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Concepts of Crime and Arrest
ARVIND NATH TRIPATHI
DSNLU
What is a crime?
Essential constituents of a crime are:
• An act or omission forbidden or commanded
by law.
• Violation prevented by sanction of
punishment.
• Wrong doer punished only after following a
procedure established by law.
The Indian Penal Code (IPC),1860 and
The Code of Criminal Procedure,1973.
1. The Indian Penal Code (IPC),1860 – Define offences and prescribe
amount of punishment.
2. The Code of Criminal Procedure,1973.
3. The Indian Evidence Act,1872.
Essential elements of crime
• ‘Actus non facit reum nisi mens sit rea’
‘There can be no crime without a guilty
mind’.
• Two components of a crime are:
(i) Actus Reus (Guilty Act)-Physical element
(ii) Mens rea (Guilty Mind)-Mental element.
Actus Reus
Actus Reus is made up of three elements.
(i) Human action i.e., conduct.
(ii) Result of the conduct i.e., injury.
(iii) Such act is prohibited by law.
Mensrea- (mental condition)
Different forms of mensrea are:
– Intention (desire to bring about certain consequences
or desire to do an act.)
– Knowledge (awareness of the consequences.).
– Negligence (want of care and protection which a
reasonable man would have taken under the particular
circumstances.)
– Exception-Rape, certain economic offences, war
against state etc.
Stages of Crime
• There are four stages in the commission of an
offence.
(i) Intention
(ii) Preparation
(iii) Attempt
(iv) Actual commission of the offence.
INTENTION AND PREPARATION
• Intention – Emergence of an evil intention in the mind of the
accused.
(This stage is not punishable, because it cannot be
proved)
• Preparation – Arranging or devising means or measures
necessary for the commission of an offence.
(Not punished unless provided by the penal law).
Example- Preparation to commit dacoity (section 399 IPC).
ATTEMPT
Attempt
• doing an act
• towards the commission of an offence and
• if the attempt had succeeded,
• the offence charged would have been
committed.
INVESTIGATION
ARREST
TRIAL
CONVICTION OR ACQUITTAL
FIR OR COMPlAINT
CASE
A proceedings for prosecution of a person
alleged to have committed an offence.
The proceeding at the end must result in
conviction or acquittal.
COMPLAINT ,SECTION 2(D)
• Any allegation made orally or in writing to a
Magistrate
• With a view to taking action under this Code
• Some person(known or unknown) has
committed an offence
• Does not include a police report
CLASSIFICATION OF OFFENCES
• Cognizable and non-cognizable offences.
• Bailable and non-bailable offences.
• Compoundable and non-compoundable
offences.
• Warrant cases and Summon cases.
COGNIZABLE OFFENCE
An offence for which a police officer
• May arrest without warrant and
• Can investigate without any order or direction
of a Magistrate.
NON-COGNIZABLE OFFENCE
An offence for which there can be
• No arrest without warrant and
• No investigation without the orders of the
Magistrate.
BAILABLE OFFENCE
An offence wherein bail is granted as a matter of
right by police officer or by court.
NON-BAILABLE OFFENCE
An offence wherein bail is granted at the
discretion of the court or the authorities
concerned.
COMPOUNDABLE OFFENCE
• An offence wherein the accused
• enters into an agreement
• with the victim of the offence
• to pay some gratification or consideration for
not prosecuting the accused.
NON-COMPOUNDABLE OFFENCE
An offence which cannot be compounded.
WARRANT CASE
• A case relating to an offence punishable with
– death,
– imprisonment for life or
– imprisonment for a term exceeding two years.
SUMMONS CASE
A case relating to an offence which is not a
warrant case
INVESTIGATION
SECTION 2(h)
Includes all the proceedings under the Code
• for collection of evidence
• conducted by a police officer
• or by any person (other than a Magistrate) who
is authorized by a Magistrate in this behalf.
INVESTIGATION
SECTION 2(h)
• Investigation of an offence as generally consisting
of-
• 1.Proceeding to the spot;
• 2.Ascertainment of the facts an circumstances
of the of the case;
• 3.Discovery and arrest of the suspected offender;
• 4.Collection of evidence relating to the commission
of the offence which may consist of search and
seizure .
INQUIRY
• Every inquiry other than trial conducted by a
Magistrate or Court.
• It is never conducted by police.
• It aims at determining the truth or falsity of
certain facts.
• It is a judicial proceeding and oath can be
administered to the persons to be examined in
the course of an inquiry.
Differences between investigation and inquiry
• Investigation done by police or some person
authorized by Magistrate but Inquiry is made
by Magistrate or Court.
• Object of investigation is to collect evidence
and in the case of Inquiry is to determine the
truth or falsity of certain fact.
• Investigation is not a judicial proceeding but
Inquiry is a judicial proceeding.
TRIAL
• The judicial process
• in accordance with law
• whereby the question of guilt or innocence of
the person accused of an offence is
determined.
ARREST
• The restraining of the liberty of man’s person or
• Arrest means apprehension of a person by legal
authority resulting in deprivation of his liberty.
• In order to
– compel obedience to the order of a court or
– prevent the commission of a crime or
– ensure that the person charged or suspected of a crime may be
forthcoming to answer it.
Arrest is when one is taken and restrained from his
liberty.
Case Laws-D.K.Basu vs.State of West Bengal(1997)1SCC416.
ARREST
• Arrest with warrant
– In case of non-cognizable offences
• Arrest without warrant
– In case of cognizable offences
– If non-cognizable offence is committed in the
presence of police officer and the accused
refuses to give his name and address
– In case of designing to commit a cognizable
offence which cannot be otherwise prevented
POWERS FOR MAKING ARREST
• Power to use reasonable force
• Power to search for the accused
• Power to obtain the assistance of any person
• Power to direct a subordinate officer to effect the
arrest
• Power to re-arrest a person who has escaped from
custody.
AFTER-ARREST PROCEDURE
• Give Information regarding arrest and place of arrest to the
person nominated by the arrested person
• Search the arrested person and place articles found upon
him in safe custody after preparing a recovery memo
• Seize weapons if any and forward it to court
• Cause medical examination of the arrested person if
necessary
• Send a report of the arrest to the District Magistrate
• Not release the arrested person
– except on bail or on orders of Magistrate.
RIGHTS OF ARRESTED PERSON
• Right to know the ground of arrest-Sec.50(1)
• Right to be taken before a Magistrate without delay-
Sec.76.
