Comprehension
Criminal law is the most direct expression of the relationship between a state and its citizens. Criminal sanction is indeed the most coercive method of regulating an individual‘s behaviour which any state may deploy. The degree of coercion under criminal law is qualitatively different from the outcome in a dispute under civil law. The purpose of criminal law is to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests. Feinberg explains the harm principle in following words: 'It is always a good reason in support of penal legislation that it would probably be effective in preventing (eliminating, reducing) harm to persons other than the actor and there is probably no other means that is equally effective at no greater cost to other values'.
Question: 1
Which of the following reformed Criminal Law?
Which of the following reformed Criminal Law?
Updated On: Jul 19, 2024
- Malimath Committee
- Justice M. N. Venkatachaliah Commitee
- 52nd Law Commission Report
- All of the above.
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The Correct Option is A
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The correct Option is (A):Malimath Committee
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Question: 2
Under Indian Penal code 'Culpable homicide‘ is first defined, but 'homicide‘ is not defined at all. 'Culpable homicide‘, the genus, and 'Murder‘, the species, are defined in terms so closely that it is difficult to distinguish them. The distinction between 'Culpable homicide‘ and 'Murder‘ was criticised as the 'weakest part of the code‘ by
Under Indian Penal code 'Culpable homicide‘ is first defined, but 'homicide‘ is not defined at all. 'Culpable homicide‘, the genus, and 'Murder‘, the species, are defined in terms so closely that it is difficult to distinguish them. The distinction between 'Culpable homicide‘ and 'Murder‘ was criticised as the 'weakest part of the code‘ by
Updated On: Jul 11, 2024
- Glanville Williams
- Jamesh Stephen
- Jeremy Bentham
- Simith & Hogan
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The Correct Option is B
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The correct Option is (B):Jamesh Stephen
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Question: 3
Lately Indian Criminal Law has been moving away from the above mentioned classical Principles of Criminal Law. Which one of the following does not demonstrate this shift?
Lately Indian Criminal Law has been moving away from the above mentioned classical Principles of Criminal Law. Which one of the following does not demonstrate this shift?
Updated On: Jul 19, 2024
- Creation of new crimes.
- Shift in Burden of Proof
- Presumption of Guilt
- Broader definitions of crimes
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The Correct Option is A
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The correct Option is (A):Creation of new crimes.
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Question: 4
The accused must be given death penalty to satisfy the ‗collective conscience of the society‘. Is this the correct method of determining sentence?
The accused must be given death penalty to satisfy the ‗collective conscience of the society‘. Is this the correct method of determining sentence?
Updated On: Aug 22, 2024
- Yes
- No
- Yes, in Terror and Sedition Cases
- No, as what others think is irrelevant in deciding punishment
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The Correct Option is D
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The correct Option is (D):No, as what others think is irrelevant in deciding punishment
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Question: 5
In determining the sentence, which of following factors are to be taken into consideration?
In determining the sentence, which of following factors are to be taken into consideration?
Updated On: Jul 11, 2024
- Aggravating Factors
- Mitigating Factors
- Both Aggravating & Mitigating Factors
- Collective Conscience of the Society
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The Correct Option is C
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The correct Option is (C):Both Aggravating & Mitigating Factors
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Question: 6
The Supreme Court itself admitted in Santosh Kumar Bariyar (2009) that death penalty is imposed ‘arbitrarily or freakishly‘. The court made a candid admission in saying that ’there is no uniformity of precedents‘. In Sangeet (2013), the Court yet again acknowledged that ‘principled sentencing‘ has become ’judge centric‘. In Swami Shraddhananda (2008), the Court said, award of death sentence depends on the ‘personal predilection of judges‘ and there is ’lack of uniformity‘ in capital punishment. Which of the following statements is correct?
