The profession of a lawyer is such where you’ll have to read many books. As soon you enter law school, you are asked to read books, research papers, journals, etc. Reading books give you theoretical knowledge, add exciting facts to your mind, and keep you motivated.

A person in the legal field must have a reading habit, and novels are the best companions that can help you build a reading habit along with providing some practical knowledge that will help you in your law career. None of your college books can give you this knowledge that will be of significant importance in surviving law school life.

Now, the question comes what to read? In this post, you’ll learn about nine exciting novels that every law student, advocate, judge, and person in the legal field should read.

1. About Law: An Introduction – Tony Honoré

By the name, can you figure out the reason for keeping this book on the top of the must-read novels for law students? It is because About Law by Tony Honoré gives the basic meaning of the law.

Any student pursuing law or who wants to pursue law must read this book first. It will help you understand what exactly law is and how it works.

About Law is not a lengthy book. It is short and simple. After reading this book, you will surely understand a lot about the law that you might not have understood till now.

See About Law on Amazon

2. Justice: What’s the Right Thing to Do? – Michael J. Sandel

As suggested by the name of this book, it talks about justice. This book contains various theories and philosophies related to justice.

In addition to people in the legal field, anyone of any age group can read this book to get answers to questions, such as:

• Is lying always wrong?
• Is killing someone wrong in every situation? etc.

The most exciting feature of this book is that it has attempted to answer such questions of people, which revolve around their minds related to law and justice. The author talks about democracy, equal rights, euthanasia, abortions, and more.

See Justice: What’s the Right Thing to Do on Amazon

3. Law School Confidential – Robert H. Miller

Law School Confidential by Robert H. Miller is for your constant support – from when you are thinking of entering a law school until you appear for the Bar Council exam.

Law School Confidential is the most comprehensive and detailed book that shares all the experiences at every stage of law school, and you might relate to it if you are already in a law school.

This book has three editions, and the latest edition tells everything about surviving in a law school, from taking admission, financial aid, exam strategies to securing a job.

See Law School Confidential on Amazon

4. Tomorrow’s Lawyers – Richard Susskind

Tomorrow’s Lawyers by Richard Susskind is the novel that will give you recent insights into law. It talks about the transformation in the legal world due to the COVID pandemic, such as virtual hearings, online filing, e-forms, online practices.

You can read this book to know the future of law. Isn’t it interesting that you can read the future of law today itself, which will help you prepare yourself in the same way as the law demands in the future?

See Tomorrow’s Lawyers on Amazon

5. Letters to a Law Student – Nicholas McBride

Letters to a Law Student by Nicholas McBride tells you how to succeed as a law student. The author in this book has tried to answer the most common questions of law students, such as what students of law do, how to earn the highest grades in exams, tips for dealing with the difficulties of law school, etc.

Letters to a Law Student will give you advice related to almost every phase of your law school life. Even the students who are thinking of pursuing law can read this book as it will help them get answers to most of the questions revolving in their minds.

See Letters to a Law Student on Amazon

6. One L – Scott Turow

One L by Scott Turow tells the struggle of a student in the first year of Harvard Law School. This book can be read by anyone worried about going into law school. Reading One L inspires students and tells them how to tackle such problems that may come up in law school.

See One L on Amazon

7. 24 Hours With 24 Lawyers – Jasper Kim

While writing 24 Hours with 24 Lawyers, Jasper Kim, the author, had spent 24 hours with 24 lawyers to let the readers know the career prospects in law. 24 Hours with 24 Lawyers will tell you about various career options in law, which will help you select the one that suits you.

You can read this book at any point in your law school life, and it will guide you to achieve the career that suits you the best.

See 24 Hours with 24 Lawyers on Amazon

8. Winning Arguments – Jay Heinrichs

The life of a lawyer is all about winning arguments and presenting the arguments so that it looks correct, even if it is not correct, to save the client. Winning Arguments by Jay Heinrichs will help you frame and structure the statements in the best possible manner.

See Winning Arguments on Amazon

9. Before Memory Fades – Fali S. Nariman

The author of Before Memory Fades, Mr Fali S. Nariman, was a former Supreme Court lawyer and well-known jurist. In his book, he discusses a wide range of critical topics, including the integrity of the Indian Constitution and attempts made to tamper it. The author talks about restoring the credibility of the legal profession that has become low. Before Memory Fades is, without a doubt, one of the most significant legal books you’ll ever read.

See Before Memory Fades on Amazon

Read Next:
1. 4 Lessons for Law Students From “To Kill a Mockingbird”
2. Need for Clinical Legal Education – Characteristics, Advantages, and Disadvantages

Disclaimer: When you buy something on Amazon using the links in this post, WritingLaw may earn a tiny commission without you having to pay anything extra.

9 Best Novels for Law Students and Advocates
Anushka Saxena

Following the death of 14 civilians in Nagaland on 4 December 2021 because of the armed forces’ actions, the accountability of the armed forces is once again under a question mark.

The debate again arose on the question that under the Armed Forces Special Power Act (AFSPA), do the armed forces have total immunity for any actions they take?

In this article, let us check out the provisions, pros, cons, debate around the Armed Forces Special Power Act and why some people of northeast India want to repeal it.

What Is AFSPA?

The Armed Forces Special Power Act was passed in the wake of the riots after partition in 1947. The President promulgated four ordinances to control riots in Bengal, Assam, East Punjab, Delhi and United Provinces. In 1957, the Government repelled these ordinances. Then, Parliament passed a new Act, especially for Assam and Manipur, known as the Armed Forces Special Powers Act, 1958, to combat the insurgency in the northeastern states.

Today, the Armed Forces Special Power Act is currently in force in:

• Assam,
• Nagaland,
• Manipur,
• In three districts of Arunachal Pradesh, and
• The jurisdiction of 8 police stations in Arunachal Pradesh bordering Assam.

Armed Forces (Special Powers) Act, 1958

The Act grants “special power” to the armed forces, and it applies to the Army, the Air Force, the Central Paramilitary forces, etc., in disturbed areas.

What Is Disturbed Area?

According to section 2 of AFSPA, it is an area that is declared as a disturbed area by notification under section 3 of AFSPA for the time being. Whereas section 3 talks about the power to declare any area as a disturbed area. The law says, “The Governor of a State, the Administrator of the Union Territory, or the Central Government may designate a part or the entire area as a disturbed area if the conditions in such areas are so dangerous or disturbed that use of armed forces is necessary.”

What Happens if Any Area Is Declared a Disturbed Area?

Section 4 of AFSPA grants some special powers to the armed forces in a disturbed area, such as:

1. If prohibitory orders prohibiting assembly of five or more persons or carrying arms or weapons are in force in the disturbed area, the police have the power to use force, including opening fire even to the point of causing death.