• Person arrested not to be detained more than 24 hours-
(sec.57).
• Right to consult a legal practitioner.Sec 303.
• Information regarding arrest and place of arrest to be
given to one of his friends, relatives or other person
• Information regarding right to be released on bail-
Sec.50(2).
Constitution of India
• Article 22 of Constitution of India deals with
Protection against arrest and detention in
certain cases.
• (1) No person who is arrested shall be detained in
custody without being informed, as soon as may
be, of the grounds for such arrest nor shall he be
denied the right to consult, and to be defended
by, a legal practitioner of his choice.
Constitution of India
• (2) Every person who is arrested and detained
in custody shall be produced before the
nearest magistrate within a period of twenty-
four hours of such arrest excluding the time
necessary for the journey from the place of
arrest to the court of the magistrate and no
such person shall be detained in custody
beyond the said period without the authority
of a magistrate.
• ARVIND NATH TRIPATHI
• DSNLU
• Email-arvind.nath.tripathi@gmail.com
• CELL NO-08688665173 (24 hour help Line
Number)
ARREST OF PERSONS -1
• Section.41. When police may arrest without warrant
• (a) who has been concerned in any cognizable offence, or
against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable
suspicion exists, of his having been so concerned; or
• (b) in whose possession anything is found which may
reasonably be suspected to be stolen property and who may
reasonably be suspected of having committed an offence
with reference to such thing; or
• (c) who obstructs a police officer while in the execution of
his duty, or who has escaped, or attempts to escape, from
lawful custody; or
41-A.Notice of appearance before
police officer-
The police officer may ,is all cases where the arrest of a
person is not required under the provisions of sub-section
(1) of section 41,issue a notice directing the person against
whom a reasonable complaint has been made or credible
information has been received or a reasonable suspicion
exists that he has committed a cognizable offence to
appear before him or at such other place as may be
specified in the notice .
SECTION 41(B)AND (C) .
• 41-B.Procedure of arrest and duties of officer making arrest.- Every police
officer while
• making an arrest shall -
• (a) bear an accurate ,visible and clear identification of his name which will
facilitate easy
• identification ;
• (b) prepare a memorandum of arrest which shall be -
• (i) attested by at least one witness, who is a member of the family of the
person arrested or
• a respectable member of the locality where the arrest is made ;
• (ii) Countersigned by the person arrested : and
• (c) inform the person arrested ,unless the memorandum is attested by a
member of his
• family, that he has a right to have a relative or a friend named by him to be
informed of
• his arrest.
• 41-C. Control room at districts.
ARREST OF PERSONS-2
• (d) for whose arrest any requisition, whether
written or oral, has been received from another
police officer, provided that the requisition specifies
the person to be arrested and the offence or other
cause for which the arrest is to be made and it
appears there from that the person might lawfully
be arrested without a warrant by the officer who
issued the requisition.
ARREST OF PERSONS-3
• Section-42-Arrest on refusal to give name and residence.
• Section-46-Arrest how made.
Section-43. Arrest by private person and procedure on such arrest.-
non-bailable and cognizable offence
Section-44. Arrest by Magistrate
• Section-43. Arrest by private person and procedure on such arrest.-
• non-bailable and cognizable offence
• Section-44. Arrest by Magistrate
How to make an arrest (Sec. 46)
• No woman shall be arrested after sunset and
before sunrise and where such exceptional
circumstances exist, the woman police officer
shall, by mailing a written report, obtain the
prior permission of the Judicial Magistrate of
the First Class within whose local jurisdiction
the offence is committed or the arrest is to be
made.
PROCEDURE FOR ARREST
• The word ‘arrest’, when used in its ordinary and natural
sense, means the apprehension or restraint or the
deprivation of one’s personal liberty to go where he
pleases. When used in the legal sense in the procedure
connected with criminal offences, an arrest consists of
taking into custody of another person under authority
empowered by law, for the purpose of holding or detaining
him to answer a criminal charge and preventing the
commission of a criminal offence. An arrest, in most
circumstances, can only be made after obtaining the
necessary warrant. A warrant may be executed at any place
in India. Such offences wherein an arrest can be made only
after the necessary warrant has been issued are called non-
cognizable offences; while the ones wherein an arrest can
be made without a warrant are called cognizable offences.
PROCEDURE FOR ARREST
– Joginder Kumar v. State of Uttar Pradesh
(1994 AIR1349, 1994 SCC (4) 260)
The honorable Supreme Court of India raised similar
concerns and commented upon the same in the case of
Joginder Kumar v. State of Uttar Pradesh in the following
words,
“The horizon of human rights is expanding. At the same,
the crime rate is also increasing… The law of arrest is one of
balancing individual rights, liberties and privileges on one
hand, and individual duties, obligations and responsibilities on
the other; of weighing and balancing the right, liberties and
privileges of the single individual and those of individuals
collectively; of simply deciding what is wanted and where to
put the weight and the emphasis of deciding which comes first
– the criminal or the society, the law violator or the law
abiders…”
SEARCH
• In criminal law, search means examination of a
person’s body, property or other area which
the person would reasonably be expected to
consider as private by a law enforcement
officer for finding evidence of a crime.
SEARCH
WITH
WARRANT
WITHOUT
WARRANT
SEC 94 -SEARCH OF PLACE
SUSPECTED TO CONTAIN STOLEN
PROPERTY, FORGED DOCUMENTS,
ETC .AND SEC97-PERSON
WRONGFULLY CONFINED.
SEARCH BY POLIC OFFICER DURING
INVESTIGATION OR MAGISTRATE
MAY DIRECT SEARCH IN HIS
PRESENCE.
Search of a person (Woman in particular)
[Sec. 51(2)]
(2) “Whenever it is necessary to cause a female to be
searched, the search shall be made by another female with
strict regard to decency”
• Sub-section 2 provides that whenever necessary, a female
must be searched by another female only. Further emphasis
on ‘decency’ again reflects the outlook of the legislature and
how it intends to make the criminal procedure more
comfortable and assured for women.
• Similar emphasis can also been seen when a woman is
to be searched by a police officer or a person, under a
warrant, on being reasonably suspected of concealing about
his person any article for which search should be made. Sec.
100 (3) again provides that such a search must be made by a
woman only, with strict regard to decency.
