62f91ea3e4b0d141b7b41987 Original

Law optional De Facto IAS PYQ Answer
UPSC 2017 Law Optional Paper Solution

Part – A [Crime and Tort]
Q1. Answer the following in about 150 words each. Support your answer with legal
provisions and judicial pronouncements:
Q1 (a) “Law recognizes that ‘mistake’ must be in good faith.” In this backdrop, explain the
defence of ‘mistake’ contained under General Exceptions of the Penal Code.
APPROACH
INTRODUCTION Introduce concept of mistake and rationale
BODY Discuss good faith under IPC & mistake of fact
CONCLUSION Conclude with essential elements
Sections 76 and 79 of Chapter-IV (General Exceptions) of the Indian Penal Code, 1860
explain the provisions about “Mistake of Fact” and “Mistake of Law”. These provisions are
based upon the common law maxim “Iqnorantia facti doth excusat; Ignorantia juris non
excusat.” (Ignorance of fact is an excuse, but ignorance of law is not excused.) .
Mistake of fact is a good defence in criminal law, which is explained in two Sections 76
and 79. Both of these Sections are included in General Exceptions (Chapter-IV)
GOOD FAITH : The words “good faith” means “the act done with due care and attention”.
They also include the genuine belief of the person. The burden of proof lies upon the
person who wants to take the shelter of good faith. Good faith is a question of fact.
Section 52 of IPC: essential ingredient for good faith is due care and attention .
Even if a person is honest in his intentions, he is expected to act with due care and
caution. The definition of good faith under the General Clauses Act is not applicable to an
offence under the IPC, because of the definition available in Section 52 of IPC. Due care
denotes the degree of reasonableness in the care sought to be exercised.
In State of West Bengal v. Shew Mangal Singh, Supreme Court held that due care and
caution principle requires three factors, firstly, the nature of the act committed by the
accused; secondly, its magnitude and importance, and thirdly, the facility a person has
for the exercise of the care and attention.
Section 76: Mistake of Fact
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The whole section does not describe the defence of mistake of fact as is the general belief. The
section can be divided into two parts, only the second part of which discusses the law relating to
the defence of mistake of fact while the first part does not do so. The division is as under:
(i) Nothing is an offence which is done by a person who is bound by law to do it.
(ii) Nothing is an offence which is done by a person who by reason of a mistake of fact
and not by reason of a mistake of law in good faith believes himself to be bound by law to
do it.
The first part of the section does not use the word ‘mistake’ at all. It simply says that a thing is
not an offence if it is done by a person who is legally bound to do it. When law asks a person to
do something which he does, it is not an offence. A person is bound by law to do something when
the law puts him under an obligation. Doing a legal duty is not an offence. A person who is bound
by law to do something does not commit an offence when he does it. There is no question of
mistake of fact, mistake of law or good faith under this part of the section.
The second part of the section deals in fact with the defence of mistake of fact. Under this part
a thing is not an offence if it is done by a person who because of mistake of fact and not of mistake
of law in good faith believes that he is bound by law to do it. When a person is in fact not bound
by law to do something but he does that by reason of a mistake of fact and not mistake of law in
good faith believing that he is bound by law to do it, it is not an offence. Mistake of fact and good
faith must be proved to be present while mistake of law must be proved to be absent under this
part of the section. In other words, the well known principles ‘ignorantia facti excusat’ (ignorance
of fact is excusable) and ‘ignorantia juris non excusat’ (ignorance of law is not excusable) have
been incorporated under this part. There may be a difference between ignorance and mistake but
they have been treated as same here.
The Supreme Court has correctly appreciated the distinction between the two parts of the section
in State v. Shew Mangal Singh, where the facts were that a police patrol party opened fire under
the orders of a Deputy Commissioner of Police, after it was attacked on a dark night. One
Assistant Commissioner of Police was injured in the attack. As a result of the firing by the patrol
party two persons were killed. After a lapse of about nine years the police personnel were
prosecuted for murder. The Supreme Court in the appeal against their acquittal held that the
prosecution did not succeed in proving the case against them. There was no question of proving
the defence of mistake of fact by the accused. It is clear that the order of firing given by the
superior officer to his subordinates was given under commands of the law and, therefore, the
patrol party was bound to obey the orders under the first part of section 76 of the Code. Since the
first part of the section was applicable there was no question of proving of mistake of fact and
good faith by the accused at all. Consequently, they were not held liable for murder.
Illustration (a) in this section also states that when a soldier while obeying the orders of his
superior officer in conformity with the commands of the law fires on a mob, he does not commit
an offence. The key words in this illustration are ‘in conformity with the commands of the law’.
The subordinate officer is protected only when the orders of the superior officer are in conformity
with the commands of the law.
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A policeman who tortures anyone under the orders of a superior officer is not protected under this
section unless he proves that he was acting under fear of instant death. Illegal acts done under
the orders of a parent or a master would make the doer liable for the same and this section does
not give any benefit to him. This lack of protection evidences the ‘good faith’ requirement of the
defence of mistake.
Mistake of Fact v. Mistake of Law

The expression ‘mistake of fact’ means that there is a misconception in the mind about the
existence of a fact. If the truth or otherwise of a fact is not known correctly, it is a mistake of fact.
‘Mistake of law’, on the other hand, is a mistake as to the existence or otherwise of a law and
includes a mistake as to what the law is. Mistake of law is not an excuse/ defence under IPC.
Section 79
Section 79 which says that nothing is an offence which is done by any person who is justified by
law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith,
believes himself to be justified by law, in doing it.
EXAMPLES : A sees Z commit what appears to A to be a murder. A, in the exercise, to the best
of his judgment exerted in good faith, of the power which the law gives to all persons of
apprehending murderers in the fact, seizes Z, in order to bring Z before the proper authorities. A
has committed no offence, though it may turn out that Z was acting in self-defence.
Essential Elements of Defence of Mistake

1. FACTS SHOULD HAVE BEEN BELIEVED BY HIM : To avail the protection under section 76
and 79, the facts should have been believed by him.
2. ACT SHOULD BE REASONABLE : Mistaken act must be reasonable to avail the protection
under section 76 and 79.
3. MISTAKE OF FACT, NOT MISTAKE OF LAW : A mistake which takes place when some fact
which really exists is unknown; or some fact is supposed to exist which really does not exist.
4. GOOD FAITH : The words “good faith” means “the act done with due care and attention”.
Q1 (b) In all robbery, there is either theft or extortion. Explain.
APPROACH
INTRODUCTION Introduce concept of robbery
BODY Discuss section 390 and robbery by theft and robbery by extortion
Discuss essential ingredients of robbery
CONCLUSION Conclusion with the nature of offence robbery is.
Robbery is defined by the Black’s Law Dictionary as the felonious act of taking the personal
property in the possession of another from his person or immediate presence against his will
accomplished using force and fear, with an intention of permanently depriving the true owner of
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the thing in question. Robbery in common language means to deprive a person of his or her
property
Section 390. Robbery.—In all robbery there is either theft or extortion.
When Theft is Robbery
Theft is robbery when in order to commit theft or while committing theft, or while carrying away or
attempting to carry away property obtained by theft, the offender voluntarily causes or attempts
to cause to any person death, subject him/her to wrongful restraint or cause hurt or induce fear of
instant death, instant wrongful restraint or causing instant hurt.
Thus, theft becomes robbery when the following conditions are satisfied;
• When the offender voluntarily causes or attempts to cause:
o Death, wrongful restraint or hurt or
o Fear of instant death, instant wrongful restraint or instant hurt.
• And the above act(s) is done
o While committing the theft
o To commit the theft
o While carrying away the property obtained by theft or o While attempting to carry
away property obtained by theft.
For example: A holds Z down and fraudulently takes Z’s money and jewels from Z’s clothes
without Z’s consent. Here A has committed theft, and by committing of that theft, has voluntarily
caused wrongful restraint to Z. A has therefore committed robbery.
State of Maharashtra vs. Joseph Mingel: In this case, it was held that in order to establish
Robbery by Theft it was essential to prove all the 5 necessary ingredients laid down under Section
378 which is said to constitute theft. If anyone of the five ingredients of Section 378 is not fulfilled
then, robbery under Section 390 cannot be said to have been committed
When Extortion is Robbery

