Virtual Court Problem

VIRTUAL COURT PROBLEM
SUBMITTED BY:
ENROLLMENT NO:
UNIVERSITY
YEAR
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PROBLEM 1
Appellant got an insurance policy of his private car and kept on paying premiums
regularly. Regional office of united bank of India is a tenant of appellant and many of the
employees are well known to the appellant. Once an employee took an appellant’s car for
his personal use. Car met with an accident during the course of insurance policy appellant
demanded for the compensation from the opposition this was dismissed on the plea that the
car was given on the rent for use. That an appeal was filed in state commission against the
order of district form. Give your argument in favor or against.
That an appeal was filed in state commission against the order of district form. I am in favor of
Appellant got an insurance policy of his private car and kept on paying premiums regularly
We are very much concerned with the position of the Judges, who are dealing with this matter in
the Motor Accident Claim Tribunals. They are not able to make up their mind on this question of
liability, which is one of the causes for delay in disposal of the claim petitions. In spite of several
judgments of the Supreme Court on the point an element of doubt and confusion prevails.
Therefore, we thought it proper to hear all the concerned and try to reconcile and pass an order
giving guidance to them so that the claim petitions could be decided expeditiously. We are
conscious that even in the Supreme Court itself, now the questions are referred to the larger
bench. As could be seen from the points of reference, the question that is referred to the larger
Bench is, whether the apex Court by virtue of the power conferred on it under Article 142 of the
Constitution can pass an order directing the insurance company to pay the money to the third
party and recover from the owner? It cannot be disputed that the power to be exercised
under Article 142 is only by the Apex Court and not by other Courts. Therefore, neither this
Court nor Tribunals exercising the power under Article 142 and directing the insurance company
to pay the third party and then recover from the insured would arise. We have to decide the rights
of the parties strictly in terms of the statutory provisions. If a particular provision is not
interpreted by the Supreme Court, we are at liberty to make our interpretation. It is in this
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context, this appeal was taken up for consideration. We heard the learned counsel appearing for
the parties. We also requested the learned counsel who are experts in the field to assist us as
"amicus curiae".
The point that arise for our consideration is as under:
POINT FOR CONSIDERATION When the insurance company establishes its case under
Section 149 (2) by proving one of the grounds mentioned in sub-section (i)(a)(b) of Section 149
(2) and is entitled to avoid its liability to the insured,
(a) is it entitled to avoid its liability to the third party also? Or
(b) whether the insurance company has to pay the amount awarded to the third party and recover
it from the insured?
The liability of the insurance companies is circumscribed by the statutory provision under
Chapter XI and XII of the Motor Vehicles Act, 1988, (for short hereinafter referred to as "the
Act"). It cannot be read in isolation. Insurance companies are owned by the Government. They
are commercial ventures. Therefore, no liability can be fastened on them de hors the liability
fastened under the statutory provision. On the basis of the social philosophy liability cannot be
fastened. When once the insurance company establishes the ground mentioned in Section 149 of
the MV Act, not only the liability of the insurance company to the insured ceases and they are
also under no obligation to pay the third parties in respect of the risk covered under the policy.
This concept of "pay and recover" cannot be made applicable to the cases where there is no
liability of the insurance company by virtue of Section 149 (2) of the Act. He submitted that this
concept of "pay and recover" is conferred under Section 149 (4) and (5) of the MV Act. But the
Parliament consciously did not apply the said principle to cases under Section 149 (1) r/w.149
(2) of the Act. Therefore, intention is manifest. The Courts cannot, under the guise of
harmonious interpretation, read into the provision which is specifically excluded by the
Parliament. If done it amounts to re-writing the law. It is not permissible. In several judgments of
the Apex Court, it has been held that if there is no liability of the insurer to the insured, by virtue
of their establishing the ground under Section 149 (2) of the MV Act, the insurance company
cannot be made to pay to the third party and recover it from the insured. He submitted that those
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directions issued by the Apex Court do not lay down any principle of law. Those are the cases
where by virtue of the power conferred under Section 142 of the Constitution, in order to do
complete justice between the parties, the Apex Court has issued such direction, which power
conspicuously is not vested in the High Court and the Tribunal under the statute. Therefore,
when the statute expressly states that once the liability could be avoided, under Section 149 (2)
(b) of MV Act, the Courts have no power to direct the insurance company to pay and recover.
Sections 149 (1) and 149(2) have to be read along with Section 149(7) of the MV Act. If so read,
the intention of the legislature would be amply clear. Under Section 149(2) of the Act, the
insurance company will get the right to defend on the grounds mentioned under Section
149(2) of the Act and there is no indication in the said provision that the right to defend and
avoid the liability is only against the insured and not against the third party. The Parliament by
introducing Section 149 (7) in the MV Act, has made its intention clear. Therefore, in the light of
the express provision contained in Section 149(7) of the Act, once the insurance company
establishes the grounds enumerated under Section 149(2), their liability to indemnify the insured
and pay the third party does not exist. Therefore, this concept of directing payment to the third
party and permitting the insurance company to recover the said amount from the insured is not
applicable to the cases falling under Sections 149 (1), 149 (2) of the Act.
Per contra, learned counsel appearing for the claimant Sri Sripad Shastry contended that the
liability to pay the third party is a statutory liability. It is a social obligation. Recognizing these
two aspects Section 146 is introduced under the Motor Vehicles Act. The same cannot ply
without policy coverage. That provision is not made to the benefit of the insurance company. It is
made for the benefit of the innocent third parties who are the victims in the accident. Even if
there is a violation of terms of the contract as set out in Section 149(2) of the Act and there is no
liability on the part of the insurance company to indemnify the insured but their liability to pay
the third party is not extinguished. In view of Section 149(2) of the Act as "any person" refers
to Section 149(7) and Section 149(1) refers to the "insured", the insured is beneficiary under the
decree and he is not personally liable to pay. The insurance company pays the said amount. It is
in that context, if Section 149 (1) is read with other benevolent provision of Section 149(5) and
other provisions, the conclusion is inescapable that once there is a valid insurance policy and the
vehicle involved in the accident is covered under the Motor Vehicles Act, and even if the owner
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commits breach of terms and conditions of the policy, the liability of the insurance company to
pay the third party, cannot be avoided.
He also pointed out the term 'any person' used in Section 149 (7) of the Act does not mean every
person including the claimant. Since Section 149 (7) refers to Section 149 (1) it is easy to
understand words 'every person' as insured by the policy occurring in Section 149(1). It is
necessary to harmonize Section 149 (1) and 149 (7) more so, in view of non-abstante clause
appearing in later Section of 149(1). The insurer is relegated to the position of the judgment
debtor even though there is no privity of contract between the claimants and insurer. It is by
reason of statutory coverage the insurer is liable. The liability is carved out of a statute and hence
exclusive as well as absolute. It is apparent from Section 168 which obligates the insurer-the first
person, to pay and in the event of non- insurance to direct the owner and driver to pay. The
liability is strict and absolute. The terms of liability to any person appearing in Section 149 (7) is
not referable to the claimants, but to the insured alone. In the scheme of Chapters XI and XII, the
third party is the sole beneficiary, just as the insurer is the sole beneficiary of the compulsory
insurance. Insured is basically liable as a tort feasor. When the insurer is statutorily liable to pay
compensation by reason of Sections 149 (1) and 147 (5), it must be construed as an embargo on
insurer to avoid payment of compensation except on the grounds enumerated in Section 149 (2)
and by reason of Section 149 (5), the insurer is mandated to pay the compensation even in excess
of its liability, with liberty to recover the same from the insured. Hence Sections 149 (1), 149 (4),
147(5) and Section 168 must be read harmoniously to conclude that the insurer shall pay this
sum awarded and in the event of the award being in excess of liability to recover the same from
the insured. The distinguishing feature of 1988 Act is that the liability of the insurer and insured
is co-extensive and co-terminus vide Section 149 (2)(a). Even Section 147(1)(b) mandates that
the authorised insurer shall insure the persons or class of persons specified in the policy to the
extent specified in Sub Section (2). Section 147 (2) mandates that the insurer shall pay the
amount of liability incurred under the award. Thus it is clear that compulsory insurance is not to
be treated as a private benevolence of the parliament, but a duty is cast on the insurer by the
parliament to pay the compensation awarded to the third party notwithstanding that it can avoid
or has avoided or that it can cancel or has cancelled the policy.
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In the light of the aforesaid argument, it is necessary for us to look into the interpretation placed
by the Apex Court on the relevant provisions of law both under 1939 Act as well as under 1988
Act.
Section 96 of the Motor Vehicles Act, 1939 imposes duty on the insurer to satisfy judgments
against persons insured in respect of third party risks. Sub-section 2 thereof provides exception
to the liability of the insurer. Sub-sec. 2(b) of sec. 96 provides that the insurer is not liable to
satisfy the judgments against the persons insured if there has been a breach of a specified
condition of the policy. One of the conditions of the policy specified under clause (ii) is that the
vehicle should not be driven by any person who is not duly licensed, or by any person who has
been disqualified from holding or obtaining driving licence during the period of disqualification.
It is not in dispute that the certificate of insurance concerned in this case contains this condition.
If, therefore, there is a breach of this condition, the insurer will not be liable to indemnify the
owner.
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PROBLEM 2
Respondent wife was highly educated woman who was married to plaintiff husband who
was working in abroad as per Hindu customs. After marriage they both went abroad.
There in abroad her husband used to torture her for the dowry and he also accused her to
have illicit relation with one of his friend who was staying there. Due to constant torture
wife returned back to India. After 2 years of coming back, her husband filed a suit for a
divorce against her. Respondent wife accused her husband for the abandonment in her
defense. Give your argument in favor or against.
My argument is in favor of respondent wife.
it is evident that there was demand of dowry in shape of cash and car by accused Vijay Kumar,
husband of deceased and his other family members and the deceased was given beatings for the
said demand.
It is observed that this is a case of dowry in this case was otherwise than under normal

