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We all are in an unprecedented situation of Lockdown. We are all got stuck in our homes away from our daily work schedule. In this situation, the socio-economic status of each individual as well as of the country as a whole is at stake. Many people are suffering from various Psychiatric problems as they don't have any income with a schedule of unavoidable expenses. So in this situation, domestic violence is increasing at a high rate. As people are frustrated of their present situation and out of these, they are creating immense unrest with their family members resulting to tremendous violence, agony, fear in the mind of those people, who are economically dependent on someone. We need to do counselling sessions and alternative way of income so that too some extent we can decrease the degree of domestic violence in the society during this unprecedented lockdown period.

SPECIFIC ATTEMPTS
Besides impossible attempts, few specific attempts are also provided under IPC, 1860. Such as Attempt to Murder (Section- 307), to culpable homicide (Section 308), Attempt to commit suicide (Section 309).

Attempt to Murder:
Section 307 of the IPC, 1860 provides for the offence of Attempt to Murder. Following requirements must be fulfilled to constitute the offence of Attempt to Murder:
1. Gravity of the offence depends upon intention of the accused to cause death. Along with intention various other factors are considered like nature of the weapon used, injury caused, medical opinion etc.
2. Accused should have actually acted to cause the death of other person.
3. His act must have reached beyond the preparatory stage.

Accused shot a person from nearby quarters causing injuries on the abdomen and left arm. It was held that from these circumstances, the knowledge that the injury caused by him would result in death could be imputed to the accused. The accused was held liable and convicted under section 307 of the IPC, 1860 .
Accused made his wife starve for many days which lead to deteriorating conditions of his wife’s life. Accused was held liable by the court stating that accused starved her to accelerate her end, though it was not the penultimate act, which if effective, would cause death .

Attempt to Culpable homicide (Section 308 of IPC):
If the person does any act with intention or knowledge and with that act he causes death of the other, he would be guilty of culpable homicide not amounting to murder.

Illustration: A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of Culpable Homicide not amounting to murder. A has committed this offence.

Attempt to commit Suicide:
There has been a long time debate whether to decriminalise it or not. There are types of approaches regarding it:
1. If the person is victim of the circumstances, then he should not be treated as an offender because he needs care and protection, counselling and not the punishment giving punishment in such cases would aggravate those circumstances.
2. It its decriminalised then people could misuse that provision.

Constituting components of Section 309IPC, 1860:
i. Accused must have formed an intention to end his life.
ii. He should have taken any step towards it.
iii. It should be more than mere preparation or he should have reached beyond preparatory stage.
It is deliberate act of the accused to cease his life. If any person is forced to do so due to any illegal act of the others then it does not remain the deliberate act and the person would be guilty under Section 309.
Constitutional validity of Section 309 IPC, 1860
Section 309 was declared as unconstitutional and an irrational provision and violative of Article 21 of the Constitution of India .
P. Rathinam dictum was reversed and a SC constitutional bench upheld the constitutional validity of Section 309 and indicated that it did not violate Article 14, 19 and 21 of the Constitution .

Hunger strike
The essential requirement to kill oneself is absent in hunger strike. It’s done for improvement, advancement or amelioration of some situation. Thus, only in cases where accused intends to preserve to the end, refuses all nourishment and reaches such a stage that there is imminent danger of death, only he can be held guilty under section 309 of the IPC, 1860.

Art 14,Art. 15 and Art.  16 r related with each other. 

Art. 14 gives 2 concepts eqality before law & equal protection of laws

Art.  15 gives protection against discrimination.. 

Art. 16 gives protection against discrimination in public employment.

Art. 14 applies to citizens as well as non citizens but Art. 16 applies only to citizens. 

Art. 15 covers entire range of state activities but Art. 16 is related only to employment. 

Hello every one, 

Fundamental rights are the most important part of Indian Constitution

It has been included in Part III of Indian Constitution

Fundamental rights r described in Art 12 to Art. 35

It is called as Magnacarta of our constitution

The concept of Fundamental rights is borrowed from U. S. constitution

There are 6 Fundamental rights which r as follows

Art. 14 Right to Equality

Art. 19 to Art.22 Right to freedom

Art. 23 & 24 Right against exploitation

Art. 25 to Art. 28 Right to freedom of religion

Art. 29,30 Cultural and Educational Rights

Art. 32 Right to constitutional Remedies

Earlier Law was classified broadly into two categories first one civil law and the second one criminal law. But the philosopher like Austin etc. are not agreed with this concept, so a globalisation approach to classifying the Law was adopted and according to that Law can be classified into the following two categories.