Extortion becomes robbery when the following conditions are satisfied;
1. When a person commits extortion by putting another in the fear of instant death, wrongful
restraint or hurt
2. Then the offender induces the person under such fear to deliver the property at that very
instant; then and there.
3. The offender is in the near presence of such a person put in fear at the time of extortion
Illustration: A meets Z and Z’s child on the high road. A takes the child and threatens to fling it
down a precipice unless Z delivers his purse. Z, in consequence, delivers his purse. Here A has
extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is present. A
has therefore robbed Z.
Theft or Extortion? Even though a robbery would always be either theft or extortion as shown
by the definition, in practice it may sometimes be quite difficult to identify as to which part is
robbery by theft and which one robbery by extortion. For instance, A enters into the house of В
and pointing a revolver at him asks him to surrender all the valuables. While В starts surrendering
the valuables, A himself starts picking up some of the other valuables.
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Ingredients: The essential ingredients of Robbery are:
• There must have been commission of theft as defined in Section 378;

• The act of theft must have been committed by the offender causing or attempting to cause
fear of death, hurt or wrongful restraint or fear of instant death or instant hurt or instant
wrongful restraint; and
• There must have been commission of extortion as defined in Section 383 and while doing
so the offender must have been in presence of the person and subsequently has put the
person in fear of instant hurt or instant wrongful restraint or instant death and by causing
so has induces the person to deliver some property in possession of the person so put in
fear.
Robbery under this Section is cognizable, non-bailable, non-compoundable, and triable by

Magistrate of the first class
Q1 (c) “Law of torts is said to be a development of the maxim ‘Ubi jus ibi remedium’.”
Discuss the statement.
APPROACH
INTRODUCTION Introduce concept and meaning
BODY Discuss historical context and essential elements
CONCLUSION Conclude with its connection with the law of tort.
The law of tort is said to be the development of the maxim Ubi jus ibi remedium.
Meaning
The meaning of the word 'jus' is legal authority so the meaning of ubi jus ibi remedium is where
there is a right there is a remedy. The right and remedy are conjoined terms. If someone has the
right regarding something then obviously there exists some sort of remedy in case of the violation
of such right.
Historical Context
In the famous case of Leo Feist v. Young, the circuit court of appeals of the USA observed that:
it is an elementary maxim of the equity of jurisprudence and there is no wrong without a remedy.
If any legal right of a person is violated then, the right to go to the court of law also exists provided,
such right is legal. Moral or religious rights are not actionable.
Essentials:
• This maxim is applicable only where the right in question is legal.
• The wrongful act must violate the legal right of a person; only then the cause of action may
arise.
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• In case, no legal injury is done to the person then the maxim 'damnum sine injuria' will be
applied.
Sardar Amarjit Singh Kalra v. Promod Gupta & Ors: The court held that the principle of ubi jus
ibi remedium is recognized as a basic principle of the theory or philosophy of law. The Supreme
Court also held that it is the duty of the courts to protect and maintain the right of parties and help
them instead of denying them relief.
In D.K. Basu v. State of West Bengal, Mr. D.K.Basu who was the chairman of legal aid services,
West Bengal wrote a letter to Chief justice of India describing the death of a person in police
custody which was published in the newspapers. Thereafter some guidelines regarding the
arrested persons were issued by the Supreme Court. The court further held that violence in police
custody is the violation of legal right of that person and the compensation in the form of remedy
must be given in such cases.
In Bhim Singh v. State of Jammu & Kashmir, Bhim Siggh was detained and was not allowed
to attend the parliamentary session. Moreover, he was also not produced before the magistrate
in time. There is a clear cut violation of Article 21 of the Constitution of India. The Supreme Court
held that the defendants were responsible and awarded Rs.50,000 as compensation to the
petitioner for the infringement of his fundamental right.
In Maretti v. William, the plaintiff was restrained to withdraw the money from the defendant's
bank in spite of the presence of sufficient amount of funds in his account. So there was the
violation of the legal right of plaintiff. The court applied the maxim ubi jus ibi remedium, and held
that the plaintiff is entitled to get the damages because of the infringement of his legal right.
Conclusion
Where the statutory laws do not provide any remedy, the legal principle, 'where there is a right
there is a remedy' shall be applied (Shivkumar Chadha v. Municipal Corporation of Delhi)
The basic idea behind ubi jus ibi remedium is that no wrong will be unredressed if it can be
remedied by the court. The maxim is generally true as no right exists without a remedy. The
maxim is accepted by the law of torts and provides a remedy in each and every case as this
doctrine of common law in England provides a remedy for each and every wrong.
Q1 (d) Explain ‘necessity’ as a defence for the liability of tort and also mention the classes
of necessity.
APPROACH
INTRODUCTION Introduce concept
BODY Discuss essential elements, types, limitation
CONCLUSION Conclude with importance of doctrine of necessity
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The doctrine of necessity states that if an act is done and it causes harm but it is done in good
faith in order to prevent harm, the person who does such an act is not liable. This is so provided
that the harm caused due to an act done in necessity should not be intentional in nature. Also, it
should only be done in cases where the purpose is to prevent greater harm which might be caused
if the minor harm is not caused by the defendant.
This concept is based on the Latin maxim of ‘Salus populi suprema lex esto’ which means that
welfare of the people should be the supreme law and if a person is causing any damage to a
person’s rights or property as to prevent greater harm, it is excusable.
Tort Law: Defence of Necessity

In common law, the defence of necessity gives the state or an individual a privilege to take or use
the property of another i.e. a person has the qualified privilege to intentionally trespass onto the
land of another in order to prevent serious harm to oneself, to one’s own land, to one’s chattels,
or to the person, land, or chattels of another.
This is based on the Latin common law maxim of ‘necessitas inducit privilegium quod jura
privata’. This means that ‘Necessity induces a privilege because of a private right. A court will
grant this privilege to a trespasser when the risk of harm to an individual or society is apparently
and reasonably greater than the harm to the property.
In the case of Cope v. Sharpe (No 2) [1912] 1 KB 496, The defendant entered the plaintiff’s land
to prevent the spread of fire to the adjoining land and prevent the damage which could have been
caused. The plaintiff, in this case, sued the defendant for trespass but since the defendant’s act
was considered to be reasonably necessary to save the property and from real and imminent
danger, the court held that the defendant was not liable for trespass as he has committed an act
of necessity.
Essential Elements
It is essential to show the presence of the following to prove the necessity defence:
1. The damage caused was less than the harm that would have occurred otherwise.
2. The person reasonably believed that his actions were necessary to prevent imminent
harm.
3. There was no practical alternative available for avoiding the harm.
4. The person did not cause the threat of harm in the first place.
Types of Necessity
1. Private Necessity: Private necessity usually involves trespassing or interfering with

another’s property done by a person to protect himself or his property. It is a partial
defense which means the defendant who commits trespass and claims the defence of
private necessity, must still pay for any harm caused to the plaintiff’s property by his
trespass.However, the defendant is not liable for nominal or punitive damages.
o In the case of Vincent v. Lake Erie Transportation Co., the Defendant was at
the dock of the plaintiff to unload cargo from the steamship owned by the
defendant. Due to a violent storm developed, the defendant was unable to leave
the dock safely so, instead, he tied the ship to the dock. A sudden wind threw the
ship against the dock significantly damaging the dock. It was held that a private
necessity may require one to take or damage another’s property, but
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compensation is required. The defendant deliberately kept the ship tied to the
dock, if not, the ship could have been lost creating far greater damage.
2. Public Necessity: Action taken by public authorities/officials or private individuals to avert
a public calamity which had a tendency to harm the public at large. This is applied when
any trespass is done by a person to protect a greater community. Public Necessity is an
absolute defence which means that the persons who have trespassed are not required to
pay any compensation. Generally, public employees like firefighters, police, army
personnel claim public necessity.
o Surocco v. Geary: San Francisco was hit by a major fire. The plaintiff was
attempting to remove goods from his home while the fire raged nearby. The
defendant (Mayor) authorized that the plaintiff’s home demolished to stop the
progress of the fire and to prevent its spread to nearby buildings. The plaintiff sued
the defendant claiming he could have recovered more of his possessions had his
house not been blown up. The court held that the right of necessity falls under
natural law and exists independent of society and government. Individual rights
must give way to the higher law of impending necessity. Here, blowing up the
Plaintiff’s house was necessary to stop the fire. Any delay in blowing up the house
to allow him to remove more of his possessions would have made blowing up the
house too late.
Limitations to Defence of Necessity
1. The defence will not succeed if the necessity is arising out of the negligence act of the
defendant himself.
2. There must be a real or imminent danger to the person or property.
3. Distinction is maintained between the safety of human life and the safety of property.
Hence, the defence of necessity in tort is a well rounded jurisprudence which helps the law to
take into account actions which may cause damage, but are in the greater good. If this defence
did not exist, then greater harm would ensue as no one will be incentivised to intervene and
protect property/ life in public or private interest.
Q1 (e) “The object of the Protection of Civil Rights Act, 1955 is to abolish untouchability.”
Discuss.
APPROACH
INTRODUCTION Introduce concept and constitution
BODY Discuss preamble, provisions and salient features
CONCLUSION Conclude with importance in contemporary India
Dalits are persons who have traditionally been considered ‘untouchable’ and have been excluded
from the caste system. Untouchability is a phenomenon that legitimises degrading, humiliating
and exploitative practices against persons belonging to specific caste groups. The untouchables
suffered from various disabilities like religious, social, economic and political ones.
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This can be better understood under the framework of social exclusion. Buvinic explains social
exclusion as ‘“the inability of an individual to participate in the basic political, economic, and social
functioning of society,” which involves the “denial of equal access to opportunities imposed by
certain groups in society upon others,”’
In order to tackle the problem of untouchability, the Constitution of India contains various
provisions which provide protection to the untouchables.
Constitution & Abolition of Untouchability