2. To destroy any structure used as a hideout, a training camp, or a launching point for attacks.

3. To enter and search premises without a warrant of arrest to recover hostages, arms, and ammunition.

4. Power to arrest without warrant and to use force for the purpose.

5. Further, section 6 of the AFSPA gives immunity to the armed forces for their actions under section 4. Section 6 reads that “No person can be prosecuted or subjected to any legal proceedings for action taken under the Act without the Central Government’s previous sanction.”

Why the Demand to Repeal AFSPA?

1. Many Human Rights Organisations argue that the Act encourages impunity and causes many instances of excesses and atrocities committed by the armed forces under its protective cover.

2. The United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions also called for the repeal of AFSPA. The report noted that “AFSPA allows the state to override rights. We should oppose such legislation since it has no place in a democracy.”

3. In 2000, Manipur activist Irom Chanu Sharmila or the “Iron Lady of Manipur”, went on an indefinite fast to demand the repeal of AFSPA, becoming an iconic figure in the struggle against the law. She ended it only in August 2016.

4. The United Nations Human Rights Commission states that force must be justified by self-defence or by a minimum level of proportionality. In contrast, AFSPA gave vast power to the armed forces.

5. Former Union Home Minister GB Panth said that “the AFSPA is subject to the Code of Criminal Procedure, and the motive in CrPC is the use of minimal force, but AFSPA deviates from it.”

6. The Justice Verma Committee (2012) recommended that members of the armed forces should be subject to ordinary criminal law for sexual assault on women and urged for a review of the continuation of AFSPA immediately.

7. In 2005, the Government appointed a committee of five members, headed by retired Supreme Court judge P Jeevan Reddy, who recommended the repeal of AFSPA. There was a suggestion to amend the Unlawful Activities (Prevention) Act, 1967, to deal with such situations of insurgency and terrorism.

8. The AFSPA created a negative impression among the people of the northeast states.

9. According to The Times of India, between 2012 and 2016, a total of 186 complaints of human rights abuses by defence personnel were recorded in states where the Armed Forces (Special Powers) Act, 1958, is in force.

Government’s Point of View for AFSPA

1. The Indian army is fighting a proxy war. Therefore, the Armed Forces (Special Powers) Act enables the security forces to fight both external and externally backed forces, both of which pose a threat not only to the states but also to the entire country.

2. AFSPA offers both legal protections and operational power for the security of men and material.

3. Pakistan has trained, willing, and available terrorist cadres that may boost terrorist violence in the coming years. Thus, AFSPA is crucial to carry out operations in the borders areas.

Constitutionality of AFSPA

In Naga People’s Movement of Human Rights vs Union of India, AIR 1997 SC, the Petitioner challenged the constitutionality of the Armed Forces (Special Powers) Act in the Supreme Court. The petitioners had argued that:

• Parliament could not legislate on state subjects, i.e., maintaining public order.
• Since AFSPA was a “measure intended to achieve the same result as under Article 352 of the Constitution”, it was illegal.
• This law was arbitrary and conferred vast powers on armed forces.

A five-judge Constitution Bench unanimously upheld the law. The court said that:

• Although the Constitution allows the deployment of armed forces to aid civil power, such deployment is only for a “temporary period” or “until a situation of normalcy has returned.”
• The state government’s opinion must be taken into account when declaring a region a “disturbed area.”
• Under the AFSPA, the officer may not use excessive force against the person violating the prohibitory order.

In Extra Judicial Execution Victim Families Association vs Union of India AIR 2016 SC, a bench of Justices Madan Lokur and UU Lalit observed that:

“Even if army personnel commit an offence, they will not be immune from prosecution by a criminal court constituted under the CrPC. In a constitutional democracy such as ours, outright acceptance of the proposition advanced is equally unsettling and demoralizing, especially as we live under the shadow of weapons that can be used with impunity.”

The court further noted that:

“Killing an ‘enemy’ is not the only available solution, and that is what the Geneva Conventions and the principles of international humanitarian law tell us.”

What are your thoughts on this?

Read Next:
1. Different Duties of an Advocate
2. Custodial Deaths: A Matter That Requires Immediate Attention
3. 4 Lessons for Law Students From “To Kill a Mockingbird”

What Is AFSPA, Demand for Its Repeal, and Constitutionality
Ritesh Kumar

Law students are often advised to read books as much as they can. I remember entering my college library’s fiction section on the 1st day itself. The book that caught my attention amongst many others was “To Kill a Mockingbird” by Harper Lee. It was written in 1960, and the writer was awarded Pulitzer Prize for the same. The book has been cited over 65 times in American courts.

The story of To Kill a Mockingbird revolves around racial discrimination faced by black people around the world. The story’s main character is Scout Finch, daughter of a principled and courageous attorney, Atticus Finch (a white man). Atticus mostly fought cases of the destitute (needy) and hence is poor. He is a widower with 2 children and emphasises teaching major life lessons to his kids throughout the novel.

The major lessons by Atticus Finch to his kids in “To Kill a Mockingbird” can be divided into 4 parts. These lessons are:

1. Put Yourself in Other People’s Shoes

One should not judge a book by its cover. To understand a person’s circumstances, we must empathise with them. One Arthur Ridley, who the children never saw outside the house, was perceived as an ugly person. But as the story unfurls, one can easily notice his act of care for the children. Yet, he decides to remain a recluse (a person who lives a solitary life and tends to avoid other people). Scout experienced this lesson towards the end of the novel.

2. Don’t Kill Mockingbirds

You may kill all the birds you want but not mockingbirds as they don’t harm any plants or anyone’s farms. All these birds do is make music.

The metaphorical meaning for the term “Mockingbird” is anyone who is weak and defenceless. As presented in the novel, the people of colour were treated as unequal. They were given petty jobs and negligible wages. Most of the time they were not even paid. They stayed in a settlement at the outskirts of the County where white people lived. Thus, the protagonist’s aunt tells her that no one should take advantage of someone weaker than them.

3. Keep Fighting Even if You Know You Will Lose

The 2nd part of the book involves a character named Tom Robinson. Tom was a black man who had been arrested and charged for raping a white woman. Atticus was appointed as his defence attorney. Due to prevailing racism in the 1930s, when this novel was premised, he was bound to lose the case no matter how convincingly he presented his arguments.

Atticus’s children were mocked for he was fighting a black man’s case. But he reminded them to keep fighting and persevering in the face of adversity. Even after all the shreds of evidence led to the innocence of Tom, Atticus knew that a white jury was never going to acquit a black man accused of raping a white woman.