1.International Law

2. Municipal Law

Further International Law can be classified into two categories

1. Public Law- There is some etiquette between two countries or more than two countries that should be followed accordingly.

2 Private law - It is between any sovereign country and a party

Municipal Law is based on the Law which is in the territory of any Nation.It can be classified into three categories

1. Constitutional Law- That describes the nature of the three organs of a country, i.e. Legislative Judiciary and Executive

2. Administrative law- It describes the relationship between different government bodies. How they have to function in inter-ministerial work

3. Criminal Law- If a person intentionally or not intentionally doing any act of crime then he is dangerous to our social system So criminal Law is very Important

Apart from the above the law there is the various law that depends on place time custom etc. but the primary motive of an act should be that it reflects the spirit of the common man.

Legal Aptitude

Murder in IPC 1860


Murder Section 300 of IPC Defines the Murder Firstly, the cases of culpable homicide is considered murder, if it is committed with the intention of causing death. Secondly, If the attacker intends to make such an injury on the body which will cause death Thirdly If the attack is made to cause injury in the body which in normal cases would lead to death. Fourthly, If the person attacking is aware of the fact that his attack will cause death or will cause such bodily injury which will lead to the death of the person. Without any excuse for incurring the risk of causing death or such injury as aforesaid. Illustration 1 A shoots ‘Z’ with the intention of killing him. ‘Z’ dies. ‘A’ commits murder. Illustration 2 If ‘A’ strikes Z with a blow knowing that Z has a disease in which one blow would lead him to death, and if Z dies due to the blow, A is guilty of murder even though that blow would do nothing to a person who is in sound health. On the contrary, if A gives a blow to Z, not knowing about the disease that Z has caused a blow to lead him to death and if Z dies, then A has not committed an offence of killing him as the blow to the person with sound health would have only caused injury to the body. Illustration 3 ‘A’ intentionally gives ‘Z’ a sword-cut or club-wound. This attack would cause a death of a person in the ordinary case. Z dies thereby. A has committed murder though he might not have intended to. Illustration 4 ’ A’ without any excuse fires a loaded cannon among a crowd of an innocent person, and one of them gets killed. Though A had no designs to kill, he is guilty of murder.

Meaning of Criminal Law

Criminal Law is the law that relates to crime. These laws are made with punishment as its bearer torch to prohibit and prevent citizens of the society to take to wild and unsocial behaviour or conduct. This is to ensure the safety of citizens in the country. Criminal law, also known as Penal law, has in it, rules of punishment which are to be given for different crimes such as charging, trying, sentencing and imprisoning criminals. It regulates how suspects are investigated, charged and tried. Many laws are enforced by the threat of criminal punishment. Following are some of the more known aspects of the criminal law.

Actus Reus

In Juristic concept, actus reus represents the physical aspect of the crime. How the crime affected the victim physically and what was his conduct at that particular time is included in this. This concept may be applied with consideration of place, fact, time, person, consent the state of mind of victim, possession or even mere preparation.

Illustration: ‘A’ firing a gun to kill ‘B’. The situation here is that A fires and the bullet leave the gun. But to consider an actus reus in this matter, it is not the intention that will be rewarded but that the bullet should touch or enter B’s body and should hurt him or cause his death.

Mens Rea

Men's rea means the fact that mind accepts that you have committed a sin and it was wrong. This concept relates to the mental condition of the guilty. This concept is applied only when a person does something wrong, knowingly and voluntarily, which is forbidden by law. What was his mental condition while committing a crime, whether he was voluntarily committing the crime or was forced by circumstances or any person is looked upon in this matter. The underlying principle of the doctrine of men's rea is expressed in the Latin maxim actus non-fact reum, nisi men sit rea- the act does not make one guilty unless the mind is also guilty.

Illustration 1 A incidentally slipped and fell and unknowingly pulled B along with him which lead B to fall and he hit his head against the wall which caused head injuries, and he was declared dead due to them. Is ‘A’ guilty of murder? No, A is not guilty of murder. Though he fulfils the concept of actus reus by causing the death of B, he did not intentionally do it. Hence the cause to commit this does not exist. So he cannot be claimed guilty of the murder.