The Indian Constitution contains provisions for the right to equality in Article 14 to 18. These
articles deal with equality on the basis of religion, opportunity in public employment, equal pay for
work and abolishment of untouchability. Article 17 of the Indian Constitution has abolished the act
of untouchability and its practice in any form is banned.
‘’Untouchability’’ is an offense which is punishable in accordance with the law. The Untouchability
Act, 1955 was enacted by the Parliament under Article 35(a)(ii) of the Constitution. This Act was
amended by the Untouchability Amendment and Miscellaneous Provision Bill, 1972 which was
passed by the parliament and enforced with effect from 1976, which has been renamed as
Protection of Civil Rights Act, 1955.
Preamble
The preamble of the Act, sets out its objective as
An Act to prescribe punishment for the preaching and practice of “Untouchability” for the
enforcement of any disability arising therefrom and for matters connected therewith.
Salient Features
• The Amendment Act has tightened the provisions to remove untouchability. All untouchability
offenses which were considered within the jurisdiction of the court will now be treated as non-
compoundable offences and if the punishment does not exceed three months imprisonment can
be tried instantly.
• As punishment, courts have the power to cancel or suspend the licenses of any profession, trade,
employment, in terms of which the offense has been committed for as much as the time they
seem fit.
• One of the important characteristics of this Act is that public servants who willfully show
negligence in the investigation of any offense will be punishable under this Act.
• The Act shows surveys and studies for determining the areas where untouchability is practised,
setting up committees for implementing the Act.
• The direct and indirect preaching of untouchability and its justification has been made an offense.
Forcing any person to do sweeping has also been made punishable.
• The State Governments have been given the power to impose fines locally of any area who are
worried and help the commission to commit untouchability offences.
• One of the features is also that the Central Government will coordinate with the State
Government for the implementation of the provisions of the Act.
• The Government of India has also asked the State Governments to provide statistical and other
information about the number of cases dealt by them under this Act along with the detailed
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information regarding the steps taken by them for the proper implementation of the provision of
the Act.
Provisions
• Section 3: whosoever will prevent any person from entering the public worshipping place or
performing any religious services then the punishment for the term not less than one month and
not more than six months and also a fine of not less than one hundred rupees and not more than
five hundred rupees will be given.
• Section 4: whosoever on the basis of untouchability force any person with any condition with
regard to enter in any shop, public restaurant, hotel or place of entertainment any also restrain
with the use of utensils, and other things kept in Dharamshala, public restaurant, or to use of any
stream, river, tanks, etc then the punishment will be given of imprisonment for a term not less
than one month and not more than six months and a fine of not less than one and rupees and not
more than five hundred rupees.
• Section 5: whosoever will refuse to enter in the hospital, dispensary, educational institution or any
hostel which is for public use will be punished with the imprisonment of not less than one month
and not more than six months and with a fine of not less than one hundred rupees and not more
than five hundred rupees.
• Section 6: It says that whosoever will refuse to sell goods and to render services to any person
on the ground of untouchability will be punished with imprisonment for not less than one month
and not more than six months and will also pay fine.
• Section 7: It says that whosoever will prevent any person from exercising the rights of Article 17
or molest, cause injury, annoy, insult, or attempt to insult any person by the reason of exercising
the rights related to the abolition of untouchability will be punishable with imprisonment and fine.
It was also said that if any person refused any person to use or occupy any house or land and for
work or business, or abstain from social, professional, or business relationship then he would be
punished with imprisonment and fine.
• Section 7A: It says that if any person forces other on the ground of untouchability to be subject to
slavery, practice sweeping or to force any person to remove the skin of animals or other jobs
similar to that will be punished with the imprisonment of not less than three months and not more
than six months and with the fine of not less than one hundred rupees and not more than five
hundred rupees.
Conclusion
As with the increase in the practice of untouchability, it was necessary to bring about some change
and these provisions have helped a lot in removing the differences between the castes even
though it is still practised in some places. These provisions have helped to reduce the gap
between the upper caste and lower caste.
It provides rights to the people of lower caste to exercise their rights and live a normal life like
everyone else. The practice of untouchability makes them feel so isolated, degraded and violated
and the people of higher caste treat them with an inhuman manner which was having a bad impact
on society. With the introduction of this Act, this has ended.
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Q2. (a) “Section 34 is incorporated in the Indian Penal Code to deal with the cases where
it is very difficult to distinguish precisely the part taken by each individual in criminal act.”
APPROACH
BODY Discuss essential elements, differences from same intention & common
object.
CONCLUSION Conclude with summarising the key elements
It is a well-established principle of criminal law that a person is solely accountable for crimes
committed by himself and not for conduct committed by others. In other words, the main concept
of criminal culpability is that the individual who actually commits an offence bears the primary
responsibility, and only that person may be declared guilty and punished in line with the law.
Opposing this general rule, Section 34 of the Indian Penal Code, 1860 (IPC) states that when
criminal conduct is committed by numerous people in pursuit of a ‘common intention’, each of
them is accountable for the crime in the same way as if it were committed by him alone.
Rationale
The underlying principle is a well-recognized canon of criminal jurisprudence that the courts
cannot distinguish between co-conspirators, nor can they inquire as to the part taken by each in
the crime. Where parties go with a common purpose to execute a common object, each and
everyone becomes responsible for the acts of each and every other in execution and furtherance
of their common purpose; as the purpose is common so must be the responsibility.
Law attempts to take into account the combined effect of mens rea. Person should not be able to
hide behind a crowd, instead the increase in numbers reflect the enhanced collective mens rea.
The common belief that ‘more the people, less the guilt’ has in law, no application to the act or
commission of a crime. Gravity of a crime cannot be diluted because it is committed by several
persons, nor can the quantum of liability be redistributed among the doers because it is very
difficult to pinpoint the separate participation of each. If the law allows such distribution of liability,
no one would get the punishment intended by the law. And, it would encourage ‘group criminals.’
Section 34: Common Intention

Section 34 makes no mention of any specific offence. It establishes the rule of evidence that if
two or more people commit a crime for the same purpose, they will be found jointly accountable.
Section 34 is intended to cope with a scenario in which it may be impossible to discern between
unlawful acts committed by individual party members working in support of a common objective
or to show precisely what role each of them played.
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Barendra Kumar Ghosh v. King Emperor, 1925 in which two people demanded money from a
postman as he was counting the money, and when they shot from a handgun at the postmaster,
he died on the spot. All of the suspects fled without taking any money. In this instance, Barendra
Kumar claimed that he did not shoot the gun and was only standing by, but the courts rejected
his appeal and found him guilty of murder under Sections 302 and 34 of the Indian Penal Code.
The Court further held that it is not required that all participants participate equally. It is possible
to accomplish more or less. However, this does not mean that the individual who did less should
be exempt from blame. His legal responsibility is the same.
In the case of Ram Bilas Singh v. State of Bihar, 1963 the Court determined that the length of
punishment for each individual engaged in that conduct with common intention is determined by
the type and degree of the offence committed.
Essentials to Establish Section 34