4. The World Is Very Unfair

The children of Atticus were highly disappointed at the conviction of Tom. They learnt that even the justice system was tainted by unfairness. The man against whom Atticus was arguing the case wanted to kill his children, but Arthur saved them. Arthur, in turn, ends up killing the attacker.

The Sheriff decides to cover up the murder as an accidental fall. Atticus fears that his children might see this as a bend in law just after they witnessed a victim of racism. But Scout tells Atticus that she understands that making a hero out of Arthur would only invite unsolicited attention.

The best gift for saving her life to Arthur would be to let him keep his privacy. To Kill a Mockingbird would be the biggest sin. Despite seeing the unfairness of life, Scout has seen its fairness as well.

Read: Restrictions on Advocates to Take Up Other Employment

Wrapping It Up

To Kill a Mockingbird is an interesting read for law students to begin with. It covers many facets of society such as racism, inequality, untouchability, slavery, discrimination and injustice.

Even after 8 decades of this book, one can still experience such taboo in society. The most recent movement experienced around the world is Black Lives Matter. The law students should also go through Atticus Finch’s unsparing cross-examination presented in the novel to learn this art.

Reading becomes a way of life for lawyers and law students, so why not pick a fiction that solves two purposes at the same time.

You’ll also love:
1. 32 Duties of an Advocate
2. Art of Cross-Examination in Court
3. Difference Between a Lawyer, Advocate, Barrister and Attorney

4 Lessons for Law Students From “To Kill a Mockingbird”
Prashant Pratyay

Bail is a rule and jail is an exception – Supreme Court of India

The word bail has been coined from the French word ‘bailer‘, which means to deliver or give. The tentative release of an accused from custody is termed as bail. In other words, bail is the security for the accused person. In this CrPC law note, you’ll learn more about bail under the Indian Criminal Procedure Code.

Bail Provisions Under Indian Constitution

The Indian Constitution under Article 21 guarantees the right to life and personal liberty to every individual. A person is assumed to be innocent unless proved guilty. Hence, an accused shall not be deprived of personal liberty unless prescribed by a fair and just procedure.

Bail Provisions Under CrPC

The term ‘bail‘ is nowhere defined in the Criminal Procedure Code, 1973. However, bail provisions have been defined in CrPC under sections 436-450. The first schedule of CrPC also defines which offences are bailable and which are not. Generally, non-bailable offences are more heinous crimes.

Bail in Bailable Offence

Section 436 of CrPC deals with provisions for bail in bailable offences. This provision is mandatory in nature, and the police or the court has no discretion over it.

Case Law: Vaman Narayan Ghiya vs the State of Rajasthan: The apex court has held that no jurisdiction lies to any court while granting bail under section 436 CrPC except asking for security.

Note: 2005 Amendment of CrPC removed the sureties in the case of indigent persons.

Bail in Non-Bailable Offence

Section 437 of CrPC deals with provisions for bails regarding non-bailable offences. It is based purely on the discretion of the court (other than the High Court and Sessions court).

Case Law: Kalyan Chandra Sarkar vs Rajesh Ranjan: The apex court observed that the detention of the accused in non-bailable offences could not be questioned as being violative of Article 21 of the Constitution.

Stages or Types of Bail

1. Anticipatory Bail

Anticipatory bail is filed before the arrest is made. In other terms, it is also known as pre-arrest bail. The accused apprehending arrest can approach the High Court of the concerned state for anticipatory bail application under section 438 of CrPC. Anticipatory bail is frequently in the news, and politicians, prominent personalities, journalists, etc., often use this.

2. Bail on Arrest

This is filed after the arrest of the accused person. Under Section 437 of CrPC, the arrested person can approach the court for bail.

3. Bail for Convict

This is filed post-conviction by the court, and an appeal lies against the same. When the accused has been convicted by the court and has preferred an appeal, the accused can apply to the appellant court for bail.

Related Law Note: Criminal Appeal and Its Kind Under CrPC

4. Default Bail

When the charge-sheet is not filed in the court within the prescribed time period or in other words, the investigation remained incomplete within the stipulated time period; the accused is entitled to default bail.

5. Interim Bail

Lal Kamlendra Pratap Singh vs State of U.P. and Ors. (2009): Interim bail is nowhere defined in CrPC. The concept of interim bail was started by the Hon’ble Supreme Court in 2009, stating that interim bail be granted pending disposal of bail application because arrest and detention of a person may cause irreparable loss.

Rukmani Mahato vs the State of Jharkhand (2017): Here, the misuse of interim bail came to the Supreme Court’s notice. The apex court had expressed extreme displeasure over granting regular bail based on the pre-arrest/interim bail of the superior court. The apex court held:

Even if the superior court dismisses the anticipatory bail plea after further examination, the normal bail granted by the subordinate court will continue to hold the field, rendering the superior court’s final denial of the pre-arrest bail useless.

Advantages of Bail

Some of the major benefits of granting bail are:

• One can be well-braced for trial.
• One’s reputation can be preserved.
• One can attend his work or job.
• Family bonding and responsibilities can be maintained.
• Freedom from police torture.
• Freedom from the boredom of hardened criminals.
• Freedom from low hygienic conditions of the jail.
• One can meet his advocate anytime.

Disadvantages of Bail

The primary concerns for granting bail are:

• The burden of expenses lies on the state.
• Damage is caused to the reputation of the accused.
• The accused family finds it difficult to adjust to society because people have inferior views against the same.

Cancellation of Bail

Bail can be cancelled anytime under section 437 (5) of CrPC if the accused violates any of the conditions prescribed by the court. The petition for cancellation of bail can be filed by the state or the party aggrieved in the court.

Important Case Laws Regarding Bail

In May 2021, the Madhya Pradesh High Court has stated that District Judiciary is extremely tight twisted in granting bail, which in turn issued directions regarding granting of bail to police as well as Judicial Officers, which are as follows:

Instructions to Police Regarding Bail

1. When the maximum penalty for an offence is up to 7 years in jail, the accused may not be detained by the police as a matter of course; unless there is a specific statute that requires it.
2. Before arresting in such a case, the police would record the reason in writing why the arrest was necessary: To prevent the accused from committing any further offences, or for case’ proper investigation, or to prevent the accused from causing the disappearance of evidence or based on credible suspicion that the accused would tamper with evidence or prevent a witness from testifying, or based on credible apprehension that the accused would tamper with evidence or prevent a witness from testifying.
3. While arresting an accused of offences carrying a potential punishment of up to 7 years, the State Police is required to format and produce a checklist of pre-conditions that the police must meet under section 41(1)(b)(ii) of the CrPC. A copy of the checklist must be submitted with the remand application to the Magistrate who has the authority to remand the accused to the police or judicial custody.
4. If the police decide not to arrest the suspect, the Magistrate must be notified within two weeks of the FIR being filed. For circumstances that must be proven in writing, the Superintendent of Police may extend this term.
5. If questioning of the accused is needed, the accused must be issued with a notice under section 41A CrPC or section 160 CrPC within two weeks of the FIR being registered, which may be extended by the Superintendent of Police of the district concerned for reasons to be recorded in writing.
6. When the police do not arrest the accused, and the accused appears before the police on notice under section 41A or section 160 CrPC and assists the police in the course of the investigation, the police are not to arrest the accused unless there are compelling reasons that must be recorded, as stated in paragraph 31.2.
7. Suppose the police fail to comply with the requirements mentioned above. In that case, they will be held in contempt of the court’s order, in addition to any other administrative action that may be taken against the erring officer.

