) Discuss the provisions of Sections 14 and 15 of Inforrnation Technology Act,

2000, on secure electronic records.

(ii) How ‘Decree’ is defined under Section 2(2) of the Civil Procedure Code, 1908

and mention essentials of a Decree.

(iii) Explain any four rights of a party to appear before the National Company Law

Tribunal, under the Companies Act, 2013.

(iv) Discuss any four Extra Judicial Remedies under Law of Torts.

(4 marks each)

Answer 2(a)

Battery

Any direct application of force to the person of another individual without his consent

or lawful justification is a wrong of battery. To constitute a tort of battery, therefore, two

things are necessary: (i) use of force, however, trivial it may be without the plaintiff’s

consent, and (ii) without any lawful justification. Even though the force used is very

trivial and does not cause any harm, the wrong is committed. Thus, even to touch a

person in anger or without any lawful justification is battery.

Assault

Assault is any act of the defendant which directly causes the plaintiff immediately

to apprehend a contact. Thus, when the defendant by his act creates an apprehension in

the mind of the plaintiff that he is going to commit battery against him, the tort of assault

is committed. The law of assault is substantially the same as that of battery except that

apprehension of contact, not the contact itself has to be established. Usually when

there is a battery, there will also be assault, but not for instance, when a person is hit

from behind. To point a loaded gun at the plaintiff, or to shake first under his nose, or to

curse him in a threatening manner, or to aim a blow at him which is intercepted, or to

surround him with a display of force is to assault him clearly if the defendant by his act

intends to commit a battery and the plaintiff apprehends it, is an assault.

Answer 2(b)

In libel, the defamatory statement is made in some permanent and visible form,

such as writing, printing or pictures. In slander it is made in spoken words or in some

other transitory form, whether visible or audible, such as gestures or in articulate but

significant sounds.

Libel is a representation made in some permanent form, e.g. written words, pictures,

caricatures, cinema films, effigy, statue and recorded words. In a cinema films both the

photographic part of it and the speech which is synchronized with it amount to tort.

Slander is the publication of a defamatory statement in a transient form; statement

of temporary nature such as spoken words, or gestures.

Generally, the punishment for libel is more severe than for slander.

In India both libel and slander are treated as a crime. Section 499 of the Indian

Penal Code recognizes both libel and slander as an offence. However, punishments in

criminal law are stricter than in law of tort.

Answer 2(c)

“Primary evidence” means the document itself produced for the inspection of the

Court (Section 62 of the Indian Evidence Act, 1872). The rule that the best evidence

must be given of which the nature of the case permits has often been regarded as

expressing the great fundamental principles upon which the law of evidence depends.

The general rule requiring primary evidence of producing documents is commonly said

to be based on the best evidence principle and to be supported by the so called

presumption that if inferior evidence is produced where better might be given, the latter

would tell against the withholder.

“Secondary evidence” is generally in the form of compared copies, certified copies

or copies made by such mechanical processes as in themselves ensure accuracy.

Section 63 of the Indian Evidence Act, 1872 defines the kind of secondary evidence

permitted by the Act. According to Section 63, “secondary evidence” means and includes.

(1) certified copies given under the provisions hereafter contained; (2) copies made from the original by mechanical processes which in themselves

ensure the accuracy of the copy, and copies compared with such copies;

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document given by some person who has

himself seen it.

Section 65 stipulates the cases in which secondary evidence relating to documents

may be given. As already stated, documents must be proved by primary evidence but in

certain cases for example, where the document is lost or destroyed or the original is of

such a nature as not to be easily, movable, or consists of numerous documents, or is a

public document or the original is a document that under the Indian Evidence Act or

some law is allowed to be given in evidence by a certified copy, the existence, condition

or contents of the document may be proved by secondary evidence.

Answer 2(d)

Lease” means a lease of immovable property and includes also a patta; a kabuliyat

or other undertaking in writing, not being a counterpart of a lease to cultivate, occupy or

pay or deliver rent for, immovable property;

Patta - A patta is an instrument given by the Collector of District or any other

receiver of the revenue, to the cultivator, specifying the condition or conditions upon

which the lands are to be held and the value or proportion of the produce to be paid

therefor.

Kabuliyat - A Kabuliyat is executed by the lessee, accepting the terms of the lease

and undertaking to abide by them. Although, it is not a lease under Section 105 of the

Transfer of Property Act, it is expressly included in the definition for the purposes of the

Stamp Act.