• A criminal act committed by multiple people: The most significant need is that criminal
conduct be committed and that it be done by numerous people. It is necessary to commit
or refrain from criminal conduct. The deeds undertaken by various confederates in criminal
activity may differ, but all must collaborate or engage in the illegal business in some way.
• Common Intention: “common intention” indicates a prior concert or meeting of minds,
as well as the participation of all members of that group. In the case of Khacheru Singh
v. State of U.P., 1955, numerous people assaulted a man with lathis as he walked across
a field. The man escaped them, and when they caught up with him, they assaulted him. It
was determined that the facts of the case were adequate to establish that the accused
parties shared a common purpose in conducting the criminal offence. As a result, the most
important thing here is to demonstrate the shared intent, which may be done in any way.
• Commission of Criminal Act: A criminal act committed by the entire group is required to
establish joint culpability. It is critical that the court determine some illegal conduct was
committed with the group’s cooperation in pursuit of the common intention.
Common Intention v. Same Intention

A common intention is a pre-arranged plan or previous meeting of minds before the act’s
commitment. The term ‘common’ refers to anything that everyone has in the same proportion. It
is typical for them to have a shared object, purpose, or objective.
Same intention, on the other hand, is not common intention because it does not entail a pre -
planned meeting, sharing, or thinking.
For example, A is B’s office co-worker. Even though A is higher in seniority, B gets promoted. A
and B are enemies. A intends to exact revenge on B. B, on the other hand, has responsibilities
as the house’s oldest son. C, who is younger than B, was upset because his older brother B was
promoted. A decides to murder B on his way home from work one day. C, the younger brother,
also intends to murder B on his way home. A and C both catch and kill B at the same location.
They’ve both killed B here. However, they do not have the same goal. They both wanted to
assassinate B, but their methods were different, and their intentions were not the same. A and C
are accountable for whatever conduct they perform but are not liable for the act of another.
Common Intention v. Common Object

Section 34 IPC Section 149 IPC
According to Section 34, the number of Section 149 requires a minimum of five
participants must be greater than one. people.
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Section 34 does not constitute a distinct crime Section 149 establishes a particular offence.
but rather establishes a rule of proof.
Section 34 requires that the common intention Section 149 requires that the common item
be of any type. be one of the objects listed in Section 141.
Section 34 necessitates a previous meeting of Prior agreement is not required under
minds or prearranged plot, i.e. all of the accused Section 149. It is necessary to be a member
parties must meet together before the actual of an unlawful assembly at the time of the
attack takes place. offence.
Section 34 requires some active participation, Section 149 does not need active
particularly in a crime involving physical involvement, and responsibility arises
violence. simply by being a member of an unlawful
assembly with a shared goal.
Conclusion
When more than one person commits an offence, the case becomes more complicated in
identifying each individual’s purpose and part. The notion of shared culpability is used in such
instances. It is critical that the accused actively participate in criminal conduct while being aware
of the consequences and sharing a common intention. However, the common intention must be
ancillary to the accused’s acts and conduct, as well as the facts of the case.
Q2 (b) Discuss the different forms to outrage the modesty of a woman which have been
made punishable in the Indian Penal Code through the Criminal Law (Amendment)
Act,2013.
APPROACH
INTRODUCTION Introduce the chapter
BODY Discuss criminal law amendment, 2013, change brought with amendment,
key elements
CONCLUSION Conclude with Supreme Court pronouncement.
Section 354 provides that: -

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it
to be likely that he will thereby outrage her modesty, shall be punished with imprisonment
of either description for a term which may extend to two years, or with fine, or with both.
Section 509 provides that:-
Word, gesture or act intended to insult the modesty of a woman.—Whoever, intending to
insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits
any object, intending that such word or sound shall be heard, or that such gesture or object
shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be
punished with simple imprisonment for a term which may extend to one year, or with fine,
or with both.
Criminal Law (Amendment) Act,2013.
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The criminal Law amendment amended and inserted certain sections for protecting the rights of
women under IPC. New offences like stalking, voyeurism; The Acid attack was incorporated Don’t
tell mutated into IPC. The law bill became an act on 3rd February 2013. It was popularly known
as the Anti –Rape bill.
The change in Section 354 was with respect to the time period of punishment which was
enhanced to two years.
Change in Section 509

Section 509: Uttering any word or making any Acting any word or making any gesture
gesture intended to insult the modesty of a intended to insult the modesty of a woman.
woman Imprisonment for a term which may extend
Punishment: Imprisonment for 1 year, or fine, or to three years, and also with fine
both
Ajahar Ali v. State of West Bengal, (2013) 10 SCC 31:The victim was caught hold by the convict
while going to her tuition with her friend and was kissed, forcibly as a result of which she started
bleeding. It was contended that the offence committed therein was one under Section 354 IPC
Supreme Court held that it was a heinous crime and the modesty of the woman.
Outraging the modesty of women (Section 354)

Elements: If any person assaults or uses criminal force on any woman with an intention to outrage
her modesty, the person shall be punished with imprisonment for a minimum period of one year
and a maximum of five years, and liable to fine.
In Rupan Deol Bajaj vs. K.P.S. Gill, the court stated that when an offence is related to the
modesty of women, it could not be trivial under any circumstance. Therefore, the accused was
held liable under Section 354, IPC.
In State of Punjab vs. Major Singh, it was held that the accused was liable for outraging the
modesty of the child under Section 354, IPC. The court stated that the essence of a woman’s
modesty is her sex. Young or old, intelligent or imbecile, awake, or sleeping; women possess a
modesty capable of being outraged.
Outraging the modesty’ has been explained in Major Singh Case (1967) by Mudholkar J., as
follows:- “When any act done to or in the presence of a woman is clearly suggestive of sex
according to the common motions of mankind that act must fall within the meaning of Section
354.” As per Section 10, woman means “a female human being of any age As per Bachawat, J.,
the culpable intention of the accused is the crux of the matter; the reacting of the woman is not
always decisive. In that case, Major Singh who had caused injuries to the vagina of a 7½ months
old child by fingering was held liable under Section 323. The contention that a 7½ months old
child does not have a developed sense of modesty and hence is incapable of reacting was
rejected.
Ram Pratap v. State of Rajasthan: Where the suspect allegedly entered the victim's house once
she was alone and made her to lie on a cot and misbehaved with her, however no preparation to
commit rape was done, the suspect was held guilty under Section 354 of the IPC, 1860.
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The Supreme Court stated 'modesty' as female decency and a virtue that girls possess as a result
of their sex. The penalization is jail time of between one and 5 years and a fine. It is important to
note that it's not enough that the victim's modesty is outraged. Intention which is accompanied
with the act imputes on the suspect the knowledge of the action and is essential to hold him liable.
(c) When, under the law of torts even using reasonable care, is a person liable for the tort
of negligence? Discuss.
APPROACH
INTRODUCTION Introduce concept historically
BODY Discuss essentials of negligence, and the exception of absolute liability
CONCLUSION Generic Conclusion
Context
It is already known that the Indian law of torts is based on the English common law. Thus, the law
relating to negligence is adopted and modified by the courts of India on the principles of justice,
equity and good conscience. The term Negligence is derived from the Latin word negligentia,
which means ‘failing to pick up’. In the general sense, the term negligence means the act of being
careless and in the legal sense, it signifies the failure to exercise a standard of care which the
doer as a reasonable man should have exercised in a particular situation. Negligence in English
law emerged as an independent cause of action only in the 18th century. Similarly in Indian law,
the IPC, 1860 contained no provision for causing the death of a person by negligence which was
subsequently amended in the year 1870 by inserting section 304A.
Law Relating to Negligence
Negligence means neglect to take care, it is the omission to do something which a reasonable
man guided upon those considerations of conduct of human right/affairs, would do or doing
something which a prudent and reasonable man would not do.
Essentials
There are three essential ingredients of negligence in the law of torts:—
(i) That the defendant owed duty of care to the plaintiff.
(ii) That the defendant made a breach of that duty.
(iii) That the plaintiff suffered damage as a consequence thereof.
‘Duty of Care’ means a legal duty. As to it Lord Atkin propounded the following rule in Donoghue
v. Stevenson.
In Donoghue v. Stevenson, (1932) AC 562, the appellant drank a bottle of ginger beer which was
bought from a retailer by her friend. The bottle in fact contained the decomposed body (the
remains) of a snail. The plaintiff consumed a part of the contents which were poured in a tumbler.
The bottle was of dark opaque glass sealed with a metal cap so that its contents could not be
ascertained by inspection. The plaintiff brought an action against the manufacturer of the beer to
recover damages. Which she suffered due to serious effects on her health by shock & severe
gastro-entrails. The plaintiff claimed that it was the defendant's duty to have a system of work &
inspection sufficient to prevent snails from getting into ginger beer bottles.
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The suit was defended on the following two grounds:

(i) That the defendant did not owe any duty of care towards the plaintiff.
(ii) That the plaintiff was a stranger to the contract and thus her action was not maintainable.
The house of lords rejected both pleas of the defendant and held that the manufacturer of the
bottle was responsible for his negligence towards the plaintiff. It was categorically stated that
defendant owed duty of care to the plaintiff. It was the duty of the manufacturer to use reasonable
diligence to ensure that the bottle did not contain any noxious or dangerous matter.
In the case of Grant v. Australian Knitting Mills Ltd. (1936) AC 85. In the case, plaintiff
contracted dermatitis as a result of wearing a woolen garment which when purchased from the
retailer & was in a defective condition owing to the presence of excess sulphites which had been
negligently left in the process of manufacture. It was a hidden & latent defect and could not be
detected by any examination that could reasonably be made. The garment was made by
manufacturers for the purpose of being worn exactly as it was worn by plaintiff. It was held that
there was a duty to take care between the manufacturers and plaintiff for the breach of which the
manufacturer were liable.
It is also negligence to start a bus before a passenger gets into it, as was decided in Ishwar Devi
v. Union of India AIR 1969 Del 183, where just as the deceased had placed his foot on foot board
of the bus and had not yet gone in the conductor rang the bell and driver started the bus. The
driver made an attempt to overtake another stationary bus so closely that the deceased got
squeezed between the two buses. It was held that both the driver and the conductor were rash &
negligent is not taking proper care of safety of the passenger.
Negligence Despite Reasonable Care: Absolute/ Strict Liability
In Blyth v. Birmingham Water Works Co, Negligence was defined as the omission to do
something which a reasonable man would do or doing something which a prudent or reasonable
man would not do.
Strict or absolute liability can also arise from inherently dangerous activities or defective products
that are likely to result in harm to another, regardless of protection taken, such as owning a pet
rattlesnake; negligence is not required to be proven.
Absolute Liability: If an industry or enterprise is engaged in some inherently dangerous activity

from which it is deriving commercial gain and that activity is capable of causing catastrophic
damage then the industry officials are absolutely liable to pay compensation to the aggrieved
parties. The industry cannot plead that all safety measures were taken care of by them and that
there was negligence on their part. They will not be allowed any exceptions neither can they take
up any defence like that of ‘Act of God’ or ‘Act of Stranger’.
M.C. Mehta vs. Union of India, A.I.R. 1987 S.C. 1086: The S.C. of India was dealing with claims
of leakage of oleum gas. Due to this leakage, one advocate and several others had died. The
judges in this case came up with the Doctrine of Absolute Liability. The court then directed the
organizations who had filed the petitions to file suits against the industry in appropriate courts
within a span of 2 months to demand compensation on behalf of the aggrieved victims.
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Bhopal Gas Tragedy / Union Carbide Corporation v. Union of India, (1991) 4 SCC 548: eakage
of methyl-iso-cyanide(MIC) poisonous gas from the Union Carbide Company in Bhopal, Madhya
Pradesh led to a major disaster and over three thousand people lost their lives. There was heavy
loss to property, flora and fauna. The effects were so grave that children in those areas are born
with deformities even today. The Court applying the principle of ‘Absolute Liability’ held the
company liable and ordered it to pay compensation to the victims.
Indian Council for Enviro-legal Action vs. Union of India, AIR 1996 SC 1446: A PIL filed under
Article 32 of the Indian Constitution voiced protests of the petitioners over the presence of
industries that was causing large scale environmental pollution and endangering the lives of the
villagers who resided in the vicinity of the industries. It violated their right to life and liberty given
under Article 21. he Supreme Court initiated instant action and ordered the Central Government
and the Pollution Control Board to constitute strict measures against the said industries. The court
upheld the Doctrine of Absolute Liability here stating that the polluted environment must be
restored to a pollution free one conducive for healthy living by utilizing anti-pollution scientific
appliances. The expenditure so incurred in this process must be paid by the industries even if
their properties need to be attached for this purpose.
Hence, despite reasonable care, one can be held absolutely liable.
Q3. (a) “There is a very thin but fine and subtle distinction between culpable homicide and
murder. The difference lies merely in the different degrees of probability of death ensuing.”
Discuss the statement and refer to decided cases.
APPROACH
BODY Discuss difference in degree of probability and compare section 299 with
300.
CONCLUSION Conclude with judicial observation
Culpable homicide is genus & murder is species. Every murder is culpable homicide but not vice
versa. Under Chapter XVI: Offences Affecting Life- culpable homicide is provided for. Homicide
is a latin term homo (meaning man) & cido (meaning cut).
Section 299 & 300: An Overview
Section 299 Section 300
Intention (1) Intent to cause death (1) Intent to cause death
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Intention (2) Intent to cause bodily injury Intend to cause bodily injury: -
likely to cause death (2) known to cause death/ OR (3)sufficient in
ordinary course to cause death
Knowledge (3) Knowledge that act likely to (4) Imminently dangerous- known- that in all
cause death possibility it causes death.
IPC recognizes 3 degrees of culpable homicide: based on the mental element.

1. Culpable homicide of 1 degree: gravest form i.e. murder. Defined in section 300 and punishment
st
is provided for in section 302.

2. Culpable homicide of 2 degree: homicide not amounting to murder is defined in section 299 and
nd
punishment is provided for in the first part of section 304 [except section 299(c)].
3. Culpable homicide of 3 degree: Punished as pect second part of section 304
rd
Difference in Degree of Probability