FIR(SECTION 154)
• FIR is not define in the Code of Criminal
Procedure,1973
• It is an information which is given to the police
office;
• Information must related to cognizable offence;
• It is an information first in point of time;
• It is on the basis of this information that
investigation into the offence commences.
REMAND
• Remand to be granted in cases of real necessity-
• Ordinarily when an investigation is incomplete the
proper course is for the accused person to be sent up
promptly with such evidence as has been obtained and
for the trial to be commenced at once by the
Magistrate and proceeded with, as far as possible and
then adjourned for further evidence. In the opinion of
the High Court a remand to Police custody ought only
to be granted in cases of real necessity and when it is
shown in the application that there is good reason to
believe that the accused can point out properly or
otherwise assist the Police in elucidating the case.
ANTICIPATORYA BAIL(SEC.438)
• Bail in anticipation of arrest
• Extraordinary in character and given only in
exceptional cases
• It appears that a person might be falsely implicated,
or frivolous case might be launched against him
• Requirement -(a)Reason to believe (b)arrest must
be in respect of a non-bailable offence;
• By High court or Session Court
• Subject to certain terms and condition
Preventive Detention
• Preventive detention is an action taken on grounds of
suspicion that some wrong actions may be done by
the person concerned.
• Preventive detention can however be made only on
four grounds. The grounds for Preventive detention
are—
• security of the state,
• maintenance of public order,
• maintenance of supplies and essential services and
defence,
• foreign affair.
EVIDENCE
• The word ,evidence is derived from the Latin word
evidens or evidere, which means “ to show clearly; to
make clear to the sight; to discover clearly; to make
plainly certain; to ascertain; to prove”.
• The main principle which underlie the law of evidence
are-
• (1) evidence must be confined to the matter in issue;
• (2) hearsay evidence must not be admitted; and
• (3) best evidence must be given in all cases.
• The law of evidence is part of the law of procedure,
i.e. the procedure court has to follow.
• The law of evidence is the same in civil and criminal
proceedings
Evidence
• "Evidence" means and includes--
• (1) all statements which the Court permits or requires
to be made before it by witnesses, in relation to
matters of fact under inquiry; such statements are
called oral evidence;
• (2) all documents produced for the inspection of the
Court; such documents are called documentary
evidence.
FACT
• “Fact” - “Fact” means and includes: —
•
• (1) Anything, state of things, or relation of things, capable of being perceived by the senses;
•
• (2) Any mental conditions of which any person is conscious.
•
• Illustrations
•
• (a) That there are certain objects arranged in a certain order in a certain place, is a fact.
•
• (b) That a man heard or saw something is a fact.
• (c) That a man said certain words is a fact.
• (d) That a man holds a certain opinion, has a certain intention, acts in good faith of fraudulently, or uses a
particular word in a particular sense, or is or was at specified time conscious of a particular sensation, is a fact.
•
• (e) That a man has a certain reputation is a fact.
The Juvenile Justice (Care and
Protection of Children) Act, 2000.
The primary legal framework for juvenile justice in
India. The Act provides for a special approach
towards the prevention and treatment of juvenile
delinquency and provides a framework for the
protection, treatment and rehabilitation of children
in the purview of the juvenile justice system. This
law, brought in compliance of the 1989 UN
Convention on the Rights of the Child (UNCRC).
Causes
•broken homes (family)
•poor housing conditions
•friends’ influence
•exclusion
•violence on TV, radio and
Internet
Ad hoc
• ad hoc
"for this purpose only." Thus, an ad hoc committee
is formed for a specific purpose, usually appointed
to solve a particular problem. Example: An ad hoc
attorney is one hired to handle one problem only
and often is a specialist in a particular area or
considered especially able to argue a key point.
Amicus curiae
• Literally means "friend of the court“.
• An impartial adviser to a court of law in a particular
case.
Alibi
• Claim or piece of evidence that one was
elsewhere when an act, typically a criminal
one, is alleged to have taken place.
• A form of defense whereby a defendant
attempts to prove that he or she was
elsewhere when the crime in question was
committed.
Alibi
• Alibi is the defines taken by the accused
• It means that he was physically not present at
the time of scene of offence by reason of his
presence at another place.
• defence of alibi is not generally accepted
unless backed by strong and solid evidence.
• In Jayantibhai Bhenkarbhai v. State of Gujarat,
(2002) 8 SCC 165.
Ad Valorem
• Ad Valorem-According to value. The term ad
valorem is derived from the Latin ad
valentiam, meaning "to the value."
Arbitration
• Arbitration is a proceeding in which a dispute
is resolved by an impartial adjudicator whose
decision the parties to the dispute have
agreed, or legislation has decreed, will be final
and binding.
Cohabitation
• Cohabitation is generally defined as two
people living together as if a married couple.
• The Court ordered dissolution of a marriage
by decree of divorce on the ground of non-
cohabitation of the parties
BIGAMY
• Second marriage during the subsistence of the
first marriage is illegal in India and the
relationship arising from the same does not have
any validity.
• One of the conditions for a valid marriage under
Section 5 of the Hindu Marriage Act, 1955 is that
neither of the party should have a spouse living
at the time of the marriage. Under Section 11 of
the Act, second marriages can be declared null
and void.
BIGAMY
• Bigamy becomes an offence only if the husband
or wife is alive. It is an offence even if it is
performed with the consent of the first wife.
• It will not apply,
• if the husband or wife of the first marriage is
dead or
• if the first marriage has been dissolved by a
decree of divorce or the former marriage is void
or declared void by a decree of nullity
Documentary evidence:
Documentary evidence is defined in the Act as:
All documents produced for the inspection of the
court. The purpose of producing document, is to
rely upon the truth of the statement contained
therein .This involves, When the document
produced in the court, the examination of three
questions: (i) is the document genuine, (ii) what
are its contents, and (iii) are the statement in the
document true?
THE PROBATION OF OFFENDERS ACT,
1958
Offence punishable with imprisonment for not more
than two years, or with fine, or with both, under the
Indian Penal Code, or any other law, and no previous
conviction is proved against him and the court by
which the person is found guilty is of opinion that,
having regard to the circumstances of the case
including the nature of the offence, and the character
of the offender, it is expedient so to do, then,
notwithstanding anything contained in any other law
for the time being in force, the court may, instead of
sentencing him to any punishment or releasing him on
probation .