circumstances and within 7 years of marriage. It is apparent that deceased was subjected to
cruelty and harassment by accused persons soon before her death. Thus the major ingredients
of Section 498A/304B/34 IPC are duly fulfilled against accused her husband.
Hindu Marriage Act, 1955
It would not be proper in such cases to require the additional ground of irretrievable breakdown
of marriage because of the said misconduct of the spouse in committing acts of adultery or
cruelty. To do so would have the cfiect of making the present provision much more stringent. It
may be that such misconduct of a spouse may also result in a large number of cases in
irretrievable breakdown of marriage. The question ' to “be considered, however, is whether in
the event of such misconduct, it should be necessary to ask for further proof of irretrievable
breakdown of the marriage. Our answer to this question is in the negative. The various grounds
of divorce provided in the Hindu Marriage Act should, therefore, be retained. It may be that
there will sometimes be overlapping where the specific ground of divorce (e.g- cruelty') has also
led to the parties living apart and breakdown of the marriage. However, that in itself is not a
conclusive consideration for abolishing the present grounds of divorce.
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Accordingly, we recommend that in section 23( I } (a). after the word and figure "section 5", the
words, figure and letter "and except in cases where the petition is presented under section 13C"
should be inserted. The added matter will, of cdurse, appear before the closing rectangular
bracket in section 23(1) (a).
We shall first examine the present grounds for divorce under the Hindu Marriage Act. We shall
then deal with the theory of irretrievable breakdown and consider the merits and demerits of the
theory. in case the theory of irretrievable breakdown is to be adopted, the question would fall to
be considered whether the other grounds of divorce should be retained, or whether merely the
broad and exclusive category of irretrievable breakdown should be substituted as absorbing the
grounds already provided in the law. We shall deal with that question in due course.
If the printsiplc of irretrievable breakdown is adopted. the next question will be how exactly to
incorporate it into the Act.
We will also examine the question whether the introduction of such :1 ground should be coupled
with any safeguards.
Besides this, under section 13(2) the wife may also "present a petition for dissolution of her
marriage on the ground that the marriage was solernnized before the commencement of the Act
and that, the husband had married again before 'such commencement, or that the husband had,
since the so1emniza- tion of the marriage, been guilty of rape, sodomy or bestiality, or that there
has been passed a decree or order for maintenance against the husband notwithstanding that the
wife was living apart and that since the passing of the decree or order, cohabitation between the
parties has not been resumed for one year or upwards, or that her marriage (whether
consummated or not) was solemnized before she attained the age of fifteen years and she had
repudiated the marriage after attaining that age (15 years), but before attaining the age of
eighteen years.
It may be noted that although traces of the concept of breakdown of marriage could be found in
the special provision for dissolution of marriage by decree of divorce at the instance of either
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party under section 13:,' IA) summarized above} it is an essential condition of the application of
that sub--sectio11 that the proceedings for divorce must have been preceded by either a decree
for judicial separation or a decree for restitution of conjugal rights, A decree for judicial sepa-
ration, in its turn, could not have been passed? unless circumstances which prove what may be
called marital offence or marital disability were established. In this sense, a petition for divorce
under section 13l[lA) indirectly brhigs in a consideration of fault or disability.
Similarly, a decree for the restitution of conjugal rights could not have been passed unless it has
been proved that the respondent had "without reasonable excuse" withdrawn from the society of
the other. Thus, a petition under section l3(lA], in so far as it is based on a prior decree of
restitution, also in- volves consideration of fault.
Section 13B provides for divorce by mutual consent by bringing in the concept of divorce dc
hers any fault of a party. All that is necessary in such cases is that there should be a petition for
dissolution of. marriage to be presented together by both the parties to a marriage, on the ground
that they have been ' Para 2.3, supra.
A wife may also present a petition for the dissolution of her marriage by a decree of divorce on
the ground,
in the case of any marriage solemnised before the commencement of this Act, that the husband
had married again before such commencement or that any other wife of the husband married
before such commencement was alive at the time of the solemnization of the marriage of the
petitioner: Provided that in either case the other wife is alive at the time of the presentation of the
petition; or
that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956),
or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or
under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a
decree or order, as the case may be, has been passed against the husband awarding maintenance
to the wife notwithstanding that she was living apart and that since the passing of such decree or
order, cohabitation between the parties has not been resumed for one year or upwards; or
Provision for reconciliation.
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Provision for this purpose already exists in the Hindu Marriage Act.' While dealing with cases of
irretrievable breakdown of marriage, it may be stated that current thinking is that compulsory
counselling is likely to prove a waste both of time and of resources as most couples will not, in
any event, be reconciled and that resources should be concentrated on those parties who 1 Para
-6. 3, supra.
Section 23(2), Hindu Marriage Act, 1955.
show a positive intemst in their marriage.' It has been suggested that" counselling is unrealistic
where the spouses do not show a positive interest in the future of their marriage and do not seek
counselling voluntarily. It may, however, be appropriate to mention that section 23(2) of the Act
imposes a duty on the court to make every endeavour to bring about reconciliation "where it is
possible so to do consistently with the nature and circumstances of the case".
Where conciliation within the terms of section 23(2) of the Act is possible, it would sometimes
be desirable to utilise the services not only of qualified persons but also of members of the
family, in effecting reconciliation. In this context we mav refer to Order 32A of the Code of
Civil Procedure. 1908, in-- serted in 1976.3 The Order applies to suits and proceedings re- lating
to matters concerning the family. Rule 3 of the Order imposes a duty to make efforts for
settlement in such suits and proceedings.
Rule 4 of the Order reads as follows -.
"In every suit or proceedings to which this Order applies. it shall be open to the court to secure
the services of such person "t'preferabl3.' a woman where available), whether related to the
parties or not. including a person professionally engaged in promoting the welfare of the family
as the Court may think fit. for the purpose of assisting the Court in discharging the functions
imposed by rule 3 of this Order.
Refusal of decree in five-year separation cases on grounds of grave hardship to respondent.
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PROBLEM 3
Accused persons A, B, C, D took their weapon in moon night and attacked the deceased
who was cutting his rice crops. They attack the deceased due to which his skull broke into
six different pieces and he died and a murder case was registered against the accused
persons. The accused gave the reason whatever they have done for safety of their property.
Give the argument in favor or against the accused person.
I am against the accused person gave the reason whatever they have done for safety of their
property.
Section 300 (3) of The Indian Penal Code has been a very interesting provision of the Indian
Criminal Law. It is very fascinating to see the development of the reasoning behind application
of this section in murder cases. Especially after Virsa Singh's case in 1958, the law was more or
less cleared on this point and it became a landmark judgment, which was followed in many
subsequent similar cases. This paper is an attempt to find out the condition before Virsa Singh's
case, to analyse it and to look at the condition and the approach of courts applying the ratio of
this case in future judgments. Attention has also been paid to the intent requirement by this
section.
Section 300 (3): A General Overview

The section provides that, culpable homicide is murder if the act by which death is caused:
Is done with an intention of causing bodily injury to any person and the bodily injury intended to
be inflicted is sufficient in the ordinary course of nature to cause death. For cases to fall within
Clause (3), it is not necessary that the offender intended to cause death, so long as the death
ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary
course of nature.
Situation before 1958

Situation before 1958 and attitude of courts in application of s. 300(3) was somewhat uncertain.
In the case of Chamru Budhwa Vs. State of Madhya Pradesh after an exchange of abuse accused
dealt a blow on the head of the deceased with the lathi. After that 2nd appellant dealt another
blow to the deceased, the injury inflicted proved fatal and both the Courts below came to the
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conclusion that the Appellant was guilty of the offence under Section 302 IPC. As per the doctor
the injury inflicted on the head was sufficient in the ordinary course of nature to cause death. The
Supreme Court was of the view that it appears that the crime was committed without
premeditation in a sudden fight in the heat of passion upon a sudden quarrel thus bringing the
case within Exception 4 thereto with the result that the offence committed was culpable homicide
not amounting to murder. In another case of Willie (William) Slaney vs. The State of Madhya
Pradesh , William was on terms of intimacy with sister of deceased. The brother did not like their
intimacy. On the evening of the day of the occurrence, there was a heated exchange of words.
The accused gave one blow on his head with a hockey stick with the result that his skull was
fractured. He died in the hospital ten days later. The doctor thought that injury was only likely to
cause death. In the opinion of court, the appellant could hardly be presumed to have had this
special knowledge that the blow was sufficient to cause death at the time he struck the blow. So
the offence falls under the second part of section 304 of IPC. While it has been made clear in
Virsa Singh's case that such knowledge is not necessary.
The approach of the court in the above mentioned cases seems, that more reliance was placed on
the nature and seriousness of injury rather than the intention to cause such injury. It is very
evident when judge in Slaney's case says that, All blows on the head do not necessarily cause
death. The approach has been to find out whether the ingredient namely the intention to cause the
particular injury is present or not and it is held that circumstances like sudden quarrel in a fight
or when the deceased intervenes in such a fight, would create a doubt about the ingredient of
intention as it cannot definitely be said in such circumstances that the accused aimed the blow at
a particular part of the body.
It could be concluded safely, that earlier the courts first searched the intention to kill and in its
absence the act can be murder only if that injury would be sufficient in the ordinary course of
nature to cause death.
Arguments advanced: It was argued with much circumlocution that the facts set out above do
not disclose an offence of murder because the prosecution has not proved that there was an
intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of
nature.
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Reasoning and decision: The court said that actual reading of this section infers that it is not
enough to prove that the injury found to be present is sufficient to cause death in ordinary course
of nature but it must be in addition shown that the injury found to be present was the same injury
that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course
of nature is a matter of inference or deduction from the proved facts about the nature of the
injury and has nothing to do with the question of intention.
The court gave a four-point test which prosecution must observe and prove in order tobring the
case under this section:
i) First, it must establish, quite objectively, that a bodily injury is present;
ii) Secondly, the nature of the injury must be proved; These are purely objective investigations.
iii) Thirdly, it must be proved that there was an intention to inflict that particular bodily injury,
that is to say, that it was not accidental or unintentional, or that some other kind of injury was
intended. Once these three elements are proved to be present, the enquiry proceeds further and,
iv) Fourthly, it must be proved that the injury of the type just described made up of the three
elements set out above is sufficient to cause death in the ordinary course of nature. This part of
the enquiry is purely objective and inferential and has nothing to do with the intention of the
offender.
Once these four elements are established by the prosecution (and, of course, the burden is on the
prosecution throughout) the offence is murder under s. 300, thirdly.
This four point test is applied in many such subsequent cases . It is mainly after this judgment
that clear guidelines were provided for the application of this section. These observations of
Vivian Bose, J. have become locus classicus.
The intent requirement
The ingredient 'intention' in that Clause is very important and that gives a clue in a given case
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whether offence involved is murder or not . Supreme Court also discussed the intent element
required for this section in great detail. The argument that prosecution must prove an intention to
inflict only that kind of injury that was sufficient to cause death in the ordinary course of nature
was found to be fallacious by the court. It was argued that the intention that the section requires
must be related, not only to the bodily injury inflicted, but also to the clause, "and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.? Court
totally disagreed with such an argument calling it to be a fallacious argument. According to the
rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction
of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to
the intention of causing death, the offence would be murder. Illustration (c) appended to Section
300 clearly brings out this point.
The court read the clause 3 of section 300 of IPC disjunctively and separating intention
being read as linked to the second part in the following way:
If there is an intention to inflict an injury that is sufficient to cause death in the ordinary course
of nature, then the intention is to kill and in that event, the "thirdly" would be unnecessary
because the act would fall under the first part of the section, namely - "If the act by which the
death is caused is done with the intention of causing death."
In our opinion, the two clauses are disjunctive and separate. The first is subjective to the offender
: "If it is done with the intention of causing bodily injury to any person." It must, of course, first
be found that bodily injury was caused and the nature of the injury must be established. These
are purely objective facts and leave no room for inference or deduction and to that extent the
enquiry is objective; but when it comes to the question of intention, that is subjective to the
offender and it must be proved that he had an intention to cause the bodily injury that is found to
be present.
Once that is found, the enquiry shifts to the next clause - "and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause death." The first part of this is
descriptive of the earlier part of the section.
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So the crux is that what needs to be proved is not that the accused had an intention to inflict the
injury that was sufficient to cause death in ordinary course of nature but that he had an intention
to cause the same bodily injury that is found to be present on the body of the deceased. Then it is
the later part of the enquiry which is objective in nature to find out that whether the injury was
sufficient in the ordinary course of nature to cause death or not. Thus, intention is only linked up
and is restricted to the causing of the bodily injury and not to the knowledge or intention of
causing such bodily injury that is sufficient to cause bodily injury that is sufficient to cause death
in ordinary course of nature. What needs to be proved is that the accused had an intention to
cause the same bodily injury found to be present on the person of deceased which was later
found to be sufficient to cause death. Such a principle is based on broad lines of common sense
because if intention is considered to be of causing an injury which is sufficient to cause death;
then any person could always plead that he never had an intention to cause such a injury and it
would have been very difficult to prove him wrong.
That is why the court observed that:

Once these four elements are established by the prosecution the offence is murder under s. 300,
thirdly. It does not matter that there was no intention to cause death. It does not matter that there
was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary
course of nature. It does not even matter that there is no knowledge that an act of that kind will
be likely to cause death. Once the intention to cause the bodily injury actually found to be
proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of
purely objective inference, the injury is sufficient in the ordinary course of nature to cause death.
No one has a licence to run around inflicting injuries that are sufficient to cause death in the
ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of
that kind, they must face the consequences; and they can only escape if it can be shown, or
reasonably deduced that the injury was accidental or otherwise unintentional.
It is not a correct approach that intent required is linked up with the seriousness of the injury and
that is not what the section requires. The two matters are quite separate an distinct. The question
is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he
intended to inflict the injury that is proved to be present. If he can show that he did not, or if the
totality of the circumstances justify such an inference, then, of course, the intent that the section
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requires is not proved. But if there is nothing beyond the injury and the fact that the appellant
inflicted it, the only possible inference is that he intended to inflict it. Whether he know of its
seriousness, or intended serious consequences, is neither here nor there. The question, so far as
the intention is concerned, is not whether he intended to kill, or to inflict and injury of particular
degree of seriousness, but where he intended or inflict the injury in the question; and once the
existence of the injury is proved the intention to cause it will be presumed unless the evidence or
the circumstances warrant an opposite conclusion. But whether the intention is there or not is one
of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how
serious, is a totally separate and distant question and has nothing to do with the question whether
the prisoner intended to inflict the injury in question.
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the
court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of
making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its
conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the
sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a
rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative
evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and
could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is
not to be rejected.
(vii) Even if it is a brief statement, it is not to be discarded.
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(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make
the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce
the deceased to make a false statement and if it is coherent and consistent, there shall be no legal
impediment to make it the basis of conviction, even if there is no corroboration.
In the scheme of the penal Code, ''culpable homicide' is genus and ''murder' its species. All
''murder' is ''culpable homicide' but not vice-versa. Speaking generally, ''culpable homicide not
amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this
generic offence, the Code practically recognises three degrees of culpable homicide. The first is,
what may be called ''culpable homicide of the first degree'. This is the greatest form of culpable
homicide, which is defined in Section 300 as ''murder'. The second may be termed as ''culpable
homicide of the second degree'. This is punishable under the first part of Section 304. Then, there
is ''culpable homicide of the third degree'. This is the lowest type of culpable homicide and the
punishment provided for it is, also, the lowest among the punishments provided for the three
grades. Culpable homicide of this degree is punishable under the second part of Section 304."
Section 300 of the Code states what kind of acts, when done with the intention of causing death
or bodily injury as the offender knows to be likely to cause death or causing bodily injury to any
person, which is sufficient in the ordinary course of nature to cause death or the person causing
injury knows that it is so imminently dangerous that it must in all probability cause death, would
amount to ''murder'. It is also ''murder' when such an act is committed, without any excuse for
incurring the risk of causing death or such bodily injury. The Section also prescribes the
exceptions to ''culpable homicide amounting to murder'. The explanations spell out the elements
which need to be satisfied for application of such exceptions, like an act done in the heat of
passion and without pre- mediation. Where the offender whilst being deprived of the power of
self- control by grave and sudden provocation causes the death of the person who has caused the
provocation or causes the death of any other person by mistake or accident, provided such
provocation was not at the behest of the offender himself, ''culpable homicide would not amount
to murder'. This exception itself has three limitations. All these are questions of facts and would
have to be determined in the facts and circumstances of a given case.
17 | P a g e
Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what
punishment a person would be liable to be awarded, if he commits either of the offences. An
analysis of these two Sections must be done having regard to what is common to the offences
and what is special to each one of them. The offence of culpable homicide is thus an offence
which may or may not be murder. If it is murder, then it is culpable homicide amounting to
murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with
cases not covered by Section 302 and it divides the offence into two distinct classes, that is (a)
those in which the death is intentionally caused; and (b) those in which the death is caused
unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory
and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment
is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first
clause of this section includes only those cases in which offence is really ''murder', but mitigated
by the presence of circumstances recognized in the exceptions to section 300 of the Code
Thus, where the act committed is done with the clear intention to kill the other person, it will be
a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the
Code but where the act is done on grave and sudden provocation which is not sought or
voluntarily provoked by the offender himself, the offence would fall under the exceptions
to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool
which would help in determining such matters is the extent of brutality or cruelty with which
such an offence is committed.
n important corollary to this discussion is the marked distinction between the provisions of
Section 304 Part I and Part II of the Code. Linguistic distinction between the two Parts of Section
304 is evident from the very language of this Section. There are two apparent distinctions, one in
relation to the punishment while other is founded on the intention of causing that act, without
any intention but with the knowledge that the act is likely to cause death. It is neither advisable
nor possible to state any straight-jacket formula that would be universally applicable to all cases
for such determination. Every case essentially must be decided on its own merits. The Court has
to perform the very delicate function of applying the provisions of the Code to the facts of the
case with a clear demarcation as to under what category of cases, the case at hand falls and
accordingly punish the accused.
18 | P a g e
A question arises whether the appellant was guilty under Part I of Section 304 or Part II. If the
accused commits an act while exceeding the right of private defence by which the death is
caused either with the intention of causing death or with the intention of causing such bodily
injury as was likely to cause death then he would be guilty under Part I. On the other hand if
before the application of any of the Exceptions of Section 300 it is found that he was guilty of
murder within the meaning of clause "4thly", then no question of such intention arises and only
the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it
was likely to cause death but without any intention to cause it or without any intention to cause
such bodily injuries as was likely to cause death. There does not seem to be any escape from the
position, therefore, that the appellant could be convicted only under Part II of Section 304 and
not Part I."
As we have already discussed, classification of an offence into either Part of Section 304 is
primarily a matter of fact. This would have to be decided with reference to the nature of the
offence, intention of the offender, weapon used, the place and nature of the injuries, existence of
pre-meditated mind, the persons participating in the commission of the crime and to some extent
the motive for commission of the crime. The evidence led by the parties with reference to all
these circumstances greatly helps the court in coming to a final conclusion as to under which
penal provision of the Code the accused is liable to be punished. This can also be decided from
another point of view, i.e., by applying the ''principle of exclusion'. This principle could be
applied while taking recourse to a two-stage process of determination. Firstly, the Court may
record a preliminary finding if the accused had committed an offence punishable under the
substantive provisions of Section 302 of the Code, that is, ''culpable homicide amounting to
murder'. Then secondly, it may proceed to examine if the case fell in any of the exceptions
detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by
the court is correct on facts and sustainable in law. We are stating such a proposition to indicate
that such a determination would better serve the ends of criminal justice delivery. This is more so
because presumption of innocence and right to fair trial are the essence of our criminal
jurisprudence and are accepted as rights of the accused.
The question now requires to determine is as to what is the nature of offence that the accused has
committed. The evidence produced against the accused does not show that the accused had any
19 | P a g e
motive to cause death of the deceased or have intended to cause such bodily injuries which were
sufficient in the ordinary course of nature to cause the death of the deceased. Evidence on record
also does not establish that the injuries caused on the body of the deceased must in all probability
cause his death or likely to cause his death. On the spur of the moment, during the heat of
exchange of words accused caused injuries on the body of the deceased which caused his death.
Therefore, the ingredients of the murder as defined in Section 300, Indian Penal Code, have not
been established against the accused. In our opinion, the accused was guilty of culpable homicide
not amounting to murder Under Section 304, Indian Penal Code, and considering the fact that the
accused had no intention to either cause the death of the deceased or cause such bodily injury as
is likely to cause death of the deceased, it would be sufficient to impose on accused a sentence of
seven years rigorous imprisonment and to impose on him a fine of Rs. 5,000/- and in default of
payment of fine, a further imprisonment of six months."
"All "murder" is "culpable homicide" but not vice versa. Speaking generally, "culpable
homicide" sans "special characteristics of murder is culpable homicide not amounting to
murder". For the purpose of fixing punishment, proportionate to the gravity of the generic
offence, IPC practically recognizes three degrees of culpable homicide. The first is, what may be
called, "culpable homicide of the first degree". This is the gravest form of culpable homicide,
which is defined in Section 300 as "murder". The second may be termed as "culpable homicide
of the second degree". This is punishable under the first part of Section 304. Then, there is
"culpable homicide of the third degree". This is the lowest type 10. The academic of culpable
homicide and the punishment provided for it is also the lowest among the punishments provided
for the three grades. Culpable homicide of this degree is punishable under the second part
of Section 304. Distinction between "murder" and "culpable homicide not amounting to murder"
has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and
meaning of the terms used by the legislature in these sections, allow themselves to be drawn into
minute abstractions. The safest way of approach to the interpretation and application of these
provisions seems to be to keep in focus the keywords used in the various clauses of Sections
299 and 300. The following comparative table will be helpful in appreciating the points of
distinction between the two offences: 1. Clause (b) of Section 299 corresponds with Clauses (2)
and (3) of Section 300. The distinguishing feature of the mens rea requisite under Clause (2) is
20 | P a g e
the knowledge possessed by the offender regarding the particular victim being in such a peculiar
condition or state of health that the internal harm caused to him is likely to be fatal,
notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to
cause death of a person in normal health or condition. It is noteworthy that the "intention to
cause death" is not an essential requirement of Clause (2). Only the intention of causing the
bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the
death of the particular victim is sufficient to bring the killing within the ambit of this clause. 2.
Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender.
Instances of cases falling under Clause (2) of Section 300 can be where the assailant causes death
by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver, or
enlarged spleen or diseased heart and such blow is likely to cause death of that particular person
as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If
the assailant had no such knowledge about the disease or special frailty of the victim, nor an
intention to cause death or bodily injury sufficient in the ordinary course of nature to cause
death, the offence will not be murder, even if the injury which caused the death, was
intentionally given. In Clause (3) of Section 300, instead of the words "likely to cause death"
occurring in the corresponding Clause (b) of Section 299, the words "sufficient in the ordinary
course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to
cause death and a bodily injury sufficient in the ordinary course of nature to cause death.
The distinction is fine but real and if overlooked, may result in miscarriage of justice. The
difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of degree of
probability of death resulting from the intended bodily injury. To put it more broadly, it is the
degree of probability of death which determines whether a culpable homicide is of the gravest,
medium or the lowest degree. The word "likely" in Clause (b) of Section 299 conveys the sense
of probability as distinguished from a mere possibility. The words "bodily injury ... sufficient in
the ordinary course of nature to cause death" mean that death will be the "most probable" result
of the injury, having regard to the ordinary course of nature."
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PROBLEM 4
The deceased B was the debtor of accused A. one day A Invited B at his home and
demanded for money. B asked to pay money afterwards. In the fate anger A kicked to
times on his belly which resulted B felt down and died. Murder case was registered against
A. ‘A’ argued he was not aware that due to this act B would die. Give your argument in
favor or against A.
In the fate anger A kicked to times on his belly which resulted B felt down and died.
My argument in against ‘A’
Having completed narration of the facts and noticed the precise contentions raised before us in
the present appeal, we may now refer to the law on the subject. We are of the opinion that
elucidative discussion on the legal principles governing the distinction
between Sections 300, 302 of the Code on the one hand and Section 304, Part I and Part II of the
Code on the other, would be necessary to precisely answer the questions raised.
Sections 299 and 300 of the Code deal with the definition of ‘culpable homicide’ and ‘murder’,
respectively. In terms of Section 299, ‘culpable homicide’ is described as an act of causing death
(i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is
likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is
clear from a reading of this provision, the former part of it, emphasises on the expression
‘intention’ while the latter upon ‘knowledge’. Both these are positive mental attitudes, however,
of different degrees. The mental element in ‘culpable homicide’, that is, the mental attitude
towards the consequences of conduct is one of intention and knowledge. Once an offence is
caused in any of the three stated manners noted-above, it would be ‘culpable
homicide’. Section 300, however, deals with ‘murder’ although there is no clear definition of
‘murder’ in Section 300 of the Code. As has been repeatedly held by this Court, ‘culpable
homicide’ is the genus and ‘murder’ is its species and all ‘murders’ are ‘culpable homicides’
but all ‘culpable homicides’ are not ‘murders’.
In the scheme of the penal Code, ‘culpable homicide’ is genus and ‘murder’ its species. All
‘murder’ is ‘culpable homicide’ but not vice-versa. Speaking generally, ‘culpable homicide not
amounting to murder’. For the purpose of fixing punishment, proportionate to the gravity of this
22 | P a g e
generic offence, the Code practically recognises three degrees of culpable homicide. The first is,
what may be called ‘culpable homicide of the first degree’. This is the greatest form of culpable
homicide, which is defined in Section 300 as ‘murder’. The second may be termed as ‘culpable
homicide of the second degree’. This is punishable under the first part of Section
Then, there is ‘culpable homicide of the third degree’. This is the lowest type of culpable
homicide and the punishment provided for it is, also, the lowest among the punishments provided
for the three grades. Culpable homicide of this degree is punishable under the second part
of Section 304.
Section 300 of the Code proceeds with reference to Section 299 of the Code. ‘Culpable
homicide’ may or may not amount to ‘murder’, in terms of Section 300 of the Code. When a
‘culpable homicide is murder’, the punitive consequences shall follow in terms
of Section 302 of the Code while in other cases, that is, where an offence is ‘culpable homicide
not amounting to murder’, punishment would be dealt with under Section 304 of the Code.
Various judgments of this Court have dealt with the cases which fall in various classes of firstly,
secondly, thirdly and fourthly, respectively, stated under Section 300 of the Code. It would not
be necessary for us to deal with that aspect of the case in any further detail. Of course, the
principles that have been stated in various judgments like Abdul Waheed Khan @ Waheed and
Others v. State of A.P. [(2002) 7 SCC 175], Virsa Singh v. State of Punjab [AIR 1958 SC 465]
and Rajwant and Anr. v. State of Kerala [AIR 1966 SC 1874] are the broad guidelines and not
cast-iron imperatives. These are the cases which would provide precepts for the courts to
exercise their judicial discretion while considering the cases to determine as to which particular
clause of Section 300 of the Code they fall in.
Having noticed the distinction between ‘murder’ and ‘culpable homicide not amounting
to murder’, now we are required to explain the distinction between the application
of Section 302 of the Code on the one hand and Section 304 of the Code on the other.
In Ajit Singh v. State of Punjab [(2011) 9 SCC 462], the Court held that in order to hold whether
an offence would fall under Section 302 or Section 304 Part I of the Code, the courts have to be
extremely cautious in examining whether the same falls under Section 300 of the Code which
states whether a culpable homicide is murder, or would it fall under its five exceptions which
23 | P a g e
lay down when culpable homicide is not murder. In other words, Section 300 states both, what
is murder and what is not. First finds place in Section 300 in its four stated categories, while the
second finds detailed mention in the stated five exceptions to Section 300. The legislature in its
wisdom, thus, covered the entire gamut of culpable homicide that ‘amounting to murder’ as well
as that ‘not amounting to murder’ in a composite manner in Section 300 of the
Code. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what
punishment a person would be liable to be awarded, if he commits either of the offences.
An analysis of these two Sections must be done having regard to what is common to the offences
and what is special to each one of them. The offence of culpable homicide is thus an offence
which may or may not be murder. If it is murder, then it is culpable homicide amounting to
murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with
cases not covered by Section 302 and it divides the offence into two distinct classes, that is (a)
those in which the death is intentionally caused; and (b) those in which the death is caused
unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory
and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment
is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first
clause of this section includes only those cases in which offence is really ‘murder’, but mitigated
by the presence of circumstances recognized in the exceptions to section 300 of the Code, the
second clause deals only with the cases in which the accused has no intention of injuring anyone
in particular
Thus, where the act committed is done with the clear intention to kill the other person, it will be
a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the
Code but where the act is done on grave and sudden provocation which is not sought or
voluntarily provoked by the offender himself, the offence would fall under the exceptions
to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool
which would help in determining such matters is the extent of brutality or cruelty with which
such an offence is committed.
An important corollary to this discussion is the marked distinction between the provisions of
Section 304 Part I and Part II of the Code. Linguistic distinction between the two Parts of Section
304 is evident from the very language of this Section. There are two apparent distinctions, one in
24 | P a g e
relation to the punishment while other is founded on the intention of causing that act, without
any intention but with the knowledge that the act is likely to cause death. It is neither advisable
nor possible to state any straight-jacket formula that would be universally applicable to all cases
for such determination. Every case essentially must be decided on its own merits. The Court has
to perform the very delicate function of applying the provisions of the Code to the facts of the
case with a clear demarcation as to under what category of cases, the case at hand falls and
accordingly punish the accused.
question arises whether the appellant was guilty under Part I of Section 304 or Part II. If the
accused commits an act while exceeding the right of private defence by which the death is
caused either with the intention of causing death or with the intention of causing such bodily
injury as was likely to cause death then he would be guilty under Part I. On the other hand if
before the application of any of the Exceptions of Section 300 it is found that he was guilty of
murder within the meaning of clause “4thly”, then no question of such intention arises and only
the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it
was likely to cause death but without any intention to cause it or without any intention to cause
such bodily injuries as was likely to cause death. There does not seem to be any escape from the
position, therefore, that the appellant could be convicted only under Part II of Section 304 and
not Part I.”
In view of the above discussion, we partially accept this appeal and alter the offence that the
appellant has been held guilty of, from that under Section 302 of the Code to the one under
Section 304 Part I of the Code. Having held that the accused is guilty of the offence under
Section 304 Part I, we award a sentence of ten years’ rigorous imprisonment and a fine of Rs.
10,000/-, in default to undergo simple imprisonment for one month. The judgment under appeal
is modified in the above terms. The appeal is disposed of accordingly.
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MOOT COURT
CRIMINAL CASE 1
1. PROBLEM
The appellant has approached this Hon’ble high court of Delhi under section 378 of the
code of criminal procedure 1973.
A. Respondent had the knowledge of the consequences of the act
B. The act of respondent was likely to cause death
C. The death of the deceased was caused by the act of respondents
D. The respondents failed to maintain standard of monitoring patient undergoing anaesthesia
2. NAME OF THE COURT