Both Culpable homicide & Murder are under Unlawful Homicide. Actus Reus for all unlawful
homicide is the same i.e. killing of a human being. It is basically on the basis of difference of
degree of mental involvements that a homicide would amount to a mere Culpable homicide not
amounting to murder or murder. Difference between the two lies in the degree of mens rea.
Comparing 299 & 300
299(a) Clause (a) of section 299 is a mere technicality. It is identical to section 300(1) and
exists so that what is covered in section 300(1) is also covered insection 299(a) as
300(1) it is the genus. Otherwise, something falling under section 300(1) would have
amounted to murder without amounting to Culpable homicide first under section 299.
This would violate starting words of section 300 and scheme of the code.
299(b) Every clause of section 300 corresponds to 299. It has some extra elements so that
300(2) it becomes more severe (higher degree of mens rea). In clause (2) the two extra
elements are
i. Offender knows of the likelihood of causing death
ii. Likelihood is to the person to whom the harm is caused.
The distinguishing feature of mens rea required is knowledge that particular victim is
in a peculiar condition that the harm to be cause to him is likely to be fatal,
notwithstanding the fact that such harm would not in ordinary course of nature be
sufficient to cause death to person in normal condition.
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299(b) Difference is the degree of probability of death resulting from the intended injury.
300(3) 'likely' in 299(b) conveys the sense of 'probable' as distinguished from a mere
possibility.
300(3) "bodily injury sufficient in the ordinary course of nature to cause death" means
death will be the "most probable" result of the injury. This sufficiency of the injury to
cause death in the ordinary course of nature has to be assessed objectively and not
subjectively.
Ø Whether the bodily injuries found on the deceased were intentionally inflicted by the
accused? (subjective question)
Ø If so, were they sufficient in the ordinary course of nature to cause death? (objective
question)
Hence, while ascertaining intention, we only refer to the intention to cause harm. On the
other hand, sufficiency to cause death is a medical objective assessment. Intention
is only clubbed with bodily injury, and not with sufficiency to cause death.
The difference is not between mens rea, it is in the degree of actus reus.
The expression “bodily injury” in clause (3), Section 300, includes also its plural, so
that the clause would cover a case where all the intentionally caused by the accused
were cumulatively sufficient to cause the death in the ordinary course of nature
300(1) (3): knowledge should be regarding only the likelihood of causing death and not
regarding sufficiency of causing death, because otherwise, it will amount to intention
300(3) to cause death & will fall under clause (1).
Intention to cause bodily injury in addition to the knowledge that it is sufficient to
cause death means that there was intention to cause death
Legislature would not have wanted to give the same meaning to two clauses and
therefore a harmonious construction reveals that (1) has got a purely subjective test
& (3) has got subjective & objective test. Result of injury caused in (3) must be viewed
objectively if it was enough to cause the death. It does not matter whether the person
had subjective knowledge of causing death or not. Several injuries alone are not
sufficient to cause death, but cumulatively death in ordinary course of nature leads
to the conclusion that this was murder
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299(c) 299(c): knowledge of likelihood of causing death irrespective of the fact whether a
bodily injury is caused or not.
300(4)
· Some act or illegal omission by offender
· Knowledge of the offender that he is likely by his act to cause death.
300(4) - adds to these essentials following requirements
· Act is imminently dangerous
· In all probability will cause death or such bodily injury as is likely to cause death
· Act done without any excuse for incurring the risk.
300(4) usually applies where there was no intention of causing death or of causing
any bodily injury.
Emperor v. Ht. Dhiragla (1940)
Woman escaping an abusive husband, startled by seeing him and jumps in well with
the baby. Baby dies. Held: intention to cause death cannot be attributed to the
accused but knowledge can be attributed. However frightened she might have been,
she knew jumping in the well would cause the death of a child. This is Culpable
homicide not amounting to murder because the state of panic she was in was excuse
for incurring the risk of causing death.
Gyarsibai v State
Woman jumped into a river with her three children as her life had become unbearable
on account of family discord, it was held that there was no excuse for the accused
for incurring the risk of causing death of her children. Thus, the case was held to be
covered under 4thly of Sec 300.
Hence the following can be concluded from the above comparative analysis, when death is likely,
it amounts to Culpable homicide which when death is most probable, it amonts to Murder. Justice
Hidayatullah has observed that murder is an aggravated form of Culpable homicide
Q3(b) When is the principal not liable for the torts committed by his servant? Discuss.
APPROACH
BODY Discuss the rationale, constituent elements
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CONCLUSION Conclude with summarising the instances where essential elements are
not met, and master is not liable .
Vicarious liability means the liability of a person for an act committed by another person and such
liability arises due to the nature of the relation between the two. For e.g. A, is a driver who works
for B and while driving B’s car for taking him to his office, he hits C, a pedestrian due to his
negligence in driving. In such a case even though B was not driving the car he will still be liable
for the accident which was caused due to the negligence of A.
The common examples of such a liability are:

(1) Liability of the principal for the tort of his agent;
(2) Liability of partners of each other’s tort;
(3) Liability of the master for the tort of his servant.
Rationale
Several reasons have been advanced as a justification for the imposition of vicarious liability:
(1) The master has the ‘deepest pockets’. The wealth of a defendant, or the fact that he has
access to resources via insurance, has in some cases had an unconscious influence on the
development of legal principles.
(2) Vicarious liability encourages accident prevention by giving an employer a financial interest in
encouraging his employees to take care for the safety of others.
(3) As the employer makes a profit from the activities of his employees, he should also bear any
losses that those activities cause.
Constituents Of Vicarious Liability

So the constituents of vicarious liability are:
(1) There must be a relationship of a certain kind.
(2) The wrongful act must be related to the relationship in a certain way.
(3) The wrong has been done within the course of employment.
No liability of Employer if action not done in ‘Course of Employment’

The law is settled that a master is vicariously liable for the acts of his servants acting in the course
of employment. Unless the act is done in the course of employment, the servant’s act does not
make the employer liable. In other words, for the master liability to arise, the act must be a
wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act
authorised by the master. If the servant, at the time of the accident, is not acting within the course
of employment but doing something for himself, the master is not liable.
For the liability of the master to arise, the following two essentials are to be present:
(1) The tort was committed by the servant:
(2) The servant committed the tort in the course of his employment.
No liability if not a ‘Servant’?
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A servant is an agent who is subject to the control and supervision of his employer regarding the
manner in which the work is to be done. An independent contractor is not subject to any such
control. He undertakes to do certain work and regarding the manner in which the work is to be
done. He is his own master and exercises his own discretion. And independent contractor is one
“who undertakes to produce a given result, but so that in the actual exclusion of the work, he is
not under the order or control of the person for whom he does it, and may use his own discretion
in things not specified beforehand.” There are various tests used to determine a master-servant
relationship, these include control test, economic reality tests, multiple test, allocation of financial
risk test, significant outcome test, ‘integral part of the business’ test & the nature of employment
test. These are not exclusive and there is overlap in their use to determine whether a person is a
servant or not.
Conclusion
In order that the liability of A for the act done by B can arise, it is necessary that there should be
certain kind of relationship between A and B, and the wrongful act should be, in certain way,
connected with that relationship. So a master is liable for the acts of his servant if the act is done
in the course of employment. But where someone employs an independent contractor to do work
on his behalf he is not in the ordinary way responsible for any tort committed by the contractor in
the course of the execution of the work except in certain exceptional cases as dealt above.
So the servant and independent contractor are under contract of service and contract for service
respectively. The traditional view to distinguish between the two was the control test exclusively.
But in modern scenario this is not sufficient test as there is no single test.
Q3 (c) Mention the defences of torts of defamation and also discuss whether exceptions
given under the Indian Penal Code, 1860 for the offence of defamation may be claimed as
additional grounds by the defendant.
APPROACH
BODY Discuss types, defences in tort and exceptions in IPC
CONCLUSION Generic Conclusion
Defamation arises when a person makes or publishes any wrong or false statement or allegation
or false imputation related to any person, by words or in oral or by signs or in any form it is said
to defame that person.
Types of defamation: Defamation are of two types:

1. Libel
2. Slander
Libel defamation Published defamatory statement or a written statement is known as libel. It is
usually found in printed media such as social media, magazines, newspapers, etc.
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Slander defamation The defamatory statement committed verbally is known as Slander. It is

usually found in public gathering, television etc.
Defences to Defamation in Tort Law

(1) Justification or Truth In a civil action for defamation truth of the defamatory matter is
complete defence (under criminal law, besides being true the imputation must be shown to have
been made for public good). The reason for the defence is that “the law will not permit a man to
recover damages in respect of an injury to a character which he either does not or ought not to
possess.” The defence is available even though the publication was made maliciously. If the
statement is false, it is no justification that the defendant honestly and on reasonable grounds
believed it to be true.
In Radheyshyam Tiwari v Eknath (AIR 1985 Bom. 285), the defendant, who was editor, printer
and publisher of a newspaper published a series of articles against the plaintiff, a Block
Development Officer, alleging that the plaintiff had issued false certificates, accepted bribe and
adopted illegal means in various matters. In an action for defamation, the defendant could not
prove that the facts published by him were true and therefore, he was held liable.
(2) Fair Comment It is generally a defence available to authors, editors, critics, etc. It is critical
appreciation of existing facts (opinion) and not invention of new facts. (mere assertion of facts)
Further, the comment must be `fair’ i.e. without malice. Finally, this comment must be in public
interest. Administration of Government departments, public companies, public institutions and
local authorities, public meetings, pictures, theatres, public entertainment, text books, novels, etc.
are considered to be matters of public interest.
In Tushar Kanti Ghash v Bina Bhowmic (1953) 57 C.W.N. 378, the Amrit Bazar Patrika
published a news item which contained statements like `day light robbery’ which were factually
incorrect. As they were untrue statement of fact, the defence of fair comment was defeated.
(3) Privilege: There are certain occasions when the law recognizes that the right of free speech
outweighs the plaintiff’s right to reputation: the law treats such occasions to be “privileged” and a
defamatory statement made on such occasion is not actionable. Privilege may be either ‘Absolute’
or ‘Qualified’.
Absolute privilege — It is an absolute defence as under it no action lies for the defamatory
statement even though the statement is false or has been made maliciously. It is recognized in
‘Parliamentary proceedings’, ‘Judicial proceedings’, and ‘State communications’.
Qualified privilege — It is different from the defence of absolute privilege in respects. First, in
this case it is necessary that the statement must’ve been made without malice. Second, there
must be an occasion for making the statement. Generally such a privilege is available either when
the statement is made in discharge of a duty or protection of an interest or the publication is in
the form of report of parliamentary, judicial or other public proceedings.
Defamation in IPC
Section 499 constrain of three essential elements for defamation under IPC
1. An allegation or imputation is made to harm the person against whom it is made
2. Such allegations or imputations must be made by In oral or in written or by words Sign or
Visible representation
3. Publishing such allegations
Exceptions of defamation:
Under sec 499 of IPC there are some exceptions under defamation
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1. Imputation of truth which public good requires to be made or published. It is not