The Supreme Court itself admitted in Santosh Kumar Bariyar (2009) that death penalty is imposed ‘arbitrarily or freakishly‘. The court made a candid admission in saying that ’there is no uniformity of precedents‘. In Sangeet (2013), the Court yet again acknowledged that ‘principled sentencing‘ has become ’judge centric‘. In Swami Shraddhananda (2008), the Court said, award of death sentence depends on the ‘personal predilection of judges‘ and there is ’lack of uniformity‘ in capital punishment. Which of the following statements is correct?
Updated On: Jul 11, 2024
- Award of Death Penalty depends on law and is given in rarest of rare cases.
- Award of Death Penalty depends on personal ideologies of judges.
- (a) & b) both are correct.
- (a) is wrong.
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The Correct Option is B
Solution and Explanation
The correct Option is (B):Award of Death Penalty depends on personal ideologies of judges.
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Question: 7
In Machhi Singh (1983) a three judge bench listed five parameters to decide whether case falls within 'rarest of rare‘ such as the manner of commission of crime i.e. brutality, motive, anti-social or abhorrent nature of crime, magnitude of crime and personality of victim i.e. child, women or leader loved by people etc. Which parameter laid down by the constitution bench in Bachan Singh was left out?
In Machhi Singh (1983) a three judge bench listed five parameters to decide whether case falls within 'rarest of rare‘ such as the manner of commission of crime i.e. brutality, motive, anti-social or abhorrent nature of crime, magnitude of crime and personality of victim i.e. child, women or leader loved by people etc. Which parameter laid down by the constitution bench in Bachan Singh was left out?
Updated On: Jul 11, 2024
- Too much importance was given to 'Crime‘ but 'Criminal‘ was left out.
- Impact on society
- Intent
- Weapons used in the commission of crime
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The Correct Option is A
Solution and Explanation
The correct Option is (A):Too much importance was given to 'Crime‘ but 'Criminal‘ was left out.
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Question: 8
Who had said that 'The Indian Penal Code is to the English criminal law what a manufactured article ready for use is to the materials out of which it is made. It is to the French Penal Code and, I may add, to the North German Code of 1871, what a finished picture is to a sketch. It is far simpler, and much better expressed, than Livingston‟s Code for Louisiana; and its practical success has been complete.‘?
Who had said that 'The Indian Penal Code is to the English criminal law what a manufactured article ready for use is to the materials out of which it is made. It is to the French Penal Code and, I may add, to the North German Code of 1871, what a finished picture is to a sketch. It is far simpler, and much better expressed, than Livingston‟s Code for Louisiana; and its practical success has been complete.‘?
Updated On: Aug 22, 2024
- Lord Macaulay
- James Stephen
- Hari Singh Gaur
- Justice Krishna Iyer
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The Correct Option is B
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The correct Option is (B): James Stephen
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Question: 9
Justice Fitzgerald observed: 'The law of conspiracy is a branch of our jurisprudence to be narrowly watched, to be zealously regarded and never to be pressed beyond its true limits.‘ Under Section 149, mere membership of the assembly without any participation in the crime is sufficient. In the light of this statement, whether punishment of conspiracy by mere agreement and under Section 149 by mere presence be deleted from the IPC?
Justice Fitzgerald observed: 'The law of conspiracy is a branch of our jurisprudence to be narrowly watched, to be zealously regarded and never to be pressed beyond its true limits.‘ Under Section 149, mere membership of the assembly without any participation in the crime is sufficient. In the light of this statement, whether punishment of conspiracy by mere agreement and under Section 149 by mere presence be deleted from the IPC?
Updated On: Jul 11, 2024
- Yes, if we believe in liberal and enlightened criminal jurisprudence
- No, if we are status quoist
- No, Conspiracy must remain punishable by mere agreement
- No, mere presence should be enough
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The Correct Option is A
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The correct Option is (A):Yes, if we believe in liberal and enlightened criminal jurisprudence
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Question: 10
Criminal Law Revision must reflect
Criminal Law Revision must reflect
Updated On: Jul 11, 2024
- Deterrent theory with the aim to prevent crime.