Instructions to Judicial Magistrates Regarding Bail

1. When exercising remand powers, the Magistrate must determine whether the arrest made by the police meets the conditions of section 41 of the CrPC, as stated in paragraph 11.2 of Arnesh Kumar’s case.
2. The Magistrate must determine if the checklist is available, as ruled by the Supreme Court in Arnesh Kumar’s case, paragraph 11.3.
3. Suppose the police fail to comply with paragraphs 11.2 and/or 11.3 of Arnesh Kumar’s case. In that case, the Magistrate shall not authorise further detention of the accused and shall release him immediately, as the arrest is unlawful in and of itself. Thus his detention would be unlawful as well due to the police failing to comply with the requirements of section 41 of the Criminal Procedure Code.
4. In accordance with paragraph 11.4 of Arnesh Kumar’s judgement, it is obligatory for the Magistrate authorising detention to record his independent satisfaction and to guarantee that his satisfaction for further remand of the accused is fulfilled in his order of remand.
5. The Magistrate must also determine whether specific reasons for the accused’s arrest have been documented and if those reasons are significant, leading to a reasonable judgement that one of the conditions for the accused’s continued custody as an undertrial has been met.
6. Failure on the part of the Magistrate to perform as ordered herein may result in administrative procedures being initiated against such Magistrate.

Conclusion

The power given to the police for arrest has become one of the remunerative sources for police corruption. It has become a handy tool who act with ill motive.

Courts, especially the district courts and courts subordinate to it, hesitate to provide bail to the accused as the fear grows in Judicial Magistrates’ minds as to they may be questioned by higher judiciary or vigilance case may be initiated against them.

In such cases, the accused approaches the higher judiciary for bail, resulting in courts’ overcrowding. Therefore, Judicial Magistrates of the level of District Judge and below should adhere to the directions given by High Courts and Supreme Courts while deciding bail related cases.

This not only will help the accused in getting bail rather overcrowding of higher courts can be prevented. This will also be a lesson for the police for making unnecessary arrests.

Now, we have a different writer talking about Bail in her style. Please see this as well.

The provisions of bail are mentioned in chapter XXXIII of the Criminal Procedure Code from sections 436 to 450. The word ‘Bail’ has not been defined in the code. Law Lexion defines bail as the security for the appearance of the accused person on which he is released pending trial or investigation.

Object of Bail

According to ‘Black’s Law Dictionary’ the object of bail is to procure the release of a person from legal custody by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the court.

In ‘Moti Ram vs State of MP‘, the court held that there is no definition of bail in the code, although the terms bailable offence and non-bailable offence have been defined.

The code classifies offence as bailable and non-bailable offence. Both the terms have been defined in section 2(a) of the code. Serious offences which are punishable with imprisonment of three years or more are considered non-bailable offences. In contrast, less serious crimes punishable with imprisonment of less than three years are considered bailable offences.

Circumstances of Bail

Here are six conditions of bail in the Criminal Procedure Code.

1. Bail in Case of Bailable Offence – Section 436

Bail in bailable cases is a matter of right. Section 436 of CrPC deals with bail in bailable cases. This section empowers the court as well as the police to grant bail. Any accused arrested for committing a bailable offence and is willing to provide bail must be released with or without sureties. Provided where such person is indigent and is unable to provide surety, such person shall be discharged executing a bond without sureties.

2. Bail in Case of Non-Bailable Offence – Section 437

Bail in non-bailable cases is a privilege. Bail under section 437 of CrPC is granted at the court’s discretion. A person shall not be released on bail if:

(i) the person is guilty of an offence punishable with death or imprisonment of life;
(ii) the offence is a cognisable offence;
(iii) the person has been previously convicted of an offence punishable with death or imprisonment of life;
(iv) the person has been convicted twice or more in the past for a cognisable offence punishable with imprisonment for three years or more but not less than seven years.

3. Anticipatory Bail – Section 438

It is the pre-arrest bail. Any person who apprehends his/her arrest regarding a non-bailable offence can apply for anticipatory bail. Anticipatory bail has not been defined anywhere in the code.

In ‘Balchand Jain vs State of MP‘, the Supreme Court specified anticipatory bail as bail in anticipation of arrest.

In ‘Siddharam Satlingappa Mhetre vs State of Maharastra‘, the Supreme Court emphasised that anticipatory bail is a device to secure the individual’s liberty and neither a passport for the commission of crime nor a shield against any kinds of accusations likely or unlikely.

4. Bail in Default: Bail Granted by Default Due to Non-Completion of Investigation – Section 167(2)

When the investigation is not completed within 24 hours, the judicial magistrate is empowered to authorise the custody of the accused under section 167 of the code.

A person who is detained for committing an offence and is undergoing investigation are eligible for bail;

(i) After 90 days when investigation relates to an offence punishable with death or imprisonment for not less than ten years
(ii) After 60 days, if the investigation is related to any other offence

If the investigating authority fails to file a charge sheet.

5. Interim Bail

The bail granted to a person when the main bail application is yet to be disposed of and may consume a longer time to decide. It was recently granted to comedian Munawar Faruqui as the procedure laid down under law for arrest was not followed.

6. Bail After Conviction – Section 389

A convicted person can get bail from the appellate court after filing the criminal appeal under section 389(1) and (2) of CrPC.

Read Next:

• What Is the Procedure of Search by a Police Officer (Search With Warrant and Search Without Warrant)
• Bail Is a Rule, and Jail Is an Exception – Explained
• What Is Statutory Bail in India and the Conditions to Get It?

Bail Provisions Under the Criminal Procedure Code
Nupur

Limitation Act is important for understanding procedural law. The right can be claimed within the period of limitation only. Once the time elapses, the right becomes imperfect and not enforceable. Every section and article of Limitation Act, 1963 is important and can’t be left assuming unimportant. One should read the whole bare act carefully. It is short, simple, and easy to understand. Still, for the purpose of this post and law exams, here are the most important sections of the Limitation Act.