High court of Delhi
3. IN THE FAVOR OF
Doctor K.K. Sinha and other team members are liable for criminal negligence of murder u/s
304.
4. FACT OF CASE
DOCTOR K.K. SINHA AND OTHER TEAM MEMBERS ARE LIABLE FOR CRIMINAL
NEGLIGENCE OF MURDER U/S 304. Section 304 provides punishment for culpable
homicide not amounting to murder, wherein whoever commits culpable homicide not
amounting to murder shall be punished with imprisonment for a term which may extend to
ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to
cause death.
26 | P a g e
5. ARGUMENT
DOCTOR K.K. SINHA AND OTHER TEAM MEMBERS ARE LIABLE FOR
CRIMINAL NEGLIGENCE OF MURDER U/S 304.
For the perusal of the court the relevant part of the important provisions are reproduced here,
Section- 299 provides explanation for the offence of Culpable homicide, wherein stated-
"Whoever causes death by doing an act with the knowledge that he is likely by such act to
cause death, commits the offence of culpable homicide."
Section 304 of Indian Penal Code, 1860 provides punishment for culpable homicide not
amounting to murder, wherein stated- "whoever commits culpable homicide not amounting
to murder shall be punished with imprisonment for a term which may extend to ten years, or
with fine, or with both, if the act is done with the knowledge that it is likely to cause death."
A. RESPONDENT HAD THE KNOWLEDGE OF THE CONSEQUENCES OF THE ACT

The term 'knowledge' under section 299, IPC postulates the existence of positive mental
attitude and this mental condition is the special men’s rea necessary for the offence,
which contemplates the likelihood of the death of the person.
B. THE ACT OF RESPONDENT WAS LIKELY TO CAUSE DEATH
The word 'likely' as mentioned in Clause (c) of Section 299, conveys the sense of
'probable' as distinguished from a mere possibility. This knowledge of his act can be
attributed to him and he can be made liable u/s 304, Part II as the level of performance of
the equipment were not in optimal level of which he was aware, even then they
proceeded with the operation.
C. THE DEATH OF THE DECEASED WAS CAUSED BY THE ACT OF
RESPONDENTS
The investigation on the patient before the commencement of the operation, propounded
that the operation procedure followed by Sandok Hospital was extremely deficient for
which reasons the second operation became inevitable. Thus, Sandok Hospital be held
liable for culpable homicide as they have the knowledge that the act is likely to cause
death of the patient for the reasons of using defective equipments.
27 | P a g e
D. THE RESPONDENTS FAILED TO MAINTAIN STANDARD OF MONITORING
PATIENT UNDERGOING ANAESTHESIA
The Association of Anaesthetists of Great Britain and Ireland recommended the standards
for monitoring during the anaesthesia procedure wherein provide guidance on the
minimum standards for physiological monitoring of any patient undergoing anaesthesia
under the care of an anaesthetist. There lies responsibility of the anaesthetist to check all
the equipment before using followed by any specific checking procedures.
6. PRAYER
Wherefore in the light of facts presented, issues raised, arguments advanced and authorities
cited, the Counsels on behalf of the Appellant humbly pray before this Hon’ble Court that it
may be pleased to adjudge and declare that:
1. The Respondents are liable u/s 304. Or pass any other order that the court may deem fit in
the light of equity, justice and good conscience and for this Act of kindness of Your
Lordships the Appellant shall as duty bound ever pray.
7. CASE CITED
DOCTOR K.K. SINHA AND OTHER TEAM MEMBERS ARE LIABLE FOR
CRIMINAL NEGLIGENCE OF MURDER U/S 304.
1. For the perusal of the court the relevant part of the important provisions are reproduced
here, Section- 299 provides explanation for the offence of Culpable homicide, wherein
stated- "Whoever causes death by doing an act with the knowledge that he is likely by
such act to cause death, commits the offence of culpable homicide."
2. Section 304 of Indian Penal Code, 1860 provides punishment for culpable homicide not
amounting to murder, wherein stated- "whoever commits culpable homicide not
amounting to murder shall be punished with imprisonment for a term which may extend
to ten years, or with fine, or with both, if the act is done with the knowledge that it is
likely to cause death."
28 | P a g e
RESPONDENT HAD THE KNOWLEDGE OF THE CONSEQUENCES OF THE
ACT
The term ‘knowledge’ under section 299, IPC postulates the existence of positive mental
attitude and this mental condition is the special mens rea necessary for the offence, which
contemplates the likelihood of the death of the person.
The essence of knowledge lies in the awareness on part of the person concerned with the act,
indicating his state of mind.
It is pertinent to note that the patient, in the instant matter died because of the reckless act of
management of Sandok Hospital, as the anaesthetist found beforehand that the machines used
for the monitoring of oxygen supply and the retention level of anaesthesia were not working
properly, yet they proceeded with the operation. This knowledge on part of the doctors that
the equipments used while operation was defective constitutes part of culpable homicide
fulfilling the ingredients within. Thereby, criminal liability could be imposed u/s 304, Part II
on Dr. Sinha and the management of the said hospital as they possess the knowledge of the
consequence of such act, the proximate cause of which was the operation conducted in the
first instance with the defective equipments.
The Apex Court in the recent case of Alister Anthony Pareira v. State of Maharashtra, while
explaining the said section held that pertaining to the levying of punishment u/s 304 Part II,
the prosecution need to prove the death of person caused by the act of the accused having
knowledge that such act was likely to cause death. Further, in another case of State Tr. P.S.
Lodhi Colony New Delhi v. Sanjeev Nanda, Supreme Court reiterated the above reasoning as
to the knowledge of the act likely to cause death of the person in question. In the instant case,
Dr. Sinha and management has evident knowledge of the circumstances that may cause the
death of the patient in reasonable proximity as they conducted the operation with the
equipments which were defective.
The Court went on to draw the distinction between knowledge and intention in the case of
Basdev v. The State of Pepsu, stating that in many cases the intention and knowledge merge
into each other and mean the same thing more or less, whereby intention can be presumed
from knowledge. Though demarcation between the two is thin but not difficult to perceive
29 | P a g e
that they connote different things. In case of Riyazuddin v. State of NCT of Delhi, the Delhi
High Court relying on the above distinction, convicted the doctor u/s 304, Part II. The court
held that though Riyazuddin may have no intention to commit the death of the deceased but
the knowledge that the act was likely to cause death was clearly attributable, thereby
convicted for offence punishable under Section 304 IPC.
A medical practitioner should be alert to the hazards and risks in any professional task he
undertakes to the extent that other ordinarily competent members of the profession would be
alert.8 A doctor becomes liable where his conduct fell below that of the standards of a
reasonably competent practitioner in his field. Here the practice of moving ahead with the
operation with a machine which is not working properly is a practice below accepted
practice.
A doctor who is not qualified to give advice in a certain field gives advice in such a field
becomes liable. In the instant case the Respondent even after not having
knowledge of anaesthetics ignored the advice of anaesthetics and went ahead with the
operation. In the case of Sarwat Ali Khan v. Prof. R. Gogi and Ors, in an eye hospital persons
lost their vision in the operated eye. An enquiry revealed that in the Operation Theatre two
autoclaves were not working properly. This equipment is absolutely necessary to carry out
sterilization of instruments, cotton, pads, linen, etc., and the damage occurred because of its
absence in working condition. The doctors were held liable.
In the case of Surendra Chauhan v. State of M.P, doctor was held liable when the patient died
due to non-application of anaesthesia. Following the dictum discussed above, it can be said
that for an act to be punishable under Sec- 304, Part II, the person has to have the knowledge
of the consequences of the act that it is likely to cause the death. It is evident in the present
case that, Dr. Sinha acted in manner wherein the awareness of his act as to the knowledge of
the act likely to causing death of the patient forms an imminent part for such conviction.
THE ACT OF RESPONDENT WAS LIKELY TO CAUSE DEATH
The word 'likely' as mentioned in Clause (c) of Section 299, conveys the sense of 'probable'
as distinguished from a mere possibility.13 The probable cause was the level of performance
of the equipment not in optimal condition resulting in complications in furtherance death of
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the patient as the equipments used for monitoring the oxygen supply and retention level of
anaesthesia formulates an integral part of the operation procedure whose failure increases the
risk of such resultant condition
The monitors are electronic devices which measure the heart rate, blood pressure, blood
oxygen level and the amount of anaesthetic gases, oxygen and carbon dioxide in breath.
These measurements inform anaesthetists of any change in the general condition of the
patient and accordingly the changes are made. Anaesthetic gases cannot be administered
without oxygen and it is needed to be monitored accurately. Oxygen is one of the most
important gases for anaesthetic procedures. The American Society of Anaesthetists published
a document which encompasses duty upon the anaesthetic and his nursing/ technical staff to
keep the anaesthesia equipment in order and make necessary checks to ensure the reliable
working of the entire set up.
Further, a well-known orthopedic surgeon can be said to have the knowledge of the
importance of the equipments and consequences of its not working properly. This knowledge
of his act can be attributed to him and he can be made liable u/s 304, Part II as the level of
performance of the equipments were not in optimal level of which he was aware, even then
they proceeded with the operation procedure stating the situation to be urgent. The defence of
this urgency could not be taken as the condition of the patient before the operation was
normal as stated he regained consciousness with normal pulse rate. This elucidates the
proposition that option of referring the patient to another hospital with working equipments
was available but instead they proceeded with the operation increasing risk of danger to the
life of the patient for which this act amounted to culpable homicide.
In the case of T. Padmanabhan v. Hindustan Maternity Home18, the State Commission held
the doctors including the anaesthetic liable on account of the hospital undertaking major
surgery without having the basic facilities to perform such a surgery, the operation being
elective and not urgent and not giving proper medical attention after the complications
developed for delaying in deciding to transfer the patient to bigger hospital with necessary
facilities. In consideration of the similar facts, reliance could be placed while adjudging the
liability on the doctors and anaesthetist of the Sandok Hospital as mentioned that the surgery
was conducted without the basic facilities even when the operation was not urgent, but only
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elective. Thus, admeasuring the degree of the subsequent conduct and the consequence
therewith, criminal liability to be imposed on basis of their knowledgeable act likely to cause
the death of the patient.
Interviewing
1.Conversation between lawyer and client
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THE DEATH OF THE DECEASED WAS CAUSED BY THE ACT OF RESPONDENTS
The condition of the patient before conducting the operation was normal, but soon after they
proceeded with the defective equipments, complications arose as to the patient did not regain the
consciousness for next 24 hours, for which reasons he was then referred to Rajiv Gandhi
hospital. The investigation on the patient before the commencement of the operation,
propounded that the operation procedure followed by Sandok Hospital was extremely deficient
for which reasons the second operation became inevitable with lesser chance of success rate.
In the case of Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr.19 , wherein
the facts were similar of the instant case, the patient came after two days of breaking of femur.
He died because he developed respiration complication because of improper anaesthesia. Also, in
the instant case the deceased developed complication and did not regained consciousness and he
died eventually. Thus, it can be said that the death was caused by the act of Respondent. In the
case of Jacob Mathew v. State of Punjab20 Hon'ble court while discussing above mentioned case
observed that the doctor was not liable criminally only because it was not an issue before the
court.
Further, Section 304 Part- II IPC requires knowledge on the part of a person that the only
probable consequence of his act would be ‘culpable homicide’. The court in the case of Tukaram
Dyaneshwar Patil v. State of Maharashtra21 relying on the facts and circumstances of the case
which have been proved by the prosecution in bringing home the guilt of the accused under
Section 304 Part-II IPC undoubtedly show a despicable aggravated offence warranting
punishment proportionate to the crime. The court in the strict interpretation, observed that the
sentence of eleven months awarded by the High Court for the said conviction was too meagre
and not adequate, as would result in travesty of justice. Even no amount of compensation could
relieve the family of victim from the constant agony, thereby held that imposition of five years of
rigorous imprisonment on each respondent for the conviction under Section 304 PartII IPC
would meet the ends of justice.
Thereby relying on the said judgment and the contentions therewith, it is argued that Dr. Sinha
and the management of the Sandok Hospital be held liable for culpable homicide as they have
the knowledge that the act is likely to cause death of the patient for the reasons of using defective
equipments resultantly complicating the condition of the patient, further making inevitable the
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second operation and consequently death. For the reasons stated herein it is contended that
criminal imposition of liability u/s 304 would meet the ends of justice as no compensation could
relieve the constant agony of the family members.
THE RESPONDENTS FAILED TO MAINTAIN STANDARD OF MONITORING
PATIENT UNDERGOING ANAESTHESIA
The Association of Anaesthetists of Great Britain and Ireland22 recommended the standards for
monitoring during the anaesthesia procedure wherein provide guidance on the minimum
standards for physiological monitoring of any patient undergoing anaesthesia under the care of
an anaesthetist. It provides that the anaesthetist must be present for the patient throughout the
conduct of the process ensuring the minimum monitoring devices attached before induction of
anaesthesia. It embodies obligation to ensure that all the anaesthetic equipment, including
relevant monitoring equipment has been checked before use. The guidelines on standards of
clinical monitoring have been provided by various Anaesthesiologist societies.
Further, it is the responsibility of the anaesthetist to check all the equipment before using
followed by any specific checking procedures.24 The recommendation also pondered upon the
requisite use of an oxygen analyser to be essential during anaesthesia. Even emphasis has been
laid to take care in order to configure the display setup, with attention to both the size and
arrangement of onscreen data with the regular updating of the displayed values.
It is pertinent to note that the standard of care and monitoring needs to be maintained during the
transfer of patients who are anaesthetised or sedated equivalent to that applied in the operating
theatre, and personnel with the adequate knowledge and experience to accompany the patient.
In the light of the above guidelines and recommendations it is evident that the hospital staff and
management ought to maintain the standard of monitoring the psychological condition of the
patient undergoing the anaesthetic procedure while the conduct of operation. Though in the
instant matter, the hospital staff miserably failed to maintain the requisite standard as established
by legislations of various societies acting in manner which likely to cause death of the patient,
thereby to be held criminally liable for such act.
CRIMINAL CASE 2
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1. PROBLEM
Issue that is presented via this appeal before the Hon’ble High Court for discussion and
adjudication is as follows;
Whether the conviction under Sec.361 and Sec.366 by the Sessions Court should be set
aside?
Whether the ingredients of Sec.361 are met with to constitute the offence under this section
by the appellant?
Whether the ingredients of Sec.366 are met with to constitute the offence under this section
by the appellant?