Difference between parole and
probation
• Parole is supervision that begins after a
person's release from prison or jail after
serving part of a sentence. Parole is a
privilege, not a right.
• Probation is a sentence that a judge can give
instead of jail or in addition to jail or prison
time.
Bona Fide
• Authentic,genuine,real and true.
• without intention to deceive.
• The court will assume that they have acted
bona fide.
Onus probandi
• Section 101 in The Indian Evidence Act, 1872
• Burden of proof.—Whoever desires any Court to give
judgment as to any legal right or liability dependent on the
existence of facts which he asserts, must prove that those
facts exist.
• When a person to prove the existence of any fact, it is said
that the burden of proof lies on that person.
• Illustrations (a) A desires a Court to give judgment that B
shall be punished for a crime which A says B has
committed. A must prove that B has committed the crime.
• Actori incumbit onus probandi - The burden of proof lies
on the plaintiff.
Exceptions
•
Exception 1 - The general rule in criminal cases is
that the accused is presumed innocent. It is the
prosecution who is required to establish the guilt of
the accused without any doubt. At the same time,
the accused is not required to prove his innocence
without any doubt but only has to create reasonable
doubt that he may not be guilty.
• Section 105- Specifies an exception to this general
rule. When an accused claims the benefit of the
General Exception clauses of IPC, the burden of
proving that he is entitled to such benefit is upon
him. For example, if an accused claims the benefit of
insanity in a murder trial, it is up to the accused to
prove that he was insane at the time of committing
the crime.
• Exception 3 - Presumptions - Court presumes the existence of
certain things. For example
• Section 113B, when the question is whether a person has
committed the dowry death of a woman and it is shown that
soon before her death such woman had been subjected by
such person to cruelty or harassment for, or in connection with,
any demand for dowry, the court shall presume that such
person had caused the dowry death. law presumes the
legitimacy of children born in wedlock. It is the duty of person
denying legitimacy to prove the allegation.
• Law presumes the legitimacy of children born in wedlock. It is
the duty of person denying legitimacy to prove the allegation.
Exceptions
Actus personalis moritur cum persona
• A personal action dies with the person.
Punishments
• Infliction of pain or unpleasant consequences
• Prescribed by law
• Administered in accordance with procedure
• By the State
• Two dimensions to punishment:
– Purposes that justify the punishment
– Proportionality of the nature and quantum of punishment
in relation to the nature and seriousness of the crime
• Retribution - to gratify the instinct of revenge or
retaliation, which exists not merely in the
individual wronged, but also in the society at
large. Retribute means to give in return. The
objective of the theory is to make the offender
realise the suffering or the pain. Majority or
Jurists, Criminologists, Penologists and
Sociologists do not support this theory as they
feel it is brutal and barbaric.
• Deterrence- to prevent the wrong doer from
doing a wrong the second time and also to make
him an example to other persons, who have
criminal tendencies.
• 'Deter' means to abstain from doing at act. The
main objective of this theory is to deter
(prevent) crimes. It serves a warning to the
offender not to repeat the crime in the future
and also to other evil-minded persons in the
society. This theory is a workable one even
though it has a few defects.
• Preventive – to prevent the offender from
offending again in future by disabling him.
The idea behind this theory is to keep the
offender away from the society. Example-
imprisonment of life etc.
• Reformative – to reform the offender and by giving
some vocational training in art, craft or industry,
enabling him to lead a good life and become a
respectable citizen of society after release.
• objective is to reform the behavior of the criminals.
The idea behind this theory is that no one is born as a
Criminal. The criminal is a product of the social,
economic and environmental conditions. It is believed
that if the criminals are educated and trained, they
can be made competent to behave well in the society.
The Reformative theory is proved to be successful in
cases of young offenders.
• Death
• Imprisonment for life
• Imprisonment ,rigorous or simple
• Forfeiture of property
• Fine
Questions
Qus.1.What is the meaning and objective of the
Maxim-‘Ignorantia facit excusat, ignorantia
juris non excusat’?
Qus.2.What do you mean by ‘Doli-incapax’ ?Can
a person of 8 year be held liable for criminal
conspiracy?
What is BENCH?
• A seat of judgment or tribunal for the
administration of justice; the seat occupied
by judges in courts; also the court itself or
the aggregate of the judges composing a
court, as in the phrase “before the full
bench.”
(Black's Law Dictionary)
Full Bench - What is the meaning to
full bench in court language ?
• Full Bench in High Courts comprises of Three
or more Judges hearing a case and giving
independent judgment if their opinion differs
or collective judgment if their opinion agrees.
Recently such Full Bench Judgment was
delivered by Three Allahabad High Court
Judges in Ram Janma Boomi case.
Binding effect of Judgments
• As general rule a decision of Bench consisting of
larger number of Judges prevails over the decision
rendered by a Bench of lesser number of Judges. Even
in a case where there may be a later decision but a
decision rendered earlier on the point by a Bench
consisting larger number of Judges have the binding
effect. Reference to some decisions on the point may
useful be made: AIR 1974 S.C. 1596, Muttulal v.
Radhe's Lal, AIR '1976 SC 2433, Union of India and
another v,K.S. Subramanian, (1995) 1 SCC 58,
Commissioner Sales Tax J & K and Ors. v. Pine
Chemicals Ltd. & others.
Precedent
A principle of Jurisprudence or policy of Courts
by which
the Courts and Authorities
are required to follow
a rule of law
established previously in cases involving similar
issue.
Precedent
• An important feature of the administration of
justice is that 'like cases should be decided
alike', to avoid any kind of discrimination in
the matter of application of laws in similar
cases, though may be decided by different
Courts in any part of a State or the country. It
is possible only through binding judicial
pronouncements.
Precedent
• As a matter of public policy, it is also
important that there must be some degree of
certainty in the laws so that people may
conduct their affairs and plan their future
accordingly. In one of the decisions reported
In AIR 1968 Alld. 100, Ram Manohar Lohia
and others v. State of U.P. and others, it has
been observed that it is necessary to
maintain judicial uniformity and judicial
discipline. Precedents maintain judicial
uniformity .
Precedent
• The observation of Lord Denning as quoted in AIR
1985 S.C. 1585, Distributors v. Union of India, is: “The
doctrine of precedent does not compel your lordship
to follow the wrong path until you fall over the edge
the cliff." The gist of the matter seems to be that as
far as possible within a reasonable limits a view
which is coming down since long may be adhered to
in the interest of public of predictability and certainty
of law but as observed by the Supreme Court also it
cannot stretched beyond a limit of rigidity. An
obviously wrong Judgment against the law, cannot be
protected either by doctrine of binding precedents
nor stare decisis.