Important Sections of Limitation Act, 1963

Section 2 – Definitions.
Section 3 – Bar of limitation.
Section 4 – Expiry of prescribed period when court is closed.
Section 5 – Extension of prescribed period in certain cases.
Section 6 – Legal disability.
Section 10 – Suits against trustees and their representatives.
Section 12 – Exclusion of time in legal proceedings.
Section 13 – Exclusion of time in cases where leave to sue or appeal as a pauper is applied for.
Section 15 – Exclusion of time in certain other cases.
Section 16 – Effect of death on or before the accrual of the right to sue.
Section 18 – Effect of acknowledgement in writing.
Section 20 – Effect of acknowledgement or payment by another person.
Section 21 – Effect of substituting or adding new plaintiff or defendant.
Section 24 – Computation of time mentioned in instruments.
Section 25 – Acquisition of easement by prescription.
Section 27 – Extinguishment of right to property.

Important Articles of the Limitation Act

Article 5, Article 19, Article 27, Article 51 and Article 52, Article 54, Article 56, Article 59, Article 60 to Article 65, Article 68, Article 78, Article 90, Article 97, Article 105, Article 109, Article 113 to Article 116, Article 120, Article 123 and Article 124, Article 130, Article 134 and Article 135, Article 137.

Limitation Act for Exams

Limitation Act has 32 sections, and thus, it would be best if you focus on all of these. Still, I hope the list of above most important sections helped you gain some valuable perspective from the exams’ point of view.

If you want, you can get a nice PDF of this act and many more at an affordable price. WritingLaw also offers MCQ Tests that have mixed questions from various important law subjects. These are important for all law exams like Judiciary, CLAT, semester exams, and more.

Read Next:
1. Important Definitions Under the Limitation Act, 1963
2. General Introduction to the Limitation Act, 1963

Important Sections of Limitation Act
WritingLaw

Generally, a person who has committed an offence is subject to arrest. Consequently, a person committing an offence is restrained. Various provisions related to arrest are given in the Criminal Procedure Code, 1973, but it does not provide the definition of the term “arrest”. In this law note, we will briefly learn what an arrest is and then focus on inter-state arrest and its guidelines.

• What is arrest?
• Who can arrest?
• What is Inter-State Arrest?
• Guidelines for Inter-State Arrest

What is arrest?

According to the Farlex legal dictionary, the word ‘arrest’ means taking or keeping a person in custody by legal authority, especially in response to a criminal charge.

Arrest can be defined as the detention of a person by the legal authority so that the person can be deprived of his liberty and freedom.

The arrest may sometimes become necessary to obtain the correct name and address of a person who has committed a non-cognizable offence. The primary purpose of the arrest is to bring the accused person before the court and preserve the management of law.

Who can arrest?

An arrest can be made by the police officer, the magistrate, any person authorised by law or any other private person.

As per section 41 of the Criminal Procedure Code, 1973, a police officer can arrest a person with a warrant and without a warrant as well. He can also arrest a person committing a non-cognizable offence if the person refuses to give his name and address of the residence.

Magistrates, either executive or judicial, can arrest a person if any offence is committed in their presence within their local jurisdiction.

Further, for the general interest of society, CrPC empowers a private person to make an arrest without a warrant. As per section 43 of the Criminal Procedure Code, 1973, any private person can arrest any person who has committed a non-bailable and cognizable offence in front of him if no police officer is present anywhere near the offence scene.

What is Inter-State Arrest?

Inter-state arrest is the concept under which the police officer of one state cannot arrest or interrogate an accused in any other state outside their jurisdiction. However, to arrest the accused in another state, the police officer can request the local police of that state for cooperation and assistance. And, only the local police can arrest and produce the accused in front of the magistrate. When the magistrate issues a transit warrant, then only the accused is given up to the custody of the police of that state.

Guidelines for Inter-State Arrest

Recently in Sandeep Kumar vs the State (Government of NCT of Delhi) & Ors., several suggestions or guidelines have been framed by the Supreme Court for the police regarding inter-state arrest. The guidelines are as follows:

1. The police officer must take the prior written permission of the superior officer to go out of the state or union territory to carry out the investigation. He can take permission on the phone only in case of urgencies.

2. In cases where the police officer decides to arrest an accused in another state, he must write facts and reasons so as to satisfy why the arrest is necessary. The police officer must attempt to get an arrest or search warrant from the magistrate having jurisdiction. He can arrest an accused without a warrant only in case of emergency. And, in such cases, he must record compelling reasons to visit another state without getting an arrest or search warrant.

3. Before going out of the state, the police officer must make a detailed departure entry in the Daily Diary (DD) of his Police Station containing the name of the police officials and private officials going with him; vehicle number; the purpose of visit; specific place(s) that is/are to be visited; time and date of departure.

4. A lady police officer should be made part of a team if the arrestee (the person to be arrested) is a female.

5. The police officers should have their identity cards with them, and they should be in uniform. And further, they should carry accurate, clear and visible name tags with their designations on them.

6. Before visiting the other state, the police officer must contact the local police in whose jurisdiction he has to conduct the investigation. And, he must carry translated copies of the FIR and other documents in the language of the state he is going to visit.

7. After reaching the destination, the police officer must seek assistance and cooperation from the concerned police station. The SHO must provide legal assistance to the other state’s police, and an entry for the same must be made at the said police station.

8. After reaching the place of investigation, the police officer must search if anyone is to be strictly conducted as per the guidelines given under section 100 of the Criminal Procedure Code. The police officer must make sure to assemble all the independent public witnesses from the neighbourhood.

9. The police officer must follow the procedure given under sections 41A, 41B, 50 & 51 of CrPC. And the process of arrest must be carried out keeping in mind the guidelines given in the DK Basu case, 1996 and the provisions of CrPC.

10. An opportunity to consult a lawyer must be given to the arrested person before he is taken out of the state.

11. Before returning, the police officer must visit the local police station, and an entry in the Daily Diary must be made indicating the name of the persons being taken out of the state. Articles (things) must also be mentioned in the Daily Diary if any is recovered. And, the victim’s name must also be given.

12. Transit remand must be obtained after producing the arrestee in front of the nearest magistrate. And the arrestee must be produced in front of the magistrate before 24 hours.

13. The magistrate must grant transit remand after thinking psychologically and not mechanically. He must make sure that the requirements of section 41(1)(b) of CrPC are satisfied, and he must set out reasons for his decision briefly.