considered as a defamation where anything which is true regarding to a person, if the
imputation is published for the public good. Here the question of fact arises whether it is
for public good or not.
2. Public conduct of public servants. It is not said to be defamation when expressed any
option in good faith whatever respecting the conduct of a public servant in discharge of
his public functions, or regarding his character.
3. Conduct of any person touching any public question. The conduct of any person
touching any public question, and regarding his character, so far as his character appears
in that conduct, and no further, is not defamation to express in good faith.
4. Publication of Reports of Proceedings of Courts: Publishing a substantially authentic
report of the proceedings of any Court of Justice or result of any such proceedings does
not amount to defamation.
The defences in IPC come to the aid of the alleged accused. Also, the burden of proof in criminal
law is high, so, along with the defences, it is harder to prosecute people under criminal law. These
requirements are relaxed for tort law.
Q4. (a) “Consumer Protection Council also play a very important role in consumer
protection.” Examine the statement and elaborate the objects, composition and functions
of the Central, State and District Consumer Councils.
APPROACH
BODY Discuss object of the act, rights provided and roles of councils
CONCLUSION Conclude with impact of councils
Consumer Protection Act provides Consumer Rights to prevent consumers from fraud or specified
unfair practices. These rights ensure that consumers can make better choices in the marketplace
and get help with complaints.
Rationale: With the rising power of corporation, consumers need to be protected. However, going
to Court is not a remedy for everyone. Hence, the Council can approach courts on behalf of
citizens.
OBJECTIVES OF CONSUMER PROTECTION ACT
1. Right to Safety :
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• Meaning: Consumers has the right to be protected against products and services which
are hazardous to health, life and property.
• The requirement from products and services: Quality, Quantity, Reliability and
Performance should be assured in the products and services provided by sellers.
• Example: Electrical appliances without ISI mark may cause serious injuries. While
offering iron into the market, the uses of iron should be mentioned with that product.
2. Right to Get Information: This is an act to give for setting out the practical management of
Right to information for citizens to acquire the data under control of public jurisdictions, in order
to develop clarity and responsibility in the working of every public authority, the organisation of a
central information Commission and State Information.
3. Right to Choose: The meaning of Right to Choose as per the Consumer Protection Act 1986
is ‘the right to be assured, wherever possible, to have access to a variety of goods and services
at competitive prices’.
4. Right to be Heard: This right says that the complaints of customers should be understood by
the seller. And it also allows them to be heard before the sessions and consumer panels. Right
to be heard is one of the rights granted to consumers by the consumer protection act.
5. Right to Seek redressal: Right to seek redressal against illegal trade systems or unfair
exploitation of consumers. It also involves the right to a reasonable settlement of the legitimate
complaints of the consumer. They should be well aware of their rights and must execute them.
6. Right to Consumer Education: The right to obtain the knowledge and skill to be an acquainted
consumer throughout life. Ignorance of consumers, especially of rural consumers, is chiefly
accountable for their exploitation. They should be well aware of their rights and must execute
them.
Consumer Protection Councils: Chapter II of Consumer Protection Act 2019 provides for
composition of Consumer Protection Councils at central, state and district level by the respective
governments in order to promote and protect the interest of Consumers.
Central Consumer Protection Councils is constituted by central government at National level.

Sections 3, 4 and 5 of the Act deals with composition and object of Central Consumer Protection
Council.
Composition
Section 3 provides for the setting up of the Council. (2) The Central Council shall be an advisory
council and consist of the following members, namely:— (a) The Minister-in-charge of the
Department of Consumer Affairs in the Central Government, who shall be the Chairperson; and
(b) Such number of other official or non-official members representing such interests as may be
prescribed. Consumer Protection Rules-1987 provides the members for Central Consumer
Protection Councils. The term of the Council shall be three years.
Functioning
For the purpose of monitoring the implementation of the recommendations of the Central Council
and to suggest the working of the Council, the Central Government may constitute from amongst
the members of the Council, a Standing Working Group, under the chairmanship of the Member
Secretary of the Council. The Standing Working Group shall consist of not exceeding 30 members
and shall meet as and when considered necessary by the Central Government.
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Objective
Section 5 of Consumer Protection Act 2019 deals with the objective of the Central Protection
Council. It provides: The objects of the Central Council shall be to render advice on promotion
and protection of the consumers' rights under this Act and to promote and protect the rights of the
consumers
The National Commission in the case of Distt. Manager, Telephones v. Dr. Tarun Bharthari
(1991) has held that the consumer forum can grant reliefs which are even not prayed for by the
complainant.
State Consumer Protection Council

Section 6 and section 7 of Consumer Protection Act 2019 deals with composition and objective
of State Consumer Protection Council and may meet as and when necessary but not less than
two meetings shall be held every year.
Section 7 deals with objective of State Consumer Protection Council which provides: The objects
of every State Council shall be to render advice on promotion and protection of consumer rights
under this Act within the State. In other words the objective of State Consumer Protection Council
shall be same as that of Central Consumer Protection Council.
District Consumer Protection Council

Section 8(1) and (2) deals with composition of District Consumer Protection Council. It provides:
Section 8 (1) The State Government shall, by notification, establish for every District with effect
from such date as it may specify in such notification, a District Consumer Protection Council to be
known as the District Council. (2) The District Council shall be an advisory council and consist of
the following members, namely:— (a) The Collector of the district (by whatever name called), who
shall be the Chairperson; and (b) Such number of other official and non-official members
representing such interests as may be prescribed.
Section 9 of the Act deals with the Objective of District Consumer Protection Council which shall
be same as that of Central Consumer Protection Council.
Critical Analysis
The Central Council is specially saddled with certain duties to protect and promote the interest of
the consumers. But the significant drawback in the legislation is the toothlessness of the Central
as well as the State Council. The resolutions of the Council are only of recommendatory nature.
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Q4 (b) “In order to constitute criminal attempt, the act caused must be proximate to the
intended result.” Explain the observation with the help of decided case law.
APPROACH
BODY Discuss all the tests for proximity
CONCLUSION Conclude with challenges
Section 511 of IPC, in India Defines Attempt. The intention coupled with some overt act to achieve
that intention amounts to crime as it is an attempt to commit a crime. An attempt is thus known
as preliminary crime or inchoate crime since it is an incomplete act. Thus, even if the crime is not
committed successfully, the mere attempt to do so will amount to crime too.
Eg: If a person buys a gun and keeps it ready and loaded, with the intention to use it on a particular
person, but no overt act is committed against that person, then it is at the preparation stage and
is still not punishable. But if he tries to shoot or use the weapon by his overt act or if is caught
arrested with a loaded gun or pistol before he is able to conclude the attack or if the attack or the
attempt is unsuccessful, then he has committed the offence of attempting to murder.
Essentials of the Attempt:

1. there must be “an intention to commit a crime”
2. Act so done must be “in furtherance of that intention” or “towards the accomplishment
of that crime”
3. The act must be “an incomplete work” or “fall short of a completed crime”
Hence, if the above ingredients are fulfilled, it is evident that the act done was an attempt to
commit a specific crime or crimes and is held to be punishable.
Tests to determine Attempt:

There are various tests to determine what constitutes an attempt to commit a crime and they are
applied depending on the facts of each case.
Proximity Test
The proximity rule is embodied in the Latin maxim cogitationis poenam nemo patitus which means
that no man can be punished for his guilty purposes, except so far as they have manifested
themselves to proclaim his guilt. The proximity test postulates the defendant’s progress by
determining how close the defendant is to completing the offense.
For instance, A shoots at B intending to kill him but misses the mark for want of skill or any other
defect in the gun and the like. There A would be liable for attempt where A points a gun at B and
proceeds to pull the trigger in order to shoot him dead, but it turns out that the gun was not loaded,
A would be liable for attempt because he has done everything in his hand towards the commission
of the offence.
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An act of the accused is considered proximate, if, though it is not the last act which he intended
to do, is the last act that was legally necessary for him to do, if the contemplated result is
afterwards brought about without further conduct on his part. Since the probable wrongdoer could
change his mind at any point before the crime is committed; the state should wait until the last
possible minute to ensure that the intention is going to be realized.
The rule is a mixture of principles laid down in a number of decided cases.