Persuasive Value
• So far decisions of High Courts are concerned,
they have binding effect within the State and
the decisions of the High Courts of other
States have on persuasive force. The High
Court while deciding a matter, if faced with
decisions of its own High Court of co-equal
number of Judges, taking irreconcilable view
on the point the proper course is to refer the
matter to larger Bench.
Stare decisis
A principle of
long recognition
becomes
‘stare decisis’
Ratio decidendi
It refers to
the rule of law
established
in a particular case.
Obiter dictum
It refers to the
incidental findings
of the Court on various legal
issues arising during the
arguments for arriving at the
final judgments.
Obiter dicta of the Supreme Court
• Obiter dicta of the Supreme Court is binding on all Courts.
This we find in AIR 1959 SC 814, The Commissioner of
Income Tax, Hyderabad,Deccan v. Mls Vazir Sultan and
sons, AIR 1975 S.C. 1087, Municipal Committee, Amritsar
v. Hazara Singh, AIR 1969 Allahabad 304 (FB), Chobey
Sunder Lal v.Sonu alias Sonpal and another, AIR 1989
Delhi 193(FB), D.C.M. Limited v. Union of India and others,
AIR 1960 Allahabad 672, Union of India v. Firm Ram Gopal
Hukum Chand and others, and AIR 1967 Rajas than 1,
Radha Kishan v. State of Rajasthan and others.
It has been observed that judicial uniformity and judicial
discipline require that courts must also follow the obiter
dicta of the Supreme Court.

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Concepts of crime by Prof. Arvind Nath Tripati [DSNLU]

  • 1. Concepts of Crime and Arrest ARVIND NATH TRIPATHI DSNLU
  • 2. What is a crime? Essential constituents of a crime are: • An act or omission forbidden or commanded by law. • Violation prevented by sanction of punishment. • Wrong doer punished only after following a procedure established by law.
  • 3. The Indian Penal Code (IPC),1860 and The Code of Criminal Procedure,1973. 1. The Indian Penal Code (IPC),1860 – Define offences and prescribe amount of punishment. 2. The Code of Criminal Procedure,1973. 3. The Indian Evidence Act,1872.
  • 4. Essential elements of crime • ‘Actus non facit reum nisi mens sit rea’ ‘There can be no crime without a guilty mind’. • Two components of a crime are: (i) Actus Reus (Guilty Act)-Physical element (ii) Mens rea (Guilty Mind)-Mental element.
  • 5. Actus Reus Actus Reus is made up of three elements. (i) Human action i.e., conduct. (ii) Result of the conduct i.e., injury. (iii) Such act is prohibited by law.
  • 6. Mensrea- (mental condition) Different forms of mensrea are: – Intention (desire to bring about certain consequences or desire to do an act.) – Knowledge (awareness of the consequences.). – Negligence (want of care and protection which a reasonable man would have taken under the particular circumstances.) – Exception-Rape, certain economic offences, war against state etc.
  • 7. Stages of Crime • There are four stages in the commission of an offence. (i) Intention (ii) Preparation (iii) Attempt (iv) Actual commission of the offence.
  • 8. INTENTION AND PREPARATION • Intention – Emergence of an evil intention in the mind of the accused. (This stage is not punishable, because it cannot be proved) • Preparation – Arranging or devising means or measures necessary for the commission of an offence. (Not punished unless provided by the penal law). Example- Preparation to commit dacoity (section 399 IPC).
  • 9. ATTEMPT Attempt • doing an act • towards the commission of an offence and • if the attempt had succeeded, • the offence charged would have been committed.
  • 11. CASE A proceedings for prosecution of a person alleged to have committed an offence. The proceeding at the end must result in conviction or acquittal.
  • 12. COMPLAINT ,SECTION 2(D) • Any allegation made orally or in writing to a Magistrate • With a view to taking action under this Code • Some person(known or unknown) has committed an offence • Does not include a police report
  • 13. CLASSIFICATION OF OFFENCES • Cognizable and non-cognizable offences. • Bailable and non-bailable offences. • Compoundable and non-compoundable offences. • Warrant cases and Summon cases.
  • 14. COGNIZABLE OFFENCE An offence for which a police officer • May arrest without warrant and • Can investigate without any order or direction of a Magistrate.
  • 15. NON-COGNIZABLE OFFENCE An offence for which there can be • No arrest without warrant and • No investigation without the orders of the Magistrate.
  • 16. BAILABLE OFFENCE An offence wherein bail is granted as a matter of right by police officer or by court. NON-BAILABLE OFFENCE An offence wherein bail is granted at the discretion of the court or the authorities concerned.
  • 17. COMPOUNDABLE OFFENCE • An offence wherein the accused • enters into an agreement • with the victim of the offence • to pay some gratification or consideration for not prosecuting the accused. NON-COMPOUNDABLE OFFENCE An offence which cannot be compounded.
  • 18. WARRANT CASE • A case relating to an offence punishable with – death, – imprisonment for life or – imprisonment for a term exceeding two years. SUMMONS CASE A case relating to an offence which is not a warrant case
  • 19. INVESTIGATION SECTION 2(h) Includes all the proceedings under the Code • for collection of evidence • conducted by a police officer • or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.
  • 20. INVESTIGATION SECTION 2(h) • Investigation of an offence as generally consisting of- • 1.Proceeding to the spot; • 2.Ascertainment of the facts an circumstances of the of the case; • 3.Discovery and arrest of the suspected offender; • 4.Collection of evidence relating to the commission of the offence which may consist of search and seizure .
  • 21. INQUIRY • Every inquiry other than trial conducted by a Magistrate or Court. • It is never conducted by police. • It aims at determining the truth or falsity of certain facts. • It is a judicial proceeding and oath can be administered to the persons to be examined in the course of an inquiry.
  • 22. Differences between investigation and inquiry • Investigation done by police or some person authorized by Magistrate but Inquiry is made by Magistrate or Court. • Object of investigation is to collect evidence and in the case of Inquiry is to determine the truth or falsity of certain fact. • Investigation is not a judicial proceeding but Inquiry is a judicial proceeding.