Answer 2A(i)

The Central Government under the Information Technology Act, 2000 may prescribe

the security procedure for electronic records, having regard to the commercial

circumstances prevailing at the time when the procedure is used (Section 16). When the

security procedure has been applied to an electronic record at a specific point of time,

then such record is deemed to be a secure electronic record, from such point of time to

the time of verification. (Section 14)

An electronic signature shall be deemed to be a secure electronic signature if—

(i) the signature creation data, at the time of affixing signature, was under the

exclusive control of signatory and no other person; and

(ii) the signature creation data was stored and affixed in such exclusive manner as

may be prescribed. (Section 15).

Answer 2A(ii)

“Decree” is defined in Section 2(2) of the Civil Procedure Code, 1908 as (i) the

formal expression of an adjudication which, so far as regards the Court expressing it; (ii) conclusively; (iii) determines the rights of the parties; (iv) with regard to all or any of the

matters in controversy; (v) in the suit and may be either preliminary (i.e. when further

proceedings have to be taken before disposal of the suit) or final.

But decree does not include:

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

(b) any order of dismissal for default.

Essentials of a decree are:

— There must be a formal expression of adjudication.

— There must be a conclusive determination of the rights of the parties.

— The determination must be with regard to or any of the matters in controversy in

the suit.

— The adjudication should have been given in the suit.

Answer 2A(iii)

Rule 45 of the NCLT Rules deals with rights of a party to appear before the Tribunal.

According to Rule 45:

(1) Every party may appear before a Tribunal in person or through an authorised

representative, duly authorised in writing in this behalf.

(2) The authorised representative shall make an appearance through the filing of

Vakalatnama or Memorandum of Appearance in Form No. NCLT - 12 representing

the respective parties to the proceedings.

(3) The Central Government, the Regional Director or the Registrar of Companies

or Official Liquidator may authorise an officer or an Advocate to represent in the

proceedings before the Tribunal.

(4) The officer authorised by the Central Government or the Regional Director or the

Registrar of Companies or the Official Liquidator shall be an officer not below

the rank of Junior Time Scale or company prosecutor.

(5) During any proceedings before the Tribunal, it may for the purpose of its

knowledge, call upon the Registrar of Companies to submit information on the

affairs of the company on the basis of information available in the MCA21 portal.

Reasons for such directions shall be recorded in writing.

(6) There shall be no audio or video recording of the Bench proceedings by the

parties or their authorised representatives.

Answer 2A(iv)

Extra Judicial remedies under Law of torts are available in certain cases. It is lawful

to redress one’s injuries by means of self-help without recourse to the court; these are

as under:

(a) Self Defence - It is lawful for any person to use reasonable forces to protect

himself, or any other person against any unlawful use of force.

(b) Prevention of Trespass - An occupier of land or any person with his authority

may use reasonable force to prevent trespassers entering or to eject them but

the force should be reasonable for the purpose.

(c) Re-entry on Land - A person wrongfully disposed of land may retake possession

of land if he can do so in a peaceful and reasonable manner.

(d) Re-caption of Goods - It is neither a crime nor a tort for a person entitled to

possession of a chattel to take it either peacefully or by the use of a reasonable

force from one who has wrongly taken it or wrongfully detained it.

(e) Abatement of Nuisance - The occupier of land may lawfully abate (i.e. terminate

by his own act), any nuisance injuriously affecting it. Thus, he may cut

overhanging branches as spreading roots from his neighbour’s trees, but (i)

upon giving notice; (ii) by choosing the least mischievous method; (iii) avoiding

unnecessary damage.

(f) Distress Damage Feasant - An occupier may lawfully seize any cattle or any

chattel which are unlawfully on his land doing damage there and detain them

until compensation is paid for the damage. The right is known as that of distress

damage feasant-to distrain things which are doing damage.

Question 3

(a) State any four obligations of Public Authority prescribed under Section 4(1)(b)

of the Right to Information Act, 2005.

(b) The test of ‘Sufficient Cause’ is purely an individualistic test, under the Limitation

Act, 1963. Clarify.

(c) State the provisions of Section 25 in Arbitration and Conciliation Act, 1996

regarding default of a party.

(d) ‘‘Section 32 of the Registration Act, 1908 specifies the persons who can present

documents for registration’’. Narrate them.

(4 marks each)

Answer 3(a)

Every public authority under the Act has been entrusted with a duty to maintain

records and publish manuals, rules, regulations, instructions, etc. in its possession as

prescribed under the Act. [Section 4(1)(a) RTI Act, 2005]

As per Section 4(1)(b), every public authority has to publish the following within one

hundred and twenty days of the enactment of this Act:

• the particulars of its organization, functions and duties;

• the powers and duties of its officers and employees;

• the procedure followed in its decision making process, including channels of

supervision and accountability;

• the norms set by it for the discharge of its functions;

• the rules, regulations, instructions, manuals and records used by its employees

for discharging its functions;