3. IN THE FAVOR OF
Hasan jardari Versus. State of Maharashtra
4. FACT OF CASE
1. Hasan Jardari is a Muslim, 22-year-old Commerce Graduate from taluka Baramati.

Falguni, is a Hindu, pursuing her junior college studies. They are neighbors.
2. They developed a relationship of love and affection and wanted to marry each other. The
only impediment to this is was Falguni‟s father who was against inter-religious relationship
and marriage.
3. They would meet clandestinely and Hasan used to assure Falguni of a married life in the
city once he got a job there. He also promised to convince her father, Raghunath, for their
marriage.
4. He, one day, tried to persuade her father but Raghunath did not accede to the persuasion.
Hasan got a job in Pune and disappointed by the refusal, he shifts to Pune for the same.
5. Two months later, he receives a call from Falguni wherein she asks him to meet her at the
outskirts of Baramati.
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6. They meet and she shares her fear that her parents may force her to marry someone else.
They then proceed to a nearby bus stand and leave for Pune. While boarding, Pandurang,
Raghunath’s friend, sees them.
7. Based on the information given by Pandurang, Raghunath filed a complaint against Hasan.
8. Two days later, Hasan and Falguni are caught living together in a small room. The police
arrested Hasan and booked him under Sec. 361 and Sec. 366 of the Indian Penal Code, 1860.
9. Further they obtained the birth certificate of Falguni from the Gram Panchayat which
indicated that she was seventeen years old.
10. The trial court convicted the appellant of both the charges. Aggrieved by the same the
appellant has preferred this appeal.
5. ARGUMENT
Issue that is presented via this appeal before the Hon’ble High Court for discussion and
adjudication is as follows;
Issue I
Whether the conviction under Sec.361 and Sec.366 by the Sessions Court should be set
aside?
Whether the ingredients of Sec.361 are met with to constitute the offence under this
section by the appellant?
Whether the order of conviction under Sec.361 and Sec.366 by the Sessions Court
should be set aside?
The answer to the above question is an impregnable positive.
Taking‟ or „enticing‟ a minor „out of the keeping of the lawful guardian‟ constitute the
ingredients of this section. However, it is most humbly submitted that, these ingredients have
not been met with as the appellant has not induced the minor to leave the keeping of her
lawful guardian. She has done so out of her own accord. Furthermore, merely accompanying
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a minor does not amount to kidnapping. Also, the ambit of the words „keeping of the lawful
guardian‟ is to be construed in such a way wherein the control of the guardian over the minor
must be compatible with the independence of the same. Therefore, the appellant is not liable
for the offence under Section 361 of the Indian Penal Code, 1860.
The existence of intent in the mind of the accused to force or compel the woman to indulge in
the activities mentioned in the section is of the utmost importance to constitute an offence
under the same. In the matter at hand, this intent in the mind of the appellant is absent from
the very outset. Furthermore, as stated above, the accused has not committed the offence of
kidnapping, which is another essential ingredient that has not been met with. Therefore, the
appellant is not liable for the offence under Section 366 of the Indian Penal Code, 1860.
6. PRAYER
Wherefore, in the light of the factual matrix, issues presented for adjudication, contentions
raised and authorities relied upon, it is most humbly prayed, that this Hon’ble Court may be
pleased to;
1. Allow the appeal.
2. Set aside the conviction by the Sessions Court and acquit the appellant of all charges.
And/or pass any other order that this Court may deem fit in the interest of Justice, Equity and
Good Conscience, for which the Appellant, shall in duty bound, forever pray
7. CASE CITED
The Hon’ble High Court enjoys the right to preside over this matter by virtue of Section 374
(2) in Chapter XXIX of Appeals, of The Code of Criminal Procedure, 1973
Section 374 – Appeals from convictions.
(1) ----
(2) Any person convicted on a trial by a Sessions Judge or an Additional Sessions Judge or on a
trial held by any other Court in which a sentence of imprisonment for more than seven years 1
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[has been passed against him or against any other person convicted at the same trial]; may appeal
to the High Court.
Whether the ingredients of Sec.361 are met with to constitute the offence under this section by
the appellant?
Aim and Objective of Sec. 361
The object of this section is to protect children of tender age from being abducted or seduced for
improper purposes, as well as for the protection of the rights of parents and guardians having the
lawful charge or custody of minors or insane persons.2 The mischief intended to be punished by
this section partly consists of violation or infringement of the guardians‟ rights to keep their
wards under their care and custody; but the more important object of this provision is
undoubtedly to afford security and protection to the ward themselves
There are four essentials that must be met with
a. Taking or enticing away a minor or a person of unsound mind.
b. Such minor or person of unsound mind, if male, must be under 16 years of age; and if female,
under 18 years of age.
c. The taking or enticing must be out of the keeping of the lawful guardian of such minor or
person of unsound mind.
d. Such taking or enticing must be without the consent of the guardian
The gravamen of this offence lies in the taking or enticing of a minor under the ages specified
under this section, out of the keeping of the lawful guardian without the consent of such
guardian. The words “take or entice any minor....out of the keeping of the lawful guardian of
such minor” are significant. The use of the word “keeping” connotes the idea of charge,
protection, maintenance and control; the guardians‟ charge and control appears to be compatible
with the independence of action and movement in the minor, the guardian’s charge and control
of the minor being available whenever necessity arises. Thus this relation between the minor and
the guardian certainly does not dissolve so long as the minor, can at will take advantage of it and
place herself within the sphere of its operation.
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Therefore, it is most humbly submitted that, „keeping of the lawful guardian‟ must be strictly
interpreted, so as to not only fulfil the purpose and objective of this provision but also, safeguard
the independence of the one that is brought within the scope of the same. The factors governing
the aforementioned independence however, are multifarious as well as subjective. They take face
of what is acceptable and necessary at that time, in that contemporary society.
Ambit of ‘taking or enticing ... out of the keeping of the lawful guardian’ under Section 361
The law assumes that in the Indian context the true interest of the minor and that of the
parent/guardian concur. That is the basic plank of parental (guardians‟) authority and right. It
must however be considered that, there is a distinction between “taking” and allowing a minor to
accompany a person.5 The two expressions are not synonymous and it is pertinent to note that in
no conceivable circumstance can the two be regarded as meaning the same thing for the purpose
of Section 361 of the Indian Penal Code, 1860.
Where a minor girl alleged to have been taken by the accused person, left her father’s protection
knowing and having capacity to know the full import of what she was doing voluntarily joins the
accused person; in such a case the accused cannot be said to have taken her away from the
keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is
some kind of inducement held out by the accused person or an active participation by him in the
formation of the intention of the minor to leave the house of the guardian.
It is most humbly submitted that, in the matter at hand, the appellant and Falguni overtime
developed a relationship of love and affection and wanted to marry each other. The appellant
used to assure her of a married life in the city after he gets a job there. Pursuant to this, he
promised Falguni that he shall convince her father to allow them to get married to each other.
Following up on the same, he attempted to persuade her father; however, her father absolutely
refused to accede to that persuasion. Disappointed by the refusal, when the appellant received a
job opportunity, he availed it and shifted to Pune for the same. The act of the appellant of
moving to Pune after a blatant refusal of permission to marry by the father of Falguni, is evident
of the conclusion of those assurances made, of a married life in the cities. Moreover, that lack of
indication of any sort of communication between Hasan and Falguni in the interim period of two
months before she called him, further fortifies the end of his assurances that were made in the
formative stage of their relationship.
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Furthermore, it is abundantly clear that the appellant was in no way directly or actively involved
in the formation of the intention of the minor to leave the house of the guardian and meet him at
the outskirts of Baramati. The minor had called the appellant herself, and asked him to meet her
there. No other information was divulged into and therefore the absence of the appellant‟s
intention to influence her to leave her lawful guardian is evident. After Falguni shared her fear of
the possibility of her parents forcing her to marry someone else, they were spotted boarding a
bus
Section 90 of the Indian Penal Code, 1860 speaks of Consent. This section does not define
„consent‟ but describes what is not „consent‟. Consent is an act of reason, accompanied with
deliberation, the mind weighing, as in a balance, the good and evil on each side. Consent means
an active will in the mind of a person to permit the doing of the act complained of, and
knowledge of what is to be done, or of the nature of the act that is being done, is essential to
consent to an act.
The Supreme Court in S. Varadrajan v. State of Madras10 had come to the positive conclusion
that the minor had gone out of the keeping of her guardian voluntarily and the appellant had no
role whatsoever in such minor walking out of the keeping of the guardian, similar of which is the
case herein. A person who allows such a minor, who is already out of the keeping of her
guardian, to accompany him commits no offence under Section 361.
The word “take” implies want of wish and absence of desire of the person taken. Thus, where the
prosecutrix leaves her father’s house out of her free will and the appellant does not go to her
house, does not persuade her and bring her from there no kidnapping takes place and the accused
cannot be convicted. There is a distinction between taking and allowing a minor to accompany a
person. In the matter at hand, whether the appellant has taken the minor out of the keeping of the
lawful guardian cannot be ascertained as, the events that transpired between the appellant and the
minor after she shared her fear are vague and unclear.
In Debprosad v. King it was held that after the minor left the custody of the guardian and joined
the accused, it was not clear whether the allurement to run first came from the side of the
accused or the minor. In such a case, it is submitted that there is no kidnapping, for taking and
allowing a minor to accompany are not the same thing. This principle was further reiterated and
upheld by the Apex Court in S.Varadrajan v. State of Madras . In the matter at hand, it is
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absolutely unclear as to, from whom the allurement first came, hence, this ambiguity does not
prove the guilt of the appellant beyond reasonable doubt
As stated above, it is most humbly submitted that, the minor had gone out of the custody of her
father and later met with the appellant. Up until the point of meeting, there is no indication of an
intention, on part of the appellant to lure her out of the keeping of the lawful guardian. The minor
herself, had called the appellant at the outskirts of Baramati to meet her. Further, in the present
case, prior to the minor leaving her leaving the guardian, there was no blandishment on part of
the appellant.
It is most humbly submitted that, the appellant could not have anticipated the conduct of the
minor leaving the keeping of the lawful guardian when they met. Also, boarding a bus together
does not in any way indicate towards an act of active inducement on part of the appellant. Mere
accompaniment does not amount to an offence under this provision. The appellant was under no
legal obligation to return the minor to her lawful guardian.
If evidence to establish a passive form of inducement or a direct action is lacking, then it would
not be legitimate to infer that the appellant is guilty of taking her out of the keeping of the lawful
guardian. Merely because after she left the house of her lawful guardian, joined the accused and
the accused helped her in her design not to return to her guardian’s house by taking her along
with him place to place; no doubt the part played for by the accused could be regarded as
facilitating the fulfilment of the intention of the girl, it however, falls short of an inducement to
the minor to slip out of the keeping of her lawful guardian, and therefore is, not tantamount to
„taking‟.14 It is most humbly submitted that, as stated earlier, the assurance of a married life in
the city ended with the refusal of the father to grant permission, the appellant leaving for Pune
after the same and the lack of an indication of any communication between the appellant and the
minor for the next two months.
The words „taking‟ and „enticing‟ evidently have two different connotations. But neither of the
expressions attracts the case when the girl of her own accord comes out of the custody of her
guardian. Hence it is most humbly submitted that, the requisites to constitute an offence under
this section have not been met with and therefore, the appellant must not be held liable for the
same.
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RELATED LAW
Whether the ingredients of Sec.366 are met with to constitute the offence under this section by
the appellant?
Scope of Section 366
Section 366 is an aggravated form of the offence under Section 363 which states the punishment
for the offence under Section 361. If a person kidnaps a minor girl with the intention that she
may be compelled, or knowing it to be likely that she will be compelled, to marry any person
against her will, the appellant may be punished under this section. One of the basic conditions for
the applicability of this section is that the person charged must have committed an offence of
kidnapping as defined in section 363.16 It is therefore most humbly submitted and as is held in
Isree Pandey, the offence under this section is merely an aggravated form of the offence under
Section 363 and the same person cannot be convicted on the same facts under both the sections.
Furthermore, as stated in the former half of the submission, the appellant has not in any way
committed the offence of kidnapping. The minor met the appellant at the outskirts of Baramati
out of her own free will. The necessary ingredient of enticement on part of the appellant was also
not met with since his assurances must be deemed to have been concluded when he moved to
Pune which was further substantiated with the lack of an indication of any communication
between the appellant and the girl. Furthermore, the ambiguity in determining the allurement to
board the bus on either of the person’s behalf does not prove the guilt of the appellant beyond
reasonable doubt to constitute the offence.
An intention to seduce subsequent to the elopement is an essential part of this offence. It has also
been held that this section did not apply to a case in which a minor girl at the time of kidnapping
from lawful guardian intended to co-habit of her own free will with the kidnapper. It applied
where she was compelled to marry a person against her will or where she was forced or seduced
to illicit intercourse
The essential ingredient of the offence under this section is that a person who kidnaps any girl
should do so for the intent specified in the section. To bring home an offence under this section
the prosecution must prove
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a. That the accused kidnapped or abducted the woman (as the case may be)
b. That the accused during the kidnapping or abduction had the intention or knew it likely that –
i. Such woman might or would be forced to marry a person against her will, or
ii. That she might or would be forced or seduced to illicit intercourse, or
iii. By means of criminal intimidation or otherwise by inducing a woman to go from any