14. The arrested person must be informed of the grounds of arrest as soon as possible. The magistrate must ensure the arrested person is provided to consult and be defended by a legal practitioner of his choice. Also, the magistrate should ask the arrested person whether he has been informed about the grounds of arrest and if he wants to consult a legal practitioner.

15. Control rooms must be established in every district, and names and addresses of the persons arrested must be displayed along with the designations of the police officers who arrested them. And, the control rooms at the state level must obtain details of the persons that are arrested.

16. The police officer must form an arrest memo specifying the time and date of arrest and the name of the relative or friend to whom the information of arrest is given.

17. If possible, the arrestee must be allowed to take his family member to remain with him till the time he is produced before the jurisdictional magistrate.

18. In any case, the arrested person must be produced at the earliest before the Jurisdictional Magistrate (within 24 hours of the arrest, excluding the time of the journey).

19. The police officer must make an arrival entry in the record after arriving at the police station. He must specify the investigation carried out by him, the persons arrested and the articles recovered in the entry. Further, he must also inform the concerned SHO or senior police officer about it immediately, and the senior police officer shall personally supervise such investigation.

20. The arrest should be made under section 41(1)(b) of CrPC by the police officer when he has reasonable suspicion and credible information. The materials produced by him must be sufficient to cause a bonafide belief.

21. Medical examination should be conducted at the earliest after the arrest so that the possibility of physical torture during the custody be avoided.

22. The police officer must maintain a detailed case diary with him specifying the investigations done by him.

23. The vehicle logbook used for transportation must be maintained and signed by the police officer making the arrest. He must specify if the vehicle was official or private, the name of the driver and how it was arranged. Priority must be given to official vehicles only.

24. The Public Prosecutor should provide the possible and required assistance to the police officer visiting his state during transit remand.

25. For the speedy, smooth and effective inter-state investigation, guidelines of the exact nature should exist in all the states and union territories.

26. To create awareness, the Ministry of Home Affairs (MHA) or the state government should circulate the rules or guidelines or notification from time to time.

27. Periodically, training should be given to the police officers to sensitise them. (Sensitise means to cause someone to respond to certain stimuli; make sensitive.)

28. Statement of the victim must be recorded at the earliest.

29. If the victim recovered is minor, they should be produced before the local Child Welfare Committee for a further decision concerning the custody. And, they must not be made to stay in the police station during the night hours.

What Is Inter-State Arrest and Its Guidelines
Subhashini Parihar

The Indian judicial system is an integrated form of the judicial system. There is a hierarchy of courts. At the apex is the Supreme Court of India, and the High Courts operate below the Supreme Court.

Almost every state has a High Court and is considered the topmost court at the state level. Many subordinate courts in a state work under it.

Article 214 to 231 of Part VI of the Constitution deals with the provisions of the High Court.

• Composition of High Court
• Qualification of Judges
• Tenure of High Court Judges
• Removal of High Court Judges
• Jurisdiction and Powers of High Court

Composition of High Court

Every High Court of a state or states consists of a Chief Justice appointed by the President with the consultation of the Chief Justice of India and the Governor of that state.

Along with the Chief Justice, other judges are appointed by the President as per the requirement of work. There is no specific limit prescribed for the appointment of judges in a High Court. It may vary from time to time.

Qualification of Judges

A person who is to be appointed as a judge of a High Court must possess the following qualifications:

1. He must be a citizen of India.

2. He should have ten years of experience as a judge. or

3. He should be a practising advocate for a period of ten years in the High Court.

4. No age limit is prescribed for the appointment of judges of the High Court.

5. But unlike the Supreme Court, any eminent jurist is not eligible for becoming a High Court judge.

Tenure of High Court Judges

1. A judge of the High Court holds the office until the age of 62 years.

2. A High Court judge gives his resignation to the President in writing.

3. If the President desires so and on the recommendation of parliament, he may remove any High Court judge.

4. A High Court judge is said to vacate his office when he is transferred to another High Court or is elevated to the Supreme Court.

Removal of High Court Judges

The removal of the judge of a High Court can be based on two grounds. That is misbehaviour or incapacity to hold office.

A High Court judge may be removed by order of the President only. But the President may remove a judge only when the parliament by 2/3 majority approves for the removal.

The procedure for impeaching a High Court judge is quite similar to that of a Supreme Court judge.

Jurisdiction and Powers of High Court

A High Court is the highest appellate authority in a state. It enjoys many powers like:

1. Original Jurisdiction
2. Writ Jurisdiction
3. Appellate Jurisdiction
4. Supervisory Jurisdiction
5. A Court of Record
6. Power of Judicial Review

Original Jurisdiction

It means the High Court has the power to hear a case in the first instance as an original court. Many matters are filed directly in the High Court because of pecuniary (monetary) limits, like matters related to marriage, will, contempt of court, enforcement of fundamental rights, and so on.

Writ Jurisdiction

Article 226 of the Constitution gives the High Court the power to issue writs of habeas corpus, mandamus, certiorari, quo warranto, and prohibition.

The scope of issuing a writ under Article 226 to the High Court is wider than that of the Supreme Court. High Courts in India have the power to issue writs for the enforcement of fundamental rights as well as legal rights. Whereas the Supreme Court issues only on enforcement of fundamental rights.

Appellate Jurisdiction

The High Court is the topmost court in terms of hierarchy in a state. It is subordinate to the Supreme Court but controls all subordinate courts.

The High Court of a state has appellate jurisdiction in both matters – civil and criminal.

In civil matters, an appeal can be made directly from the subordinate or lower courts if the case involves a value higher than Rs. 5000. It may be filed for an appeal on both question of law and question of fact. The second appeal lies only when there is a question of law in the judgement or order passed by the subordinate courts.

In criminal matters, an appeal can be filed if the imprisonment is more than seven years. And in cases of capital punishment, it is necessary for the district judge or the additional district judge to confirm the death sentence from the High Court before passing it.

Supervisory Jurisdiction

According to Article 227 of the Constitution, the High Court works as a supervisory body in a state. It has to supervise all the courts and tribunals in a state that come under its territorial jurisdiction. The power of the High Court is not unlimited to have unnecessary control over subordinate courts. But this power must be used by the High Court in rare cases and sparingly.

Court of Record

The High Court is a court of record under Article 215 of the Constitution. All the judgements and orders which the concerned High Court pass shall be kept as the court of record for future references. These judgments act as precedents for the lower and subordinate courts.

The High Court has the power to punish for the contempt of court:

1. If any person disregards or disobeys the High Court’s judgment, or
2. Attempts to scandalise the authority of the court, or
3. In any manner, tries to obstruct the proceedings of the court.

Judicial Review

Judicial review means examining the correctness of the legislative acts of the legislature and executive orders of both the central government and state government.