Illustration 2 A, unknowingly puts on shoes of B, considering them to be his, should A be considered a thief? No, because though he commits the crime of taking away the shoes without the consent of B, but he did not do it intentionally. He had no intention of taking away the shoes of B. Mens rea is a universally accepted principle, but it has its own extent till where is can be applied. Some laws such as Essential Commodities Act 1955, Factories Act 1948, Prevention of Food Adulteration Act 1954 etc. completely ignore the presence of this law. Exceptions Provided Under Chapter IV General Categories Mistake of Fact Section 76 of the IPC i. e. the Indian Penal Code which gives liberation to a person for any mistake committed as a fact and not under law.

Illustration 1 ‘A’, a soldier starts firing on a mob of people on the order of his superior officer. He is now, not guilty as he did so as per the commands of the law. ‘A’, an officer of a court or justice was ordered to arrest Y but believing Z for being Y, he arrested Z after much enquiry. Is he guilty?

 

Practice Question:

Legal Principle An act cannot be considered as a mistake if a person does that believing that he is to do that by law, and it is not by the mistake of law but the mistake of fact. Factual Situation ‘A’, an officer of a court or justice was ordered to arrest Y but believing Z to be Y, he arrested Z after much enquiry. Is he guilty?

1. A has committed no offence.

2. A has committed offence.

3. A has committed an offence of arresting ‘Z’ by misrepresenting ‘Y.’

4. A has committed no offence because being ordered by the court.

Correct Answer is 1.

 INDIAN TRUSTS ACT, 1882

In India, apart from Indian Trusts Act, 1882 The Bombay Public Trust Act, 1950. Rajasthan Public Trust Act, 1959 etc. were formed under Hindu Law. Similarly The Wakf Act, 1995 was formed to regulate Muslim Wakf and The Charitable and Religious Trust Act 1920 was formed to cover all religious and charitable trusts.

       Trust is an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner for the benefit of another or of another and the owner (Sec 3). The person who reposes or declares the confidence is called the “author of the trust”, the person who accepts the confidence is called the “trustee”, and the person for the whole benefit the confidence is accepted is called “beneficiary.

Some Special World/Terms used in this Chapter

Trust: Distinguished from Other Contracts

There is a fiduciary relationship between trustee and beneficiary, which is absent between parties to a contract.

Trust and Bailment: (Asked on Jun 2007) Trustee is the full owner of the property, and bailee has only possession of the property. Bailment is usually of movable property only; trust can be of movable and immovable, both.

Trust and Agency: Agency is not the owner of the property, but the trustee is. Agent act in the name of his principal, but trustee acts in his name. The agent does not create his personal liability, trustee creates.

 
Types of Trusts

1. Simple and Special: Where trustee does not have any special duty to perform, it is simple trust. Where trust is created for some particular purpose, it is special trust.
2. Written: If trust is created through a written instrument, it is written otherwise it may be oral. Trust of immovable property must be written.
3. Charitable or Religious: Where the main purpose of the trust is for the benefit of a particular person/family/caste etc., it is private trust and not charitable.
4. Public and Private: Where beneficiaries are definite and specified, it is private trust. Otherwise, it is public.
5. Express and Implied: Express trust is created by words (i.e. either orally or in writing), but implied trust is deemed from the conduct of parties.
6. Revocable and Irrevocable: Where the author has the power to cancel the trust, it is revocable trust. Sometimes all the beneficiaries also have to revoke the trust. All other trusts (like charitable or religious trusts) are irrevocable.
7. Constrictive Trust: It is neither expressed nor implied; rather it is rather it is deemed by operation of law.
8. Executed and Executory: Trust, which has been duly signed by the settler (author), is executed trust. Where the deed is yet to be signed, it is executory trust.

Creation of Trust

Sec 6 provides that trust is created by showing intention, purpose, property and beneficiaries. However, Sec 4 says that creation of the trust is not allowed if the purpose of the trust is:

    Forbidden by any law
    Of such nature which can defeat the provisions of any law
    Fraudulent
    Injurious to person or property
    Immoral or opposed to public policy

 

       Every person who is competent to contract can create a trust. Minor can also create a trust with the permission of Court. The trustee can be any person capable of holding property. However, where the trustee is required to use his discretion, the trustee must be competent to contract. To create the trust of immovable property, trust deed must be in writing and registered.
 