place with intent that she may be or knowing that she will be forced or seduced to illicit
intercourse.
Scope of ‘With intent that she may be compelled... etc.’
The intention of the appellant is the basis and the foundation of an offence under this section.
The volition, the intention and the conduct of the appellant determine the offence; they can only
bear upon the intent with which the appellant kidnapped or abducted the woman, and the intent
of the appellant is the vital question for determination in each case.
Intention is a matter of inference from the circumstances of the case and the subsequent conduct
of the appellant after the kidnapping or abduction has taken place. Where the girl was not taken
by the appellant for the purpose of compelling her to marry him against her will but she wanted
to marry him at that stage, and neither the appellant seduced her to illicit intercourse, he could
not be held guilty under this section.19 This section makes use of the words “compelled, or
knowing it to be likely that she will be compelled”. If, therefore, a woman is not compelled to do
the acts specified in the section no offence is committed.
It is most humbly submitted that, in the matter at hand, the minor has not, at any stage, been
compelled or forced by the appellant to indulge into any of the activities that are imperative to
constitute an offence under this section.
The law is well-settled that if a minor girl below 18 out of her own accord abandons her lawful
guardian and joins the accused, who allows her to accompany him and commit sexual
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intercourse with her consensually, no offence u/s. 363 or 366, of the Indian Penal Code, 1860 is
made out
The Supreme Court decisions in S. Varadrajan v. State of Madras and T. D. Vadgama v. State of
Delhi23 were relied on by Delhi High Court in a case where the prosecutrix on the relevant time
was a girls of 17-½ years and she left the house of her parents voluntarily; met the accused in the
street and went with him to a different place. The Delhi High Court observed that the conviction
of the accused u/s. 366, of the Indian Penal Code, 1860 is not legally sustainable. Where a girl
under 18 years of age is taken away from the keeping of her father by the accused with the object
of marriage or seduction he is guilty of an offence under this section, notwithstanding the fact
that the girl accompanied the accused out of her own free will and not as a result of force or
misrepresentation. Mere kidnapping or abduction does not make out an offence under Section
366 of the Code.
It must further be proved that the accused kidnapped or abducted the woman for any of the
purposes mentioned in this section.26 Before a person can be convicted of an offence under the
first part of this section, the Court must be satisfied as a matter of fact upon evidence that the
accused when he kidnapped or abducted the woman (as the case may be) did so with intent to
compel her or knowing it to be likely that she would be compelled to marry against her will, that
is to say, in spite of her opposition and unless such an intent is proved, the accused is entitled to
be acquitted.
Therefore to conclude, it is most humbly submitted that, from the abovementioned averments it
is abundantly clear that the appellant, firstly, has not committed the offence u/s. 361 of the Indian
Penal Code, 1860 as he has not kidnapped the minor or taken or enticed her out of the keeping of
the lawful guardian and hence, subsequently, he cannot be held liable for the offence u/s. 366
and that there was no intent on the part of the appellant to force or compel the girl to indulge in
the activities listed therein to constitute the offence.
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CIVIL CASE 1
1. PROBLEM
The present batch of writ petitions raise common issues with similar prayers and are,
therefore, being decided vide this common judgment. However, for the sake of convenience,
only the facts of WP(C) No. 5062/2018 are being referred
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Delhi high court
3. IN THE FAVOR OF
Adarsh Raj Singh vs Bar Council Of India & Ors.
4. FACT OF CASE
The facts as emerge from the record that are necessary for deciding the present petition are
that the Petitioner took admission in the LL.B. course of Faculty of Law, University of Delhi
in June 2015 for the academic session 2015-2018. After completing his 5th semester
(penultimate semester), the Petitioner entered into the 6th semester (final semester) of his
course, classes for which semester commenced on 10.01.2018 and concluded on 03.05.2018.
It transpires that after the conclusion of the academic semester on 03.05.2018, the Faculty of
Law on 07.05.2018 released the first list of students, including the Petitioner, who were being
detained from giving their end-semester examinations for the Concerned Semester due to the
alleged shortage in their attendance. It is the Petitioner's case that, during the course of the
Concerned Semester, not only were a much fewer number of classes scheduled vis-a-vis the
minimum requirement prescribed under the Bar Council of India Rules, but even all the
scheduled classes were not held since a number of working days in February and March 2018
were lost on account of prolonged strikes that were called by the Delhi University Teachers
Association (hereinafter referred to as "DUTA"), as also certain on-campus events organized
by the college administration itself. It is the Petitioner's further case that, while these non-
working days have been included in the total number of working days for the Concerned
Semester, he has been wrongfully marked absent for the same. Thus, it is the Petitioner's
contention that he is a regular student and the alleged shortfall in his attendance is only due
to the illegal and arbitrary manner in which the college authorities have recorded his
attendance for the Concerned Semester.
However, despite making several representations to the affect that his attendance has been
calculated incorrectly as mentioned above, the Petitioner continued to remain detained from
giving his end-semester examinations. It is in these circumstances that the Petitioner has
approached this Court by filing the present petition.
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When the matter was listed before this Court on 10.05.2018, this Court had, while issuing
notice in the petition, by way of an interim arrangement permitted the Petitioner to appear in
the end-semester examinations for the Concerned Semester, which were to commence on
11.05.2018. However, it was made clear that the same was subject to the final outcome of the
present petition. Pursuant to this Court's order dated 10.05.2018, the Faculty of Law has
preferred a counter-affidavit as also a sur-rejoinder, whereas the Bar Council of India has
preferred to address arguments only on the basis of pleadings already on record.
Having set out the facts hereinabove, I may now refer to the rival contentions of the learned
counsels for the parties. Mr. Prashanto Sen, learned Senior Counsel, by placing reliance on
Rule 10 of the Rules of Legal Education, Bar Council of India Rules (hereinafter referred to
as the "BCI Rules"), contends that the Faculty of Law is under a statutory obligation to
conduct a minimum of 450 hours of class over a period of 15 weeks in a semester of a
regular unitary LL. B course. Out of these 450 hours of class, he submits, it is mandatory that
at least 360 hours are dedicated solely to in-class lectures, whereas the remaining 110 hours
must be dedicated to tutorials, moot court room exercises, seminars etc. By relying on the
Faculty of Law's specific averment in its sur-rejoinder, he contends that it is the Faculty of
Law's own admitted case that it has conducted only 230 class hours of class during the course
of the Concerned Semester, as a consequence of which it is not only in violation of the BCI
Rules, but has in effect also deprived its students of an adequate opportunity to meet the
requisite attendance criteria to take their end-semester examinations. In these circumstances,
he contends, the Faculty of Law's detention of its students on the ground of shortage of
attendance is unfair and completely illegal.
Taking Mr. Sen's aforementioned plea further, Mr. Mehmood Pracha, learned counsel for the
petitioners in the connected writ petition, contends that the Faculty of Law had in no way
informed its students in advance that it would, contrary to the mandate of the BCI Rules, only
be conducting about 230 hours of class during the Concerned Semester. Had the students
been informed of the same in advance, he submits, they would have accordingly planned
their leaves, medical or otherwise, to avoid a situation such as the present case where they are
falling short of the mandatory attendance criteria prescribed under Rule 12 of the BCI Rules.
Thus, Mr. Pracha's contention is that the Faculty of Law cannot detain its students from
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giving their end-semester examinations for the Concerned Semester, since the students had
no prior information regarding the Faculty of Law's intended non-compliance with the BCI
Rules and, therefore, had no way of ensuring that they met the requisite attendance criteria by
planning their leaves of absence in accordance with a determinate academic schedule.
Mr. Prashanto Sen further submits that the manner in which the Faculty of Law has
calculated its students' attendance for the Concerned Semester is in itself unfair and wholly
arbitrary. He contends that during the course of the Concerned Semester, there were at least
16 non-working days on which no classes were held by the Faculty of Law. Out of these 16
non-working days, he submits, 13 non-working days were on account of a strike called by
DUTA, pursuant where to a number of faculty members in the Faculty of Law had outrightly
refused to conduct classes and/or take attendance for the same. The other 3 non-working
days, Mr. Sen submits, were on account of some programmes/events that had been organized
by the Faculty of Law itself. He contends that, as a result of these 16 non-working days, the
students have missed a further 80 hours of class, which have been wrongfully included by the
Faculty of Law in the 230 hours of class it claims to have conducted during the Concerned
Semester. He further contends that, while the aforementioned 80 hours of class have been
included in the total number of classes considered for calculating the students' attendance, the
students have been wrongfully marked absent for the same. His contention thus is that the
Faculty of Law should have given the benefit of these 80 hours of class to its students, i.e., it
should have marked them as present for the same, since it is not a case where the students
had actually missed lectures that were conducted by the college but one in which the lectures
considered towards calculating the final attendance of the students had not been delivered in
the first place.
5. ARGUMENT
Having heard the learned counsels for the parties at great length, I find that the following
issues arise for my consideration in the present batch of writ petitions:
As per the Rules of Legal Education of the Bar Council of India Rules, what are the
minimum number of class hours required to be held by a centre of legal education during a
semester of a regular unitary LL.B. course? II. In the facts of the present case, did the Faculty
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of Law hold the requisite number of class hours prescribed under the Rules of Legal
Education of the Bar Council of India Rules? III. Can the Faculty of Law resort to Rule 12 of
the Rules of Legal Education of the Bar Council of India Rules and detain its students
studying in the LL.B. course on the ground of shortage of attendance, if it has itself not held
the mandatory number of class hours prescribed under the said Rules?
Before dealing with the rival contentions of the parties, it may be appropriate to refer to the
relevant provisions of the Rules of Legal Education of the Bar Council of India Rules, which
read as under:-
As regards the first issue, a bare perusal of Rule 10 of the BCI Rules reveals that a semester
of a regular unitary LL.B. course must have a total duration of at least 15 weeks. It further
stipulates that each such week of a semester must consist of a minimum of 30 hours of class,
out of which at least 24 hours are to be dedicated to delivering in-class lectures, whereas the
remaining hours of class are to be dedicated to tutorials, moot room exercises, seminars etc.
Therefore, as per Rule 10, over a period of at least 15 weeks a total of 450 hours {(15 weeks)
x (30 hours of class per week)} of class must be conducted by a recognized centre of legal
education during a semester of a regular unitary LL.B. course. Out of these 450 hours of
class, at least 360 hours {(15 weeks) x (24 lecture hours per week)} are to be allotted to
delivering in-class lectures, and the remaining 90 hours or less must be utilized for tutorials,
moot room exercises, seminars etc. Furthermore, as per Rule 2(xxiii), a regular course of
study must run for at least 5 hours a day and at least 30 hours a week. Therefore, on a
combined reading of Rule 10 and Rule 2(xxiii), a regular unitary LL.B. course must consist
of at least 450 hours of class conducted over a total of at least 90 working days {450 hours
divided by 5 hours of class per day} during a 15-week long semester.
Mr. Rupal has strenuously contended that Rule 10 of the BCI Rules only stipulates that 450
hours of class must be conducted for the LL.B. course as a whole and the said Rule does not
indicate how many classes are to be organized for an individual subject taught as a part of the
LL.B. course and, therefore, one must resort to Clause 18 of Schedule III of the BCI Rules to
calculate the total number of lectures to be held cumulatively for all the subjects taught
during a semester of the said course. He has further contended that Rule 10 read with Clause
18 of Schedule III stipulates that there must be four hours of in-class lectures and one hour of
49 | P a g e
tutorial/moot court/project work per week for one 4- credit subject paper. On this basis it has
been contended that for each student who studies five courses of 4 credits each in a 15-week
long semester of a regular unitary LL.B. course, the requirement as emerges from Clause 18
of Schedule III is that a total of 300 hours of in-class lectures and 75 hours of tutorials/moot
courts/project work should be held during a semester of the said Course, and not 450 hours of
class as prescribed in Rule 10 of the BCI Rules. However, in my considered opinion, such an
interpretation of the BCI Rules is wholly untenable, since it renders Rule 10 partially
nugatory. In interpreting Rule 10 and Clause 18 of Schedule III of the BCI Rules, I cannot
lose sight of the most cardinal rule of statutory interpretation that the statute must be
construed as a whole and the construction given to it must be such that the various provisions
of the statute, as far as possible, are harmoniously read in relation to each other.
Thus, while interpreting the various applicable provisions of the BCI Rules in light of the
stand taken by the Bar Council of India, I find that with respect to the organization of a
regular LL.B. course, it is Rule 10 which prescribes the minimum number of classes required
to be held by a recognized centre of legal education. On the other hand, Clause 18 of
Schedule III is relevant in a completely different context than Rule 10. I am of the considered
view that Clause 18 of Schedule III only stipulates the minimum number of class hours to be
conducted for a 4-credit subject paper, thereby mandating a certain minimum credit value to
class hour ratio for each of the various courses/subjects offered by a recognized centre of
legal education. A student of a regular LL.B. course studies a number of subjects offered by
its law college, each of which subjects has a certain credit value, which in turn is awarded to
the student on the successful completion of the concerned course/subject. It is the manner in
which a particular subject must be organized that is governed by Clause 18 of Schedule III,
which only lays down that a 4-credit subject paper offered by a recognized centre of legal
education must be conducted for a minimum of 5 hours a week, including one hour of
tutorial, moot court, project work etc. In deciding whether a particular subject paper
legitimately has a credit value of 4, one must determine whether its course structure adheres
to Clause 18 of Schedule III. Therefore, in assigning credit values to the subjects offered by
it, a recognized centre of legal education must ensure that it is in accordance with the
standards prescribed under Clause 18 of Schedule III. This, however, does not mean that
subjects of a higher or lower credit value cannot be offered by a centre of legal education. It
50 | P a g e
merely means that such subjects of higher or lower credit value must have the minimum
credit value to class hour ratio prescribed under Clause 18 of Schedule III for 4-credit subject
papers. It is in this context that Clause 18 of Schedule III is of importance in the organization
of a LL.B. course.
The provisions of Clause 18 of Schedule III, only govern the organization of a subject-paper
offered as a part of the LL.B. course and not the said course as a whole. It does not in any
way prescribe the minimum number of class hours that must be conducted each week during
a semester of a regular unitary or double-degree integrated LL.B. course and, therefore,
cannot be resorted to for calculating the total number of class hours that must be conducted in
an entire semester of a regular LL.B. course, for which purpose one must turn only to Rule
10.
Having come to the conclusion that it is only Rule 10 and not Clause 18 of Schedule III that
prescribes the mandatory number of classes that must be held by a recognized centre of legal
education during a semester of a regular LL.B. course, which as noted hereinabove is also the
stand of the Bar Council of India, I may now analyze whether the Faculty of Law has in the
facts of the present case, complied with the BCI Rules and conducted the prescribed
mandatory number of class hours during the Concerned Semester. On a bare perusal of the
Faculty of Law's pleadings as also Mr. Rupal's categorical statement before this Court, it is
apparent that it is the Faculty of Law's own admitted case that it has conducted only about
311 hours of class (including 230 hours of in- class lectures, 51 hours of activities and 30
hours of tutorials) during the Concerned Semester. However, with regard to the 51 hours of
activities that were allegedly conducted by the Faculty of Law, this Court had asked Mr.
Rupal to produce a list of all such activities for which attendance was granted to the students,
in case they participated in or volunteered to organize the same. However, except a rough
scribbled note, no such list of events was produced before this Court. Moreover, there is
nothing on record to show that these events were either compulsory or that the students were
even aware of the fact that they would be granted attendance in case of their
participation/involvement with such activities, which included some "class parties".
Similarly, there is nothing on record to show when the alleged 30 hours of tutorials were