  • 23. TRIAL • The judicial process • in accordance with law • whereby the question of guilt or innocence of the person accused of an offence is determined.
  • 24. ARREST • The restraining of the liberty of man’s person or • Arrest means apprehension of a person by legal authority resulting in deprivation of his liberty. • In order to – compel obedience to the order of a court or – prevent the commission of a crime or – ensure that the person charged or suspected of a crime may be forthcoming to answer it. Arrest is when one is taken and restrained from his liberty. Case Laws-D.K.Basu vs.State of West Bengal(1997)1SCC416.
  • 25. ARREST • Arrest with warrant – In case of non-cognizable offences • Arrest without warrant – In case of cognizable offences – If non-cognizable offence is committed in the presence of police officer and the accused refuses to give his name and address – In case of designing to commit a cognizable offence which cannot be otherwise prevented
  • 26. POWERS FOR MAKING ARREST • Power to use reasonable force • Power to search for the accused • Power to obtain the assistance of any person • Power to direct a subordinate officer to effect the arrest • Power to re-arrest a person who has escaped from custody.
  • 27. AFTER-ARREST PROCEDURE • Give Information regarding arrest and place of arrest to the person nominated by the arrested person • Search the arrested person and place articles found upon him in safe custody after preparing a recovery memo • Seize weapons if any and forward it to court • Cause medical examination of the arrested person if necessary • Send a report of the arrest to the District Magistrate • Not release the arrested person – except on bail or on orders of Magistrate.
  • 28. RIGHTS OF ARRESTED PERSON • Right to know the ground of arrest-Sec.50(1) • Right to be taken before a Magistrate without delay- Sec.76. • Person arrested not to be detained more than 24 hours- (sec.57). • Right to consult a legal practitioner.Sec 303. • Information regarding arrest and place of arrest to be given to one of his friends, relatives or other person • Information regarding right to be released on bail- Sec.50(2).
  • 29. Constitution of India • Article 22 of Constitution of India deals with Protection against arrest and detention in certain cases. • (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
  • 30. Constitution of India • (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty- four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
  • 31. • ARVIND NATH TRIPATHI • DSNLU • Email-arvind.nath.tripathi@gmail.com • CELL NO-08688665173 (24 hour help Line Number)
  • 32. ARREST OF PERSONS -1 • Section.41. When police may arrest without warrant • (a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or • (b) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or • (c) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
  • 33. 41-A.Notice of appearance before police officer- The police officer may ,is all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41,issue a notice directing the person against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence to appear before him or at such other place as may be specified in the notice .
  • 34. SECTION 41(B)AND (C) . • 41-B.Procedure of arrest and duties of officer making arrest.- Every police officer while • making an arrest shall - • (a) bear an accurate ,visible and clear identification of his name which will facilitate easy • identification ; • (b) prepare a memorandum of arrest which shall be - • (i) attested by at least one witness, who is a member of the family of the person arrested or • a respectable member of the locality where the arrest is made ; • (ii) Countersigned by the person arrested : and • (c) inform the person arrested ,unless the memorandum is attested by a member of his • family, that he has a right to have a relative or a friend named by him to be informed of • his arrest. • 41-C. Control room at districts.
  • 35. ARREST OF PERSONS-2 • (d) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
  • 36. ARREST OF PERSONS-3 • Section-42-Arrest on refusal to give name and residence. • Section-46-Arrest how made. Section-43. Arrest by private person and procedure on such arrest.- non-bailable and cognizable offence Section-44. Arrest by Magistrate • Section-43. Arrest by private person and procedure on such arrest.- • non-bailable and cognizable offence • Section-44. Arrest by Magistrate
  • 37. How to make an arrest (Sec. 46) • No woman shall be arrested after sunset and before sunrise and where such exceptional circumstances exist, the woman police officer shall, by mailing a written report, obtain the prior permission of the Judicial Magistrate of the First Class within whose local jurisdiction the offence is committed or the arrest is to be made.
  • 38. PROCEDURE FOR ARREST • The word ‘arrest’, when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one’s personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists of taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge and preventing the commission of a criminal offence. An arrest, in most circumstances, can only be made after obtaining the necessary warrant. A warrant may be executed at any place in India. Such offences wherein an arrest can be made only after the necessary warrant has been issued are called non- cognizable offences; while the ones wherein an arrest can be made without a warrant are called cognizable offences.
  • 39. PROCEDURE FOR ARREST – Joginder Kumar v. State of Uttar Pradesh (1994 AIR1349, 1994 SCC (4) 260) The honorable Supreme Court of India raised similar concerns and commented upon the same in the case of Joginder Kumar v. State of Uttar Pradesh in the following words, “The horizon of human rights is expanding. At the same, the crime rate is also increasing… The law of arrest is one of balancing individual rights, liberties and privileges on one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the right, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis of deciding which comes first – the criminal or the society, the law violator or the law abiders…”
  • 40. SEARCH • In criminal law, search means examination of a person’s body, property or other area which the person would reasonably be expected to consider as private by a law enforcement officer for finding evidence of a crime.
  • 41. SEARCH WITH WARRANT WITHOUT WARRANT SEC 94 -SEARCH OF PLACE SUSPECTED TO CONTAIN STOLEN PROPERTY, FORGED DOCUMENTS, ETC .AND SEC97-PERSON WRONGFULLY CONFINED. SEARCH BY POLIC OFFICER DURING INVESTIGATION OR MAGISTRATE MAY DIRECT SEARCH IN HIS PRESENCE.
  • 42. Search of a person (Woman in particular) [Sec. 51(2)] (2) “Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency” • Sub-section 2 provides that whenever necessary, a female must be searched by another female only. Further emphasis on ‘decency’ again reflects the outlook of the legislature and how it intends to make the criminal procedure more comfortable and assured for women. • Similar emphasis can also been seen when a woman is to be searched by a police officer or a person, under a warrant, on being reasonably suspected of concealing about his person any article for which search should be made. Sec. 100 (3) again provides that such a search must be made by a woman only, with strict regard to decency.
  • 43. FIR(SECTION 154) • FIR is not define in the Code of Criminal Procedure,1973 • It is an information which is given to the police office; • Information must related to cognizable offence; • It is an information first in point of time; • It is on the basis of this information that investigation into the offence commences.
