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PRELIMINARY ENQUIRY
The purpose of the preliminary investigation is not to verify the veracity of the information received, but only to determine if the information gives rise to offences classified in the penal code. The type and in which cases of preliminary investigations will be carried out depends on the facts and circumstances of the respective case. Section 157 of the CRPC deals with the preliminary investigation procedure, which states that when the police receive certain information about a crime, the police officer and the highlight of the offence is that it must be an cognizable offence. So if the police officer receives information about a cognizable crime, he is responsible for filing a report and that report is sent to the judge in that jurisdiction. Its main objective is to determine if the offence was criminal or not. These preliminary investigations can only be initiated with the consent and order of the responsible authorities. Even in cases that must be investigated in accordance with the orders of the Supreme Court and Superior Courts, Therefore, it is necessary for the police inspector to carefully analyze the material available at the time of evaluating the inspection report presented by the inspector, so as not to resort to registering a preliminary investigation in situations where ordinary cases may arise, Section 154. CrPC.FIRST INFORMATION REPORT (F.I.R.)
The term “initial information report” is not defined in the Code of Criminal Procedure. Rather, the term was only used in Section 207, which requires the judge to give the defendant a copy of the Preliminary Information Report filed under Section 154 (1) of the Code. The first report recorded by the police on the commission of a cognizable case is the initial information report, which provides information on the offense established in the criminal code.
It can be defined as follows:
• It is information that is given to the police officer.
• The information must be related to a crime typified in the penal code.
• This is the information that is first reported at that time.
• The victim of the apparent crime or someone on their behalf provides information and reports to the police.
• This is the information on the basis of which the investigation is initiated. The FIR must be in writing.
The main objective of the F.I.R. is to implement criminal law. And also to allow the police officer to investigate the crime committed and collect all possible evidence as soon as possible.A crime that does not provide a minimum sentence of 7 years cannot be treated as a heinous crime. However, in view of the aforementioned, the law does not address the fourth category of crimes, that is, crimes in which the maximum penalty is more than 7 years in prison but does not require a minimum or minimum penalty of less than 7 years. Be treated as “serious crimes” within the meaning of the law and treated accordingly until Parliament approves the matter. In the case of heinous crimes, a child under the age of 16 must follow the prescribed procedure for serious crimes; but if the child is over 16 years of age, an evaluation must be carried out within the meaning of Section 15, which establishes that the Committee must carry out a preliminary evaluation of his mental and physical capacity to commit such a crime, as well as his capacity to do facing the consequences of the crime and the circumstances in which you allegedly committed the crime, and can order a court hearing as an adult in accordance with the provisions of Section 18 (3): experienced psychologists or psychosocial workers or other experts. The provision establishes that the preliminary evaluation is not a process, but rather assesses the ability of said child to commit and understand the consequences of the alleged crime. Once it has been determined that the matter should be dealt with by the board, the procedure for the subpoena according to the Code of Criminal Procedure 1973 (2 of 1974) is followed. Section 2 (35) defines “juvenile” as a child under the age of 18. Section 2 (45) defines “petty offences” as those for which the maximum penalty under the IPC or other applicable law is a prison term of up to three years. Section 2 (54) defines “serious offences” as those for which a prison term of three to seven years is punishable under the IPC or other applicable law.
Henious offence in a laymans language can be termed as something that is extremely evil or horrible any act against the society . The Supreme Court had previously held that anybody convicted for a serious crime cannot strike a settlement with the victim as their crime is adhered as something against the society . After the recent amendment in the juvenile law it was held that the offences can be categorized into three sections i.e petty offences with a jail term of maximum three years , serious offences with a maximum jail term of three years and heinous offences like rape , murder etc with a minimum jail term of 7 years and above . In a situation where the teenager was 16 years of age and drove a vehicle that belonged to his father resulting in a hit and run case of a 32year old man . Even though the offence was a heinous offence under IPC with seven years and above imprisonment the Court decided to try the juvenile as per juvenile laws but under the serious offence category . The Supreme Court, in one of its recent judgement, has observed that in effect under Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015, an offence prescribing a max. sentence of more than 07 years imprisonment but not providing any min sentence, or providing a min sentence of less than 07 years, cannot be considered to be a ‘heinous offence’. Section 2(33) defines “heinous offences” as those for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more. Section 2(35) defines “juvenile” as a child below the age of 18 years. Section 2(45) defines “petty offences” as those for which maximum punishment under the IPC or any other law in force is imprisonment up to three years. Section 2(54) defines “serious offences” as those for which punishment under the IPC, or any other law in force, is imprisonment between three to seven years.