If the High Courts find it to be against the spirit of the Constitution or violative of fundamental rights or made by an authority incompetent to make it, then it is declared void.

The 42nd amendment of 1976 curtailed the power of judicial review of the High Court. But then 43rd amendment 1977 restored the position of High Court for judicial review.

Read Next:
1. Prosecution of Judges and Public Servants
2. About Supreme Court of India – Collegium, Powers, Judges

High Court – Composition, Judges, Jurisdiction, and Powers
Arushi

Strict liability and absolute liability function under the ‘no-fault liability’ principle, which says that if a person/enterprise brings any hazardous/dangerous substance of non-natural use in its premises and if that substance escapes and does any mischief, then whatever loss the other party suffers that person/enterprise shall be made liable for it.

• Rule of Strict Liability
• Ryland vs Fletcher case (important)
• Rule of Absolute Liability
• Difference Between Strict Liability and Absolute Liability

Rule of Strict Liability

The rule of strict liability was propounded in 1868 in Ryland vs Fletcher.

Ryland vs Fletcher case

Facts of the case

• Rylands and Fletcher lived in a neighbourhood.
• Rylands had mines in his land, while Fletcher had a mill on his land.
• Fletcher required a huge amount of energy to run the mill, so he decided to construct a reservoir.
• To construct the reservoir, independent contractors and engineers were appointed by Fletcher.
• No attention was paid to mine shafts while constructing the reservoir.
• When the reservoir was ready and the water was filled, the water reached the mines of Rylands through the mine shafts, due to which he suffered heavy losses and sued Fletcher for the same.
• Fletcher defended by stating that the negligence was by independent contractors and engineers.
• In the judgement delivered by the House of Lords, Fletcher was held liable for the entire loss suffered by Rylands.

Principle of no-fault liability

According to the rule, if any person brings any dangerous thing on his land for non-natural use and that dangerous thing has the ability to escape on its own and causes harm, such person shall be liable for it even though there was no negligence on his part. This is known as the rule of strict liability. Such things may be any harmful gas, water, or chemicals.

Essential of strict liability

The three essential points regarding strict liability are:

1. Some dangerous thing must have been brought on one’s land.
2. There must be non-natural use of land.
3. The dangerous thing bought must escape and cause damage.

Exception to rule of strict liability

Here are the five exceptions to the rule of strict liability.

1. Plaintiff’s own fault

The classic example would be Ponting vs Noakes. In this case, the plaintiff’s horse intruded into the defendant’s land and consumed the leaves of some wild tree and died after that. The defendant was not held liable as the damage would not have occurred if the plaintiff’s horse had not intruded on the defendant’s land. The rule of strict liability would not apply as there was no escape.

2. Act of God

Any natural event which is not predictable, controllable or preventable, damage caused by such event cannot be held liable for. In Nicholas vs Marsland 1876, due to heavy rainfall defendant’s artificial lake was flooded, due to which the plaintiff’s four bridges washed away. The plaintiff brought an action to recover the damages. It was held that the defendant was not liable as the accident was caused by an act of God.

3. Volenti non-fit injuria / mutual benefit

If two persons with common consent bring any non-natural thing for mutual benefit and such thing causes damage, either of them cannot claim damages from each other.

Related: What Is Volenti Non-Fit Injuria Under the Law of Torts?

4. Act of stranger

If any damage has been caused due to the act of any stranger on whom the defendant had no control, the defendant will not be liable under this rule.

5. Statutory authority

An act done under the authority of a statute is a defence to an action for tort.

Rule of Absolute Liability

The rule of absolute liability was laid down in MC Mehta vs Union of India.

MC Mehta case

Facts of the case

• A company named Union Carbide set up a plant in Bhopal.
• The plant manufactured pesticide and such products.
• On the night of 2nd December 1984, the plant leaked 40 tons of dangerous gas (methyl isocyanate).
• The adjoining area around the plant became a gas chamber because of which 3000 people died, and various others were injured.
• During the investigation, it was found that all the safety systems of the plant were non-functional.
• The Supreme Court decided not to follow the rule of strict liability as this would result in such industries escaping the liability for the damage caused and lost lives.

Strict liability is a concept of the 18th century. With the passage of time and evolving power of science, the rule of absolute liability was for the first time applied in the case of MC Mehta vs Union of India, also known as the Oleum Gas Leak case.

The principle laid down in the MC Mehta case by Supreme Court is as follows:

“Where an enterprise is engaged in a hazardous or inherently dangerous activity, and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity is strictly and absolutely liable to compensate all those who are affected by the accident, and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands vs Fletcher.”

Difference Between Strict Liability and Absolute Liability

1. In strict liability, any person can be made liable, whereas, in absolute liability, only an enterprise can be made liable (commercial objective).
2. In strict liability, the escape of a dangerous thing is necessary, whereas, in absolute liability, an enterprise can be made responsible even without an escape.
3. Certain exceptions are available to a person in strict liability, whereas no defences are available in absolute liability.

Read Next:
1. What Is Rule of Constructive Liability or Joint Liability in IPC
2. What Are the General Defences Under the Law of Torts
3. What Is Nuisance in Law of Torts in India?

What is Strict Liability and Absolute Liability
Nupur

The provisions governing citizenship of India are enshrined in the Citizenship Act, 1955. The Constitution of India in Article 5 to 11, only talks about as to who was citizen till 26 January 1950.

The Indian Constitution provides the power to the parliament under Article 11 to make laws and regulations about citizenship. This is the reason parliament passed the Citizenship Act in 1955.

Citizenship Act, 1955, has been amended from time to time, like in 1986, 1987, 1992, 2003, 2005, 2015, 2016, and most recently in 2019.

Amendments only make slight changes in the act. But the main provisions must be understood in order to understand the amendments.

Provisions of Citizenship Act, 1955

Citizens have privileges as well as liabilities over non-citizens in a particular territory. There are methods prescribed in the Citizenship Act, 1955, for becoming a citizen of India. They are as follows.

Methods of Acquiring Citizenship of India

5 ways of acquiring Indian citizenship are:

1. By Birth
2. By Acquisition or Incorporation of Territory
3. By Descent
4. By Registration
5. By Naturalization

1. By Birth

1. If a person is born in the territory of India, he shall be a citizen of India.

2. A person born on or after 26 January 1950 but before 1 July 1987, irrespective of the citizenship of parents. It is called jus soli (right of soil).

3. A person born on or after 1 July 1987 but before 3 December 2004. Either of the parents of the person born should be a citizen of India at the time of birth. It is called jus sanguins (right of blood or descent).

Citizenship is granted to a person on the basis of the Indian nationality of any of the parents, immaterial of the fact that at which place the child took birth.