  • 44. REMAND • Remand to be granted in cases of real necessity- • Ordinarily when an investigation is incomplete the proper course is for the accused person to be sent up promptly with such evidence as has been obtained and for the trial to be commenced at once by the Magistrate and proceeded with, as far as possible and then adjourned for further evidence. In the opinion of the High Court a remand to Police custody ought only to be granted in cases of real necessity and when it is shown in the application that there is good reason to believe that the accused can point out properly or otherwise assist the Police in elucidating the case.
  • 45. ANTICIPATORYA BAIL(SEC.438) • Bail in anticipation of arrest • Extraordinary in character and given only in exceptional cases • It appears that a person might be falsely implicated, or frivolous case might be launched against him • Requirement -(a)Reason to believe (b)arrest must be in respect of a non-bailable offence; • By High court or Session Court • Subject to certain terms and condition
  • 46. Preventive Detention • Preventive detention is an action taken on grounds of suspicion that some wrong actions may be done by the person concerned. • Preventive detention can however be made only on four grounds. The grounds for Preventive detention are— • security of the state, • maintenance of public order, • maintenance of supplies and essential services and defence, • foreign affair.
  • 47. EVIDENCE • The word ,evidence is derived from the Latin word evidens or evidere, which means “ to show clearly; to make clear to the sight; to discover clearly; to make plainly certain; to ascertain; to prove”. • The main principle which underlie the law of evidence are- • (1) evidence must be confined to the matter in issue; • (2) hearsay evidence must not be admitted; and • (3) best evidence must be given in all cases. • The law of evidence is part of the law of procedure, i.e. the procedure court has to follow. • The law of evidence is the same in civil and criminal proceedings
  • 48. Evidence • "Evidence" means and includes-- • (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; • (2) all documents produced for the inspection of the Court; such documents are called documentary evidence.
  • 49. FACT • “Fact” - “Fact” means and includes: — • • (1) Anything, state of things, or relation of things, capable of being perceived by the senses; • • (2) Any mental conditions of which any person is conscious. • • Illustrations • • (a) That there are certain objects arranged in a certain order in a certain place, is a fact. • • (b) That a man heard or saw something is a fact. • (c) That a man said certain words is a fact. • (d) That a man holds a certain opinion, has a certain intention, acts in good faith of fraudulently, or uses a particular word in a particular sense, or is or was at specified time conscious of a particular sensation, is a fact. • • (e) That a man has a certain reputation is a fact.
  • 50. The Juvenile Justice (Care and Protection of Children) Act, 2000. The primary legal framework for juvenile justice in India. The Act provides for a special approach towards the prevention and treatment of juvenile delinquency and provides a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system. This law, brought in compliance of the 1989 UN Convention on the Rights of the Child (UNCRC).
  • 51. Causes •broken homes (family) •poor housing conditions •friends’ influence •exclusion •violence on TV, radio and Internet
  • 52. Ad hoc • ad hoc "for this purpose only." Thus, an ad hoc committee is formed for a specific purpose, usually appointed to solve a particular problem. Example: An ad hoc attorney is one hired to handle one problem only and often is a specialist in a particular area or considered especially able to argue a key point.
  • 53. Amicus curiae • Literally means "friend of the court“. • An impartial adviser to a court of law in a particular case.
  • 54. Alibi • Claim or piece of evidence that one was elsewhere when an act, typically a criminal one, is alleged to have taken place. • A form of defense whereby a defendant attempts to prove that he or she was elsewhere when the crime in question was committed.
  • 55. Alibi • Alibi is the defines taken by the accused • It means that he was physically not present at the time of scene of offence by reason of his presence at another place. • defence of alibi is not generally accepted unless backed by strong and solid evidence. • In Jayantibhai Bhenkarbhai v. State of Gujarat, (2002) 8 SCC 165.
  • 56. Ad Valorem • Ad Valorem-According to value. The term ad valorem is derived from the Latin ad valentiam, meaning "to the value."
  • 57. Arbitration • Arbitration is a proceeding in which a dispute is resolved by an impartial adjudicator whose decision the parties to the dispute have agreed, or legislation has decreed, will be final and binding.
  • 58. Cohabitation • Cohabitation is generally defined as two people living together as if a married couple. • The Court ordered dissolution of a marriage by decree of divorce on the ground of non- cohabitation of the parties
  • 59. BIGAMY • Second marriage during the subsistence of the first marriage is illegal in India and the relationship arising from the same does not have any validity. • One of the conditions for a valid marriage under Section 5 of the Hindu Marriage Act, 1955 is that neither of the party should have a spouse living at the time of the marriage. Under Section 11 of the Act, second marriages can be declared null and void.
  • 60. BIGAMY • Bigamy becomes an offence only if the husband or wife is alive. It is an offence even if it is performed with the consent of the first wife. • It will not apply, • if the husband or wife of the first marriage is dead or • if the first marriage has been dissolved by a decree of divorce or the former marriage is void or declared void by a decree of nullity
  • 61. Documentary evidence: Documentary evidence is defined in the Act as: All documents produced for the inspection of the court. The purpose of producing document, is to rely upon the truth of the statement contained therein .This involves, When the document produced in the court, the examination of three questions: (i) is the document genuine, (ii) what are its contents, and (iii) are the statement in the document true?
  • 62. THE PROBATION OF OFFENDERS ACT, 1958 Offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation .
  • 63. Difference between parole and probation • Parole is supervision that begins after a person's release from prison or jail after serving part of a sentence. Parole is a privilege, not a right. • Probation is a sentence that a judge can give instead of jail or in addition to jail or prison time.
  • 64. Bona Fide • Authentic,genuine,real and true. • without intention to deceive. • The court will assume that they have acted bona fide.
  • 65. Onus probandi • Section 101 in The Indian Evidence Act, 1872 • Burden of proof.—Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. • When a person to prove the existence of any fact, it is said that the burden of proof lies on that person. • Illustrations (a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. • Actori incumbit onus probandi - The burden of proof lies on the plaintiff.
  • 66. Exceptions • Exception 1 - The general rule in criminal cases is that the accused is presumed innocent. It is the prosecution who is required to establish the guilt of the accused without any doubt. At the same time, the accused is not required to prove his innocence without any doubt but only has to create reasonable doubt that he may not be guilty. • Section 105- Specifies an exception to this general rule. When an accused claims the benefit of the General Exception clauses of IPC, the burden of proving that he is entitled to such benefit is upon him. For example, if an accused claims the benefit of insanity in a murder trial, it is up to the accused to prove that he was insane at the time of committing the crime.