Factors:
1. The gravity of the offence intended
2. the nearness of the act to completion of the crime
3. The probability that the conduct will result in the offence.
In Sudhir Kumar Mukherjee case and Abhayananda Mishra case, the Supreme Court
explained the offence of attempt with the help of the proximity test, saying that a person commits
the offence of “attempt to commit a particular offence‟ when a) He intends to commit that particular
offence; and b) He having made preparation with the intention to commit the offence, does an act
towards its commission; such an act need no to be the penultimate act towards the commission
of that offence but must be an act during the course of committing that offence.
Res Ipsa Loquitur Test

Res ipsa loquitur means “the thing speaks for itself”. The res ipsa loquitur test, also known as the
unequivocality test. It is applied depending on the facts of each case independently. To constitute
an attempt the act must be such as to clearly and unequivocally indicate the intention to commit
the offence. The act must be referred to the commission of the crime and it must be evident and
clear on examination.
Probable Desistance Test

The probable desistance test examines how far the defendant has progressed toward commission
of the crime, rather than analyzing how much the defendant has left to accomplish. Pursuant to
this test, a defendant commits an attempt when he or she has crossed a line beyond which it is
probable he or she will not desist unless there is an interruption from some outside source, law
enforcement, or circumstances beyond his or her control.
Social Danger Test

In order to distinguish criminal attempt from preparation the following two factors are contributed:
a) The seriousness of the crime attempted
b) The apprehension of the social danger involved.
In this test the accused’s conduct is not examined only partially but the consequences of the
circumstances and the fullness of the facts are taken into consideration.
Eg: A administers some pills to a pregnant woman in order to procure abortion. However, since
the pills are innocuous they do not produce the result.
In Asgarali Pradhania v. Emperor the appellant was convicted under Section 312/511 of the
Indian Penal Code of an attempt to cause miscarriage. The complainant was a divorced woman
who came to be impregnated by the appellant on the promise that he would marry her. He was
married with children. He wanted to cause miscarriage and tried to administer a liquid for it. On
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her making noise her father and others came and the appellant fled. On investigation it was found
that he was trying to administer was copper sulphate in less quantity than was sufficient for
causing miscarriage. But he was trying to do a very dangerous act although the quantity was
insufficient. The accused had done the act which was sufficient to create alarm in the society.
Conclusion
The various theories are resorted to depending upon the facts and circumstances of each case.
Thus, it is very difficult to determine in which case which theory will apply. Thus, it is seen as a
frustrating attempt.
Q4 (c) Explaining the concept of ‘no liability’, mention the Indian Acts in which this concept
has been incorporated.
APPROACH
BODY Discuss various laws and defences under them.
CONCLUSION Conclude with requirement of ‘no liability’
No Liability
No liability or Exception to Liability means any provision of this Code stipulating a modification or
refinement of a single offense or a related group of offenses, other than a defense or a general
defense provision. An exception to liability negates potential liability for an offense.
Such exceptions or defences are provided in various legislations.
Tort Law
General defences are a set of ‘excuses’ that you can undertake to escape liability. In order to
escape liability in the case where the plaintiff brings an action against the defendant for a particular
tort providing the existence of all the essentials of that tort, the defendant would be liable for the
same.
The defences available are given as follows:
• Volenti non fit injuria or the defense of ‘Consent’
• The wrongdoer is the plaintiff
• Inevitable accident
• Act of god
• Private defense
• Mistake
• Necessity
• Statutory authority
Indian Penal Code, 1860

Chapter IV of the Indian Penal Code deals with the general exceptions to criminal liability. There
are various kinds of acts (exceptions) done under the circumstances mentioned in Secs. 76 to
106 which will not amount to offences under the Code.
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These exceptions are:

1. Mistake of fact (Secs. 76, 79).
2. Judicial acts (Secs. 77-78).
3. Accident (Sec. 80).
4. Absence of criminal intention (Secs. 81-86, 92-94).
5. Act done by consent (Secs. 87-91).
6. Trifling act (Sec. 95).
7. Private defence (Secs. 96-106).
Indian Contract Act, 1872

As per the Indian Contract Act, 1872 all persons who do not meet the criteria as per Sec. 11 of
the act are incompetent to contract. Hence, minors do not have liability for agreements they enter
into.
Patent Act, 1970

The research or experimental use exemption permits researchers and product manufacturers to
make certain use of a patented invention. The general idea behind this exemption is that it sets
boundaries to patent holder rights such that the patent holder cannot prevent third parties from
undertaking certain activities with respect to the patented invention. Section 107A provides for
certain acts not to be considered as infringement.
Information Technology Act, 2000

Under the IT Act, as originally enacted, only the network service providers were granted protection
from liability for illegal acts of third parties. But after the Amendment Act of 2008, the definition of
the intermediary under the Act and Section 79 of the Act were amended to provide for a wider
scope of protection to intermediaries.
Section 79(1) provides for exemption from liability of an intermediary for any third party
information, data, or communication link made available or hosted by him. However, this shall be
subject to provisions of sub-section (2) and sub-section (3) of Section 79.
Conclusion
Hence, various laws provide for ‘no liability’ in situations where harm/ injury is actually not done
by the entity. This is essential to account for since the purpose of law is to hold those liable who
intentionally commit an actionable wrong.
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Law optional De Facto IAS PYQ Answer

UPSC 2017 Law Optional Paper Solution

INTRODUCTION Introduce concept of mistake and rationale

BODY Discuss good faith under IPC & mistake of fact

CONCLUSION Conclude with essential elements

Section 76: Mistake of Fact

Mistake of Fact v. Mistake of Law

Essential Elements of Defence of Mistake

Q1 (b) In all robbery, there is either theft or extortion. Explain.

INTRODUCTION Introduce concept of robbery

Discuss essential ingredients of robbery

CONCLUSION Conclusion with the nature of offence robbery is.

Section 390. Robbery.—In all robbery there is either theft or extortion.

When Theft is Robbery

When Extortion is Robbery

Ingredients: The essential ingredients of Robbery are:

• There must have been commission of theft as defined in Section 378;

Robbery under this Section is cognizable, non-bailable, non-compoundable, and triable by

INTRODUCTION Introduce concept and meaning

BODY Discuss historical context and essential elements

CONCLUSION Conclude with its connection with the law of tort.

INTRODUCTION Introduce concept

BODY Discuss essential elements, types, limitation

CONCLUSION Conclude with importance of doctrine of necessity

Tort Law: Defence of Necessity

1. Private Necessity: Private necessity usually involves trespassing or interfering with

Limitations to Defence of Necessity

INTRODUCTION Introduce concept and constitution

BODY Discuss preamble, provisions and salient features

CONCLUSION Conclude with importance in contemporary India

Constitution & Abolition of Untouchability

INTRODUCTION Introduce concept

CONCLUSION Conclude with summarising the key elements

Section 34: Common Intention

Essentials to Establish Section 34

Common Intention v. Same Intention

Common Intention v. Common Object

INTRODUCTION Introduce the chapter

CONCLUSION Conclude with Supreme Court pronouncement.

Section 354 provides that: -

Change in Section 509

Outraging the modesty of women (Section 354)

INTRODUCTION Introduce concept historically

BODY Discuss essentials of negligence, and the exception of absolute liability

CONCLUSION Generic Conclusion

The suit was defended on the following two grounds:

Absolute Liability: If an industry or enterprise is engaged in some inherently dangerous activity

Hence, despite reasonable care, one can be held absolutely liable.

INTRODUCTION Introduce concept

CONCLUSION Conclude with judicial observation

Section 299 Section 300

Intention (1) Intent to cause death (1) Intent to cause death

IPC recognizes 3 degrees of culpable homicide: based on the mental element.

is provided for in section 302.

Difference in Degree of Probability

INTRODUCTION Introduce concept

BODY Discuss the rationale, constituent elements

The common examples of such a liability are:

Constituents Of Vicarious Liability

No liability of Employer if action not done in ‘Course of Employment’

No liability if not a ‘Servant’?

INTRODUCTION Introduce concept