4. A person born on or after 3 December 2004. Both the parents of the child born should be a citizen of India at the time of birth.

5. A person shall not acquire citizenship of India if any of his parents is envoy (foreign diplomat) or enemy alien or an illegal immigrant.

Note: Illegal immigrant is defined in the Citizenship Amendment Act, 2016, as any person who enters the territory of India without a valid passport, fake passport, or stays beyond Visa permit.

2. By Acquisition or Incorporation of Territory

1. If any territory or state becomes part of India, then the central government shall declare it as part of the Union of India by issuing official Gazette.

2. Many territories such as Goa, Sikkim, Puducherry, Daman and Diu became part of India, and their population became citizens of India.

3. By Descent

1. If a person is born outside India on or after 26 January 1950, but before 10 December 1992 will be considered as a citizen of India. But subject to the fact that his father must be a citizen of India at the time of birth.

2. If a person born on or after 10 December 1992 but before 3 December 2004, either of the parent (mother or father) must be having citizenship of India.

After the Citizenship Amendment Act, 2003, the government passed an order stating that a child born shall not be Indian merely because of his descent. The government mandated compulsory registration within one year of birth. Its time can be extended by the government as per requirement.

4. By Registration

1. If a person is of Indian origin, who was ordinarily a resident of India for seven years before making an application for registration.

2. If a person is married to a person of Indian citizenship and is ordinarily residing in India for seven years before making the application for registration.

3. If a person is minor and parents are a citizen of India.

4. A person who or his parents were earlier citizens of India after independence and is residing in India for a year before making the application for registration.

5. If a person is registered as an overseas citizen of India (a foreigner of Indian origin who is given a status to work and live in the territory of India) and is residing for one year before making the application for registration.

5. By Naturalization

1. Citizenship is acquired by making an application to the central government.

2. For granting citizenship to a person, the criteria of the third schedule of this act must be satisfied.

3. The person to whom citizenship certificate is to be granted must be of good character, must have knowledge of any language given in the eighth schedule of the Indian Constitution, must not be an illegal migrant, and must have renounced the previous citizenship.

4. The person must have resided (lived) in India for 11 years in the previous 14 years and one year immediately before the time of making the application.

Note: After the Citizenship Amendment Act 2019, the number of years from eleven has been decreased to five years and one year immediately before making the application. This makes a total of 6 years.

5. If the person has made a significant contribution or rendered service to the fields like science, arts, literature, human progress, the government may waive off the conditions given in the third schedule of this act.

Ways of Losing Indian Citizenship

You can lose Indian citizenship in three ways. They are:-

1. By Renunciation: A person may voluntarily renounce the citizenship of India.

2. By Termination: If a person acquires citizenship of another country, then the citizenship of India gets terminated.

3. By Deprivation: In case a person has acquired citizenship fraudulently, or is disloyal to the constitution, or helps enemy in war or within five years of the process of naturalization has been imprisoned for two years, or ordinarily resides outside for seven years.

Editors note: The above article gives detail and throws light on the provisions of acquiring and losing citizenship in the Citizenship Act, 1955. The upcoming articles would deal with constitutional provisions related to citizenship and the latest amendments in provisions of citizenship, mainly of the year 2019.

Read Next: The Citizenship Amendment Act, 2019 Explained with Pros and Cons

5 Ways of Acquiring Citizenship of India
WritingLaw

Mistake as a general exception can be understood by two sections of the Indian Penal Code, 1860. They are section 76 and section 79. The brief discussion about this topic is given below. Let us take a look.

Section 76: Act done by a person bound, or by mistake of fact believing himself bound, by law.

Nothing is an offence which is done by a person who is, 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, bound by law to do it.

Illustration: ‘A’, a soldier fires on a crowd by order of his superior officer, following the commands of the law. Here, no offence has been committed by A.

Ignorantia facti excusat, ignorantia legis neminem excusat

Section 76 of IPC is established from a well-known maxim, ignorantia facti excusat, ignorantia legis neminem excusat. It means that ignorance of fact is an excuse, but ignorance of the law is not an excuse. The mistake of fact to be an excuse must be a mistake related to a material fact that is necessary to constitute a particular offence. Mistake must be reasonable and acceptable and that it is not a mistake of law but a mistake of fact.

One can not plead the defence of mistake of fact if the act committed is illegal. Further, no one is permitted to plead for this defence if the responsible investigation reveals the correct facts. Mistake of fact is also not accepted as a plea when the act is punished by law without reference to the mind of the wrong-doer.

Case Laws:
1. R vs Tolson (1889)
2. Bhawoo Jivaji vs Mulli Dayal (1888)

Belief in good faith

A certain mistake of fact is not enough. Not every mistake renders a defence. To plead for the mistake of fact as a defence, it must be reasonable and must have been made in a bona fide belief or good faith.

Case Law:
1. Sheo Surun Sahai vs Mohomed Fazell Khan (1868): Acts that are done in moments of confusion is also preserved under section 76 of the IPC.
2. Chirangi vs State (1952)

Essentials elements of section 76 IPC

The essential elements of section 76 can be assessed as follows:

1. An act or mistake done by a person who is compelled by law in doing that.
2. Such a person believes that he is bound by law to do such an act.
3. Mistake must be related to fact and not the law.
4. The act committed must be in good faith.

Section 79: Act done by a person justified or by mistake of fact believing himself justified by law

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 a reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.

Illustration: A was being tried for stealing the umbrella belonging to B. A has pleaded that he was intoxicated at the time of taking the umbrella and mistakenly believed that the umbrella was his own. The defence is justifiable because A mistook another’s umbrella to be his own in good faith.

Section 79 of IPC provides a defence to a person who commits an offence and, because of a mistake of fact and not a mistake of law, believes himself to be justified by the law in doing it.

Case Laws:
1. Kesho Sahu vs Saligram Shah (1977)
2. State of Orissa vs Bhagaban Barik (1987)

Essential elements of section 79 IPC

The essential elements or ingredients of section 79 are as follows:

1. An act committed by a person under a mistake of fact.
2. Such a mistake must be a mistake of fact and not of law.
3. The mistake must be made with bona fide belief or in good faith.
4. The person doing the act is either justified by law or he believes to be justified by the law in doing such act.

Difference between section 76 and section 79 IPC

Section 76 deals with cases where the person under a mistake considers himself to be compelled or bound by law to act in a particular way. Although his act is a crime on the actual condition of the facts.

On the contrary, section 79 deals with cases where a person under the mistake considers himself to be simply justified or excused by the law to act in a particular way.

In short, section 76 contains legal compulsion whereas, section 79 contains legal justification.

Mistake as a General Exception under IPC
Subhashini Parihar