  • 67. • Exception 3 - Presumptions - Court presumes the existence of certain things. For example • Section 113B, when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. law presumes the legitimacy of children born in wedlock. It is the duty of person denying legitimacy to prove the allegation. • Law presumes the legitimacy of children born in wedlock. It is the duty of person denying legitimacy to prove the allegation. Exceptions
  • 68. Actus personalis moritur cum persona • A personal action dies with the person.
  • 69. Punishments • Infliction of pain or unpleasant consequences • Prescribed by law • Administered in accordance with procedure • By the State • Two dimensions to punishment: – Purposes that justify the punishment – Proportionality of the nature and quantum of punishment in relation to the nature and seriousness of the crime
  • 70. • Retribution - to gratify the instinct of revenge or retaliation, which exists not merely in the individual wronged, but also in the society at large. Retribute means to give in return. The objective of the theory is to make the offender realise the suffering or the pain. Majority or Jurists, Criminologists, Penologists and Sociologists do not support this theory as they feel it is brutal and barbaric.
  • 71. • Deterrence- to prevent the wrong doer from doing a wrong the second time and also to make him an example to other persons, who have criminal tendencies. • 'Deter' means to abstain from doing at act. The main objective of this theory is to deter (prevent) crimes. It serves a warning to the offender not to repeat the crime in the future and also to other evil-minded persons in the society. This theory is a workable one even though it has a few defects.
  • 72. • Preventive – to prevent the offender from offending again in future by disabling him. The idea behind this theory is to keep the offender away from the society. Example- imprisonment of life etc.
  • 73. • Reformative – to reform the offender and by giving some vocational training in art, craft or industry, enabling him to lead a good life and become a respectable citizen of society after release. • objective is to reform the behavior of the criminals. The idea behind this theory is that no one is born as a Criminal. The criminal is a product of the social, economic and environmental conditions. It is believed that if the criminals are educated and trained, they can be made competent to behave well in the society. The Reformative theory is proved to be successful in cases of young offenders.
  • 74. • Death • Imprisonment for life • Imprisonment ,rigorous or simple • Forfeiture of property • Fine
  • 75. Questions Qus.1.What is the meaning and objective of the Maxim-‘Ignorantia facit excusat, ignorantia juris non excusat’? Qus.2.What do you mean by ‘Doli-incapax’ ?Can a person of 8 year be held liable for criminal conspiracy?
  • 76. What is BENCH? • A seat of judgment or tribunal for the administration of justice; the seat occupied by judges in courts; also the court itself or the aggregate of the judges composing a court, as in the phrase “before the full bench.” (Black's Law Dictionary)
  • 77. Full Bench - What is the meaning to full bench in court language ? • Full Bench in High Courts comprises of Three or more Judges hearing a case and giving independent judgment if their opinion differs or collective judgment if their opinion agrees. Recently such Full Bench Judgment was delivered by Three Allahabad High Court Judges in Ram Janma Boomi case.
  • 78. Binding effect of Judgments • As general rule a decision of Bench consisting of larger number of Judges prevails over the decision rendered by a Bench of lesser number of Judges. Even in a case where there may be a later decision but a decision rendered earlier on the point by a Bench consisting larger number of Judges have the binding effect. Reference to some decisions on the point may useful be made: AIR 1974 S.C. 1596, Muttulal v. Radhe's Lal, AIR '1976 SC 2433, Union of India and another v,K.S. Subramanian, (1995) 1 SCC 58, Commissioner Sales Tax J & K and Ors. v. Pine Chemicals Ltd. & others.
  • 79. Precedent A principle of Jurisprudence or policy of Courts by which the Courts and Authorities are required to follow a rule of law established previously in cases involving similar issue.
  • 80. Precedent • An important feature of the administration of justice is that 'like cases should be decided alike', to avoid any kind of discrimination in the matter of application of laws in similar cases, though may be decided by different Courts in any part of a State or the country. It is possible only through binding judicial pronouncements.
  • 81. Precedent • As a matter of public policy, it is also important that there must be some degree of certainty in the laws so that people may conduct their affairs and plan their future accordingly. In one of the decisions reported In AIR 1968 Alld. 100, Ram Manohar Lohia and others v. State of U.P. and others, it has been observed that it is necessary to maintain judicial uniformity and judicial discipline. Precedents maintain judicial uniformity .
  • 82. Precedent • The observation of Lord Denning as quoted in AIR 1985 S.C. 1585, Distributors v. Union of India, is: “The doctrine of precedent does not compel your lordship to follow the wrong path until you fall over the edge the cliff." The gist of the matter seems to be that as far as possible within a reasonable limits a view which is coming down since long may be adhered to in the interest of public of predictability and certainty of law but as observed by the Supreme Court also it cannot stretched beyond a limit of rigidity. An obviously wrong Judgment against the law, cannot be protected either by doctrine of binding precedents nor stare decisis.
  • 83. Persuasive Value • So far decisions of High Courts are concerned, they have binding effect within the State and the decisions of the High Courts of other States have on persuasive force. The High Court while deciding a matter, if faced with decisions of its own High Court of co-equal number of Judges, taking irreconcilable view on the point the proper course is to refer the matter to larger Bench.
  • 84. Stare decisis A principle of long recognition becomes ‘stare decisis’
  • 85. Ratio decidendi It refers to the rule of law established in a particular case.
  • 86. Obiter dictum It refers to the incidental findings of the Court on various legal issues arising during the arguments for arriving at the final judgments.
  • 87. Obiter dicta of the Supreme Court • Obiter dicta of the Supreme Court is binding on all Courts. This we find in AIR 1959 SC 814, The Commissioner of Income Tax, Hyderabad,Deccan v. Mls Vazir Sultan and sons, AIR 1975 S.C. 1087, Municipal Committee, Amritsar v. Hazara Singh, AIR 1969 Allahabad 304 (FB), Chobey Sunder Lal v.Sonu alias Sonpal and another, AIR 1989 Delhi 193(FB), D.C.M. Limited v. Union of India and others, AIR 1960 Allahabad 672, Union of India v. Firm Ram Gopal Hukum Chand and others, and AIR 1967 Rajas than 1, Radha Kishan v. State of Rajasthan and others. It has been observed that judicial uniformity and judicial discipline require that courts must also follow the obiter dicta of the Supreme Court.