- Retributive theory consistent with the scheme of victim compensation
- Reformative theory consistent with democratic values and civil liberties
- None of the above.
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The Correct Option is C
Solution and Explanation
The correct Option is (C):Reformative theory consistent with democratic values and civil liberties
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- The Hon’ble Supreme Court in the case of ‘Nil Ratan Kundu and another v. Abhijit Kundu’ 2008(3) Apex Court Judgements 232 (SC), while granting the custody to the maternal grandparents observed: In our judgement, the law relating to custody of a child is fairly well settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem in live in relationship and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, may bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favorable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable consideration. If the minor is old enough to form an intelligent preference or judgement, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.
The Hon’ble Supreme Court in the case of ‘Gaurav Nagpal v. Semedha Nagpal’-(2009)1 SCC 42, while giving paramount importance to the welfare of the child, which should include moral and ethical values, besides ethical well-being, observed as under:
When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case, the Court has to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favorable surroundings, but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.
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- The Companies Act, 2013 does not deal with insolvency and bankruptcy when the companies are unable to pay their debts or the aspects relating to the revival and rehabilitation of the companies and their winding up if revival and rehabilitation is not possible. In principle, it cannot be doubted that the cases of revival or winding up of the company on the ground of insolvency and inability to pay debts are different from cases where companies are wound up under Section 271 of the Companies Act, 2013. The two situations are not identical. Under Section 271 of the Companies Act, 2013, even a running and financially sound company can also be wound up for the reasons in clauses (a) to (e). The reasons and grounds for winding up under Section 271 of the Companies Act, 2013 are vastly different from the reasons and grounds for the revival and rehabilitation scheme as envisaged under the IBC. The two enactments deal with two distinct situations and in our opinion, they cannot be equated when we examine whether there is discrimination or violation of Article 14 of the Constitution of India. For the revival and rehabilitation of the companies, certain sacrifices are required from all quarters, including the workmen. In case of insolvent companies, for the sake of survival and regeneration, everyone, including the secured creditors and the Central and State Government, are required to make sacrifices. The workmen also have a stake and benefit from the revival of the company, and therefore unless it is found that the sacrifices envisaged for the workmen, which certainly form a separate class, are onerous and burdensome so as to be manifestly unjust and arbitrary, we will not set aside the legislation,solely on the ground that some or marginal sacrifice is to be made by the workers. We would also reject the argument that to find out whether there was a violation of Article 14 of the Constitution of India or whether the right to life under Article 21 Constitution of India was infringed, we must word by word examine the waterfall mechanism envisaged under the Companies Act, 2013, where the company is wound up in terms of grounds (a) to (e) of Section 271 of the Companies Act, 2013; and the rights of the workmen when the insolvent company is sought to be revived, rehabilitated or wound up under the Code. The grounds and situations in the context of the objective and purpose of the two enactments are entirely different.
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- Ahmadi, J. (as he then was) speaking for himself and Punchhi, J., endorsed the recommendations in the following words-The time is ripe for taking stock of the working of the various Tribunals set up in the country after the insertion of Articles 323-A and 323-B in the Constitution. After the incorporation of these two articles, Acts have been enacted where-under tribunals have been constituted for dispensation of justice. Sufficient time has passed, and experience gained in these last few years for taking stock of the situation with a view to finding out if they have served the purpose and objectives for which they were constituted. Complaints have been heard in regard to the functioning of other tribunals as well and it is time that a body like the Law Commission of India has a comprehensive look-in with a view to suggesting measures for their improved functioning. That body can also suggest changes in the different statutes and evolve a model on the basis whereof tribunals may be constituted or reconstituted with a view to ensuring greater independence. An intensive and extensive study needs to be undertaken by the Law Commission in regard to the Constitution of tribunals under various statutes with a view to ensuring their independence so that the public confidence in such tribunals may increase and the quality of their performance may improve.