conducted by the Faculty of Law. Therefore, in my considered opinion, the Faculty of Law's
51 | P a g e
averment that it had in fact conducted 311 hours of class during the Concerned Semester
remains completely unsubstantiated and cannot be relied upon. It is for this reason that in
determining whether the Faculty of Law has complied with the BCI Rules, this Court is
constrained to consider only the 230 hours of in-class lectures conducted by it, which
admittedly were the only classes considered by the Faculty of Law for calculating the
students' individual attendance.
At this stage, it is also pertinent to mention that this Court had asked Mr. Rupal to produce
the original attendance records of the Faculty of Law for the Concerned Semester. Having
perused the original attendance records, I find that there are glaring discrepancies in the
same. Firstly, it may be noted that the Faculty of Law as on date continues to mark
attendance in the most archaic fashion on loose attendance sheets that are maintained in a
most disorganized manner. Secondly, the attendance records of any given day reveal that the
attendance of the students has not been marked properly. Not only is the students' attendance
of any given day marked by multiple different pens (sometimes of various different colours),
but there is also manifest over- writing in a vast majority of the records produced before this
Court. It is apparent that the students' attendance has not been reliably marked by the
concerned faculty members or even by the same person, and the attendance records are
frequently edited ex-post facto. Furthermore, while Mr. Rupal has contended that the Faculty
of Law has in compliance with Clause 18 of Schedule III conducted 311 hours of class
during the Concerned Semester, he has in the same breath paradoxically contended that each
student was granted 32 hours of grace attendance on account of classes not conducted by
teachers due to their prior engagement in organizing and attending activities of their own.
Evidently, the two contentions are mutually exclusive, since the very concept of grace
attendance in the present case is premised on the fact that faculty members were unable to
take classes on account of their own professional commitments. Thus, it emerges that the
students of Faculty of Law were granted attendance for 32 hours of classes that never took
place to begin with. Therefore, I find merit in the Petitioners' contention that even the
attendance records as maintained by the Faculty of Law are manifestly arbitrary and utterly
unreliable.
52 | P a g e
From the aforesaid conclusions, it becomes apparent that the Faculty of Law has during the
Concerned Semester, reliably conducted only 230 hours of class, which is approximately
only 50% of the mandatory requirement under Rule 10 of the BCI Rules of conducting at
least 450 hours of class during a semester of the regular unitary LL.B. course. Needless to
say, this is certainly a most regrettable state of affairs, especially for a leading centre of legal
education in the capital of the country such as the Faculty of Law. There is no gainsaying that
legal advocacy in India has acquired the status of a regulated profession due its direct nexus
with general public interest. In democratic societies such as ours, where legal conflicts
arising out of the exercise of competing legal rights are inevitable, it is imperative that
lawyers have the requisite competence to ensure the skilled resolution of such conflicts
before various judicial, legislative and executive forums. Access to an in-depth and multi-
faceted legal education is perhaps, the most important measure for ensuring that young
students acquire the skills necessary for any practicing advocate worth his/her salt. It is for
this reason that the Bar Council of India has in Part IV of the Bar Council of India Rules,
prescribed the mandatory standards of legal education that must be maintained by all
recognized centres of legal education.
It cannot be emphasized enough that recognized centres of legal education must meticulously
ensure that they are in compliance with the mandatory standards of legal education
prescribed by the Bar Council of India, which includes holding the minimum number of class
hours prescribed under Rule 10 of the BCI Rules. In this context, it may be appropriate to
refer to the observations of the Kerala High Court in paragraph 16 of its decision in Satheesh
Kumar N. V. Mahatma Gandhi University [2015 SCC OnLine Ker 29037], which reads as
under: -
Therefore, the prescription of the minimum hours of lecture classes and holding of tutorials,
moot court and seminars by the Bar Council of India are to be scrupulously followed by the
Universities. The above exercises are essential to chisel out the best in a law student many of
whom are destined to become lawyers, judicial officers, parliamentarians etc. The possible
lag in the course is not an excuse for the Universities to commit breach of the statutory rules
and the classes cannot also be telescoped."
6. PRAYER
53 | P a g e
The writ petitions along with all pending applications are disposed of in the aforesaid terms
with no order as to costs.
The Bar Council of India is directed to exercise its statutory powers under the Advocates Act,
1961 as also the Bar Council of India Rules, and take immediate steps to ensure the
compliance of inter alia the Rules of Legal Education, by all its recognized centres of legal
education.
7. CASE CITED
Thus, what emerges is that despite the repeated observations of various High Courts, recognized
centres of legal education often violate the mandate of the BCI Rules by not holding the
prescribed mandatory minimum number of class hours. The rampancy of such transgressions by
law colleges is not only attributable to the educational institutes but also to the Bar Council of
India, which has inevitably failed to exercise its powers of inspection under the BCI Rules and
periodically inspect its recognized centres of legal education, in order to ensure their
compliance with the said Rules. There is no gainsaying that it is incumbent upon the Bar Council
of India, which is a statutory body established under the Advocates Act, 1961, to not only
promote and lay down the standards of legal education in the country but also to ensure their
observance by recognized centres of legal education.
In view of my aforesaid conclusion that it is Rule 10 read with Rule 2(xxiii) that prescribes the
mandatory minimum number of class hours and working days to be conducted by a recognized
centre of legal education, as also my aforementioned finding that the Faculty of Law has reliably
conducted only 230 hours of class during the Concerned Semester, it is apparent that the Faculty
of Law has not complied with the mandate of the BCI Rules. Mr. Rupal has vehemently
contended that it is not Rule 10 but Clause 18 of Schedule III that prescribes the mandatory
minimum number of classes that must be conducted by a recognized centre of legal education,
and in compliance with the said Clause, the Faculty of Law has conducted the mandatory number
of class hours. However, even if this Court were to accept Mr. Rupal's plea that it is Clause 18 of
Schedule III which prescribes the mandatory minimum number of class hours to be conducted by
a recognized centre of legal education, the Faculty of Law is still deficient in respect of the
alleged requirement of the said Clause, since it requires at least 375 hours of class (out of which
54 | P a g e
at least 300 hours are to be utilized for delivering in- class lectures and 75 hours are to be
dedicated to tutorials/moot court/project work) to be conducted by the concerned institute,
whereas it is the Faculty of Law's own admitted case that it has at best conducted only 311 hours
of class. Thus, looked at from every possible angle, the Faculty of Law is deficient by at least
139 hours in respect of conducting the requisite number of class hours prescribed under the BCI
Rules and is, therefore, in clear violation of the said Rules.
At this stage, I may also briefly deal with the Petitioners' contentions pertaining to the strikes
held by DUTA, on account of which strikes it is alleged that many faculty members of the
Faculty of Law cancelled several classes. While I find that there is prima facie reason to believe
that the said strikes saw the large scale participation of faculty members from the Faculty of
Law, due to which students have been unfairly deprived of an opportunity to meet the prescribed
attendance criteria, in view of my finding that the Faculty of Law's own pleadings reveal an
admitted case of its deficiency in complying with the BCI Rules, I have not deemed it necessary
to delve into the issue of how the faculty members' alleged participation in the said strikes has
affected the students' attendance for the Concerned Semester
In view of the position that the Faculty of Law is in glaring violation of Rule 10 of the BCI
Rules, I may now analyze the third and final issue before this Court, i.e., whether the Faculty of
Law can detain its students on the ground of shortage of attendance in accordance with Rule 12
of the BCI Rules, when it has itself not complied with the said Rules and held the mandatory
number of class hours prescribed thereunder. In determining this issue, it is important to first
understand the effect of a recognized law college's non-compliance with the BCI Rules on its
students' attendance. Given that Rules 10 and 2(xxiii) prescribe a mandatory minimum number
of class hours and minimum number of working days to be conducted by any recognized centre
of legal education, students have a reasonable expectation that their respective law colleges will
comply with the same and hold the prescribed minimum number of class hours and minimum
number of working days throughout a semester of their regular LL.B. course. Therefore, students
understandably plan their leaves and own academic schedules as per the BCI Rules and their
institute's own rules and regulations, if any, pertaining to absence and attendance. An academic
curriculum, which includes the schedule of classes, must be determinate and predictable enough
to allow students to plan their leaves and organize their respective academic schedules.
55 | P a g e
Furthermore, it may be that due to some unforeseen circumstances such as sickness, family
commitments, bereavements etc., even the most regular and dedicated of students may miss
classes. Any well-planned academic curriculum must be able to accommodate such legitimate
concerns and allow students a reasonable opportunity to make up the shortfall in their attendance
caused due to such circumstances. When a recognized law college does not comply with Rule
10, it essentially deprives its students of a reasonable chance to attend the necessary number of
classes to meet the mandatory attendance criteria prescribed under Rule 12, since it does not
afford the students an adequate opportunity to make up the shortfall in their attendance due
to classes missed on account of valid concerns, or leaves taken under the legitimate expectation
of having an adequate opportunity to attend future classes to compensate for their absence.
In the facts of present case, for instance, the Faculty of Law has admittedly held only about 230
hours of class during the Concerned Semester. Assuming that it had, in compliance with Rule
2(xxiii), held the mandatory minimum of 5 hours of class a day for its regular unitary LL.B.
course, I find that the Faculty of Law had at best conducted only 46 days of class during the
Concerned Semester, which is regrettably only 51% of the total requirement of 90 working days
as per Rules 10 and 2(xxiii) of the BCI Rules. In order to meet the prescribed mandatory
attendance criteria under Rule 12, students would have had to attend approximately 32 days of
class, thereby leaving them with a very narrow margin of only 14 days to miss classes for any
reason whatsoever. In comparison, if the Faculty of Law would have complied with the
provisions of BCI Rules and conducted the requisite minimum of 450 hours of class over a total
of at least 90 working days, students would have been able to avail 27 days of leave to meet the
prescribed attendance criteria of 70% as per Rule 12. Evidently, students would have had a far
more realistic and reasonable opportunity to make up any shortfall in their attendance had the
Faculty of Law complied with the BCI Rules and held the prescribed mandatory minimum
number of class hours.
Mr. Rupal has contended that, even if the Faculty of Law had itself not held the mandatory
minimum number of class hours prescribed under the BCI Rules, attendance necessarily has to
be calculated only on the basis of the number of classes actually held and, therefore, students
were expected to meet the attendance criteria prescribed under Rule 12 as calculated on the basis
of the number of classes actually held by the Faculty of Law. However, even if I were to assume
56 | P a g e
that Mr. Rupal's contention is correct, I find that it is only possible for students to plan their
leaves and academic schedules when they have prior information about the number of classes
that are going to be conducted and their approximate respective durations. In the absence of such
information, academic schedules are too indeterminate, as a result of which students are unfairly
disadvantaged since they are inevitably unable to avail any leave, for medical reasons or
otherwise, without uncertainty or undue anxiety of falling short of the mandatory attendance
criteria. Even otherwise, I am of the opinion that, merely because attendance must be calculated
on the basis of the number of classes actually held, the Faculty of Law is not exonerated from the
legal obligation to comply with the BCI Rules and hold the mandatory minimum number of class
hours and working days as prescribed thereunder.
Therefore, while there can be no doubt about the fact that the students of a regular LL.B. course
must meet the attendance criteria prescribed under Rule 12 of the BCI Rules, the question in this
case is whether they can be realistically expected to meet the said attendance criteria in the first
place, when the number of classes actually held does not even afford them an adequate
opportunity to make up the shortfall in their attendance due to classes missed on account of valid
concerns, or leaves taken under the legitimate expectation of having an adequate opportunity to
attend future classes to compensate for their absence? There is always a legitimate expectation
with every student to bridge the shortfall in his/her attendance by the time the full term
concludes. To render the same impossible or unfairly onerous, by not complying with the BCI
Rules and holding the prescribed mandatory number of class hours and working days, definitely
mars the students' prospects of achieving the minimum attendance criteria required by the Bar
Council of India, especially in circumstances such as the present case where there is a glaring
deficiency in the number of classes held by the concerned recognized centre of legal education.
However, in light of the aforementioned infractions on part of the Faculty of Law, the question
which now arises for consideration concerns the nature of reliefs that may be granted to the
petitioners in the present batch of writ petitions. I am of the considered view that, in the facts of
the present case, it is not sufficient for this Court to stop at merely declaring that the Faculty of
Law has, by failing or neglecting to hold the prescribed mandatory minimum number of class
hours, illegally infringed its students' legitimate expectations to have an adequate opportunity to
meet the prescribed mandatory attendance criteria. It is a settled legal position that Article 226 of
57 | P a g e
the Constitution of India confers wide powers on this Court to grant such consequential reliefs as
may be necessary in the interests of justice to meet the peculiar circumstances of every case. I am
of the view that in the facts of the present case, the failure to exercise this power will inevitably
result in the grant of an incomplete relief with no real remedy being awarded to the Petitioners,
who have not only been illegally detained from giving their end-semester examinations but have
also been deprived of their statutory right to attend a certain minimum number of class hours
during the course of the Concerned Semester. At this stage, it may be appropriate to refer to the
decision in the case of State of Madhya Pradesh v. Bhailal Bhai [(1964) 6 SCR 261], wherein the
Supreme Court has expounded the legal position concerning the power of this Court to effect the
redressal of rights that have been illegally infringed, by granting suitable consequential reliefs.
For the sake of ready reference, the relevant paragraph 15 of the decision of the Supreme Court
in Bhailal Bhai (supra) has been reproduced herein below: -
We see no reason to think that the High Courts have not got this power. If a right has been
infringed -- whether a fundamental right or a statutory right -- and the aggrieved party comes to
the court for enforcement of the right it will not be giving complete relief if the court merely
declares the existence of such right or the fact that that existing right has been infringed. Where
there has been only a threat to infringe the right, an order commanding the Government or other
statutory authority not to take the action contemplated would be sufficient. It has been held by
this Court that where there has been a threat only and the right has not been actually infringed an
application under Article 226 would lie and the courts would give necessary relief by making an
order in the nature of injunction. It will hardly be reasonable to say that while the court will grant
relief by such command in the nature of an order, of injunction where the invasion of a right has
been merely threatened the court must still refuse, where the right has been actually invaded, to
give the consequential relief and content itself with merely a declaration that the right exists and
has been invaded or with merely quashing the illegal order made."
n the present case, this Court must perform the task of balancing the binding mandate of the BCI
Rules and the students' legitimate expectations to have a determinate academic schedule and an
adequate opportunity to make up the shortfall in their attendance before the conclusion of an
academic semester on one hand, against the Faculty of Law's plea that the students ought to have
met the prescribed attendance criteria vis-à-vis the lectures actually delivered. I am of the
58 | P a g e
opinion that the only way the aforementioned concerns can be balanced in the facts of present
case is by directing the Faculty of Law to conduct as many extra classes as may be necessary for
it to meet the mandatory standards prescribed under the BCI Rules. Such a direction will not
only be in consonance with the mandate of the Bar Council of India, which the Faculty of Law
was bound to comply with as per the stand of Bar Council of India itself, but will also ensure that
not only the Petitioners but also other similarly placed students who could not attend classes due
to legitimate reasons, including medical concerns, are not held ineligible only because the
Faculty of Law did not hold the statutorily prescribed mandatory minimum number of class
hours and working days.
59 | P a g e