Certainties of Trust

Following three certainties are required to create a trust:

1. Certainty in Word: Word must be concrete. “I hope…” “I wish…” such word will not create trust.
2. Certainty in Object: Purpose and beneficiaries must be shown clearly.
3. Certainty in Property: Trust property must be set-forth property.

Duties of Trustees

1.     The trustee should follow the directions given in the trust deed.
2.     They shall verify the nature of trust property and protect the property.
3.     They must not-set-up adverse title to the trust property.
4.     They must deal with trust property with reasonable care and skill
5.     If trust property is of wasting nature, trustees can convert it into the property of permanent nature.
6.     In case of more than one beneficiary, the trustee must act impartially.
7.     Trustees must keep an accurate account at an appropriate time.
8.     They must invest the funds in the manner prescribed under Sec 20.

Liabilities of Trustee

On failure to perform duty, the trustee may incur following liabilities:

1. The trustee is liable to make good the loss if he commits a breach of trust. However, where the loss is due to fraud by beneficiaries, he is not liable.
2. He cannot set-off his rights against liabilities
3. He could be held liable for breach of trust committed by co-trustee if he himself was negligent.

Rights and Powers of Trustees

1.     The trustee has right to have possession of an instrument of trust and title deeds of trust properties.
2.     They have right to get reimbursement for all cost and expenses incurred in the administration of the trust.
3.     They have right to take advice or direction from Court for the proper administration of trust property.
4.     They can do all necessary acts to preserve and protect the trust property.
5.     They can sell the trust property if empowered by the trust deed
6.     In case of death of one trustee, other trustees can continue to act (Asked on Jun 2008).

Disability of Trustee

1. The trustee cannot renounce the trust except with the permission of Court or consent of beneficiaries.
2. They cannot delegate his power unless empowered by the trust deed. Such delegation shall be in the regular course of business.
3. They cannot exercise their discretionary powers in an arbitrary way.
4. In the absence of any contract to the contrary, the trustee has no right to remuneration.

Discharge of Trustee

A trustee is discharged:

1.     If trust is extinguished
2.     If his duties have been completed as per trust deed
3.     By any method provided in the trust deed
4.     If any other person is appointed in his place
5.     By court

Beneficiary

The person for whose benefit trust is created is called beneficiary. Any person, including minor (even unborn), can be beneficiary. The beneficiary can give-up his rights under the trust by a written disclaimer to the trustee.

 
Rights of Beneficiary

1.     Right to receive rents and profits of trust property
2.     Right to inspect trust deed
3.     Right to transfer his beneficial interest
4.     Right to have proper trustees, right to sue for execution of the trust.

The doctrine of Cy Pres

(Asked in Dec 2007 and Jun 2008) Cy pres means “near to it”. This doctrine says that where the objects of a public charitable trust, which has been original states by the author, becomes impossible or unlawful, the trust will not be allowed to fail, rather, the court can apply the trust property to any other objects near to the original objects.

For example, Mr A created a trust for treatment of cancer patients in a particular city. In the course of time, if there is no cancer patient in that city, the trust will not extinguish rather it can be used for the treatment of any other ailment.

 
Extinction of Trust

(Asked on Jun 2008) A trust is extinguished if:

1.     Its purpose is fulfilled or has become impossible
2.     Its purpose becomes unlawful
3.     Being revocable trust, it is revoked.

Revocation of Trust

(Asked in Jun 2008) The trust created by will can be revoked by will; otherwise, it can be revoked:

1. With the consent of all beneficiaries
2. By the exercise of the power of revocation given in trust deed
3. If trust is created for payment of debts, it can be revoked by the author if is purpose is not communicated to creditor.

Certain Obligations Resembling Trust

1. Where a person transfers property to another person without consideration and without declaring it as a gift or will, then another person will hold this property in trust for the first-mentioned person.
2. Where a person makes the purchase of property in the name of another person without an intention of making it gift, then the person by whose name property is bought shall be deemed to be the trustee.
3. Where the property was meant to be distributed between two or more person, but could not distribute for any reason, holder of the property is deemed to be the trustee.
4. Any person obtaining property by taking advantage of undue influence shall hold it as trustee.
5. Qualified owner (like tenant for life) is deemed to be the trustee of property.

List of Some Important Section of Indian Trusts Act