Before parting with the case, it is necessary to express our anguish over the ineffectiveness of the alternative mechanism devised for judicial review. The judicial review and remedy are the fundamental rights of the citizens. The dispensation of justice by the tribunal is much to be desired.
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- The elements of tort of negligence consist in – (a) duty of care; (b) duty is owed to the plaintiff; (c) the duty has been carelessly breached. Negligence does not entail liability unless the exacts a duty in the given circumstances to observe care. Duty is an obligation recognised by law to avoid conduct fraught with unreasonable risk of damage to others. The question whether duty exists in a particular situation involves determination of law. Hence, three ingredients are necessary for the existence of a duty of care: (i) foreseeability of the damage, (ii) proximity of relationship between the parties; and (iii) whether it is “just, fair and reasonable” that the law should impose a duty of care. In Caparo Industries Plc. v. Dickman, 1990 2AC 605, the court held that breach of duty is concerned with the standard of care that ought to have been adopted in the circumstances and whether the defendant’s conduct fell below that standard i.e., whether he was careless.
The court while quoting Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, 1997 stated that as a tort, negligence consists of legal duty to take care and breach of that duty. Duty determines whether the type of loss suffered by the plaintiff in the particular way in which to occurred can ever be actionable. The division of negligence into duty, breach and consequent damage is convenient for the purpose of exposition but it can be confusing because the issues will often overlap. The process of determining a breach of duty involves three steps: First, it is necessary to ascertain the qualities of the reasonable person, given the qualities attributed to him, would have taken in the circumstances. The factors that are permissible to take into account in this regard are prescribed by law, but the amount of care that the reasonable person would have taken is a question of fact. Thirdly, it must be determined whether the defendant took less care than the reasonable person would have taken.
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- Article 14 of the Constitution stipulates that the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India. Article 15(1) states that the State should not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 15(4) stipulates that nothing in Article 15 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Article 16 deals with equality of opportunity in matters of public employment. Clause (1) of Article 16 guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Clause (2) stipulates that no citizen shall be discriminated in or be ineligible for any employment or office under the State on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Clause (4) of the provision states that nothing in Article 16 shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, is not adequately represented in the services under the State. The purpose of the equal opportunity principle in Article 16(1) and the reservation provision in Article 16(4) has emerged as a focal point of the jurisprudence on reservations in this Court. A discussion of the journey of the competing models of equality that the Court has espoused and their evolution over the course of the years is necessary to understand the constitutional vision on equality.
The impugned constitutional amendments by which Article 16 (4-A) and 16 (4-B) have been inserted, flow from Article 16 (4). They do not alter the structure of Article 16 (4). They retain the controlling factors or the compelling reasons which enables the State to provide for reservation keeping in mind the overall efficiency of the state administration under article 335. Sub-categorization within a class is a constitutional requirement to secure substantive equality in the event that there is a distinction between two sections of a class; Sub-classification must not lead to the exclusion of one of the categories in the class. A model that provides sufficient opportunities to all categories of the class must be adopted; and Sub-classification among a class must be on a reasonable basis.
Justice Bela Trivedi opined, in dissent, that presidential list of scheduled castes notified under Article 341 cannot be altered by the States. Any change to this list can only be made by a law enacted by Parliament. Sub-classification, according to her would amount to tampering with the Presidential List and undermine the object Article 341, which aims to eliminate political influence in the SC-ST List. Further, she emphasised the importance of adhering to the rule of plain and literal interpretation. She mentions that any preferential treatment for a sub-class within the presidential list would deprive other classes within the same category of their benefits. In the absence of executive or legislative power, state lack the competence to sub-classify castes and the benefit reserved for all SCs. Allowing states to do so would constitute a colourable exercise of power, which is impermissible under law. Justice Trivedi concluded by affirming that affirmative action by States must remain within constitutional boundaries and held that the law laid down in E.V. Chinnaiah case was correct and should be upheld.
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