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VIRTUAL COURT PROBLEM

The point that arise for our consideration is as under:

(a) is it entitled to avoid its liability to the third party also? Or

My argument is in favor of respondent wife.

It is observed that this is a case of dowry in this case was otherwise than under normal

Section 23(2), Hindu Marriage Act, 1955.

Rule 4 of the Order reads as follows -.

Refusal of decree in five-year separation cases on grounds of grave hardship to respondent.

Section 300 (3): A General Overview

Situation before 1958

That is why the court observed that:

(vii) Even if it is a brief statement, it is not to be discarded.

My argument in against ‘A’

A. Respondent had the knowledge of the consequences of the act

B. The act of respondent was likely to cause death

C. The death of the deceased was caused by the act of respondents

D. The respondents failed to maintain standard of monitoring patient undergoing anaesthesia

2. NAME OF THE COURT

A. RESPONDENT HAD THE KNOWLEDGE OF THE CONSEQUENCES OF THE ACT

THE ACT OF RESPONDENT WAS LIKELY TO CAUSE DEATH

1.Conversation between lawyer and client

2. NAME OF THE COURT

Hasan jardari Versus. State of Maharashtra

1. Hasan Jardari is a Muslim, 22-year-old Commerce Graduate from taluka Baramati.

Section 374 – Appeals from convictions.

Aim and Objective of Sec. 361

There are four essentials that must be met with

a. Taking or enticing away a minor or a person of unsound mind.

d. Such taking or enticing must be without the consent of the guardian

Scope of Section 366

ii. That she might or would be forced or seduced to illicit intercourse, or

iii. By means of criminal intimidation or otherwise by inducing a woman to go from any

Scope of ‘With intent that she may be compelled... etc.’

2. NAME OF THE COURT

Adarsh Raj Singh vs Bar Council Of India & Ors.

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