Cognizable offence is an offence in which a police officer in accordance with the First schedule arrest without warrant. Cognizable offences are usually serious in nature . In congnizable offences the police officer can arrest without issuing warrant . In cognizable offences police has the duty to investigate the case without seeking permission from the magistrate .Once an FIR has been filed in terms of a cognizable offence the police are legally bound to start investigating the case , collect evidence inspect the crime scenes etc. The First Information Report is filed in terms of Cognizable offences , Preliminary enquiry is only conducted whether to ascertain if the offence is a cognizable offence or not. Preliminary Inquiries usually proceed on the basis of the written statements of evidence and documents served by the prosecution. In a Preliminary Investigation all witnesses attend to give oral evidence. The Delhi High Court had promulgated that in the process of hearing a case about registering FIRs against BJP Leaders, who had delivered hate speeches and had been instrumental in inciting violence .was seen reminding the police to follow guidelines as established by the case of Lalita Kumari v. Government of UP and Ors.. The said case, sought to answer two questions, (i) Whether in case FIR is not registered immediately, then does it leave scope for manipulation by police, given that they can act on their discretion? and (ii) Whether in case complaint/information revealed does not clearly disclose commission of a cognizable offence, then whether FIR needs to be filed immediately and compulsorily? It is pertinent to note, that in case of the former, the rights of the complainant/victim stand endangered, and in case of the latter, the rights of the accused stand likewise. Registering the FIR is mandatory if information disclosed indicates the commission of cognizable offence. If the said information revealed does not disclose commission of a cognizable offence, but indicates the need for an inquiry, preliminary inquiry may be conducted, for the sole purpose of ascertaining the commission of a cognizable offence. In case the preliminary inquiry discloses that a cognizable offence has been committed then an FIR must be registered. In case the preliminary inquiry ends up closing the complaint, a copy of the entry of this closure must be supplied to the first informant forthwith and not later than a week. The same must lay out reasons in brief for non-proceeding of the complaint.
A contract can be defined as an agreement between parties holding legal importance and there are certain elements on the basis of which contract can be termed valid .One amongst them is consideration and promisee . When both parties agree to provide something of value in exchange can be termed as a consideration . A contract shall be made for a legal purpose and not for an illegal purpose. Section 2 of the Indian Contract Act of 1872 defines what promises are- When someone expresses his willingness to do (or not to do) something, he is said to make a proposal. When the other person (to whom the proposal is made) accepts the proposal, the proposal becomes a promise. Here, the person who made the proposal is the ‘promisor’, and the person to whom the proposal is made is called the ‘promisee’. Reciprocal promise plays a major role is explained in sec 2(f) of the Indian Contract Act, promises which form the consideration or part of the consideration for each other, are called reciprocal promises. The difference between the two terms can be stated as follows. While making a purchase we pay money to the shopkeeper in exchange of goods bought is an example of reciprocal promise .It can also be referred to as quid pro quo . There is a very slight difference between consideration and reciprocal promise consideration implies giving something in return to the act done whereas reciprocal promise involves giving something to the promisor by the promisee and also giving consideration to the promisee by the promisor . This can be explained with an example Mr. Nath decides to sell his house to Mr. Roy for Rs.100000 , here Rs. 100000 is the consideration paid by Mr. Roy to Mr. Nath whereas, in the reciprocal promise scenario Mr. Nath will be giving his house in return of the money that he shall be receiving from the promisee.
Indian contract act 1872 States few rules governing acceptance of an offer that include:
Acceptance must be absolute and unqualified ( section 7)
Unqualified here means unconditional which is the basic principle of acceptance. The offer and acceptance of an offer must be absolute without giving any room for doubt; i.e. the offree should assent to all the terms of the offer and not just a part of offer.
Absoluteness also means there must be no variation or reservation including any counter-offer or cross-offer. Unless there is an absolute and and qualified acceptance, first stage of negotiation has not yet passed and no legal obligation is imposed. For example
• X offers to sell his house for ₹ 50 lakhs to Y. Y agrees to accept the offer only if X buys his car for ₹ 5 lakhs.
Here it cannot be considered that Y has accepted the proposal, since it imposes a condition.
Acceptance of a proposal with conditions and reservation is no acceptance at all.
For a valid acceptance there must be Consensus ad idem, which means that both the parties to the contract should agree on the same thing and in the same sense.
Absoluteness of an acceptance is a very fundamental requirement of a contract, it makes sure that the terms and values agreed stays clear leaving no ambiguity and confusion in the minds of both the offeror as well as the offree. It also fullfills the actual purpose for which the parties entered into the said contract.Since the question above talks about acceptance and revocation from both angles, that is when it’s in transmission and when it’s complete, so to understand this question, two section of the Indian contract act have to be read simultaneously; section 4 and section 5.
Section 4 says the communication of acceptance is complete
-As against the proposer when it is put in the course of transmission to him so as to be out of the power of the acceptor to withdraw the same;
– As against the acceptor when it comes to the knowledge of the proposer
It’s important to put a lot of emphasis on the words “knowledge of the proposer”
Section 5 states that An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor but not afterwards the intimation of the acceptance has reached the offer or has been brought to his or her knowledge as a result the revocation of the acceptance must reach the offer before the initial acceptance reaches him.
In the given question the acceptance and revocation of acceptance reaches the principal at the same time and the letter of the acceptance comes in the knowledge of the proposer, completing the acceptance of proposal Therefore revocation of acceptance is considered ineffectual, for it the revocation to be effectual it should come to the knowledge of the proposer before the completion of acceptance.
Contrary to all this reasoning , in the case of Countess of Dunmore v Alexander wherein the letter of acceptance and the letter of revocation of acceptance had reached the principal on the same day, the revocation was upheld, and the case was put to an end.The Hindu Succession Act, 1956, brought about many important changes in the Hindu intestate succession of properties apart from introducing a uniform law of succession among Hindus, in the entire territory of India. Under the pre-existent law in the Hindu joint family, a coparcener could not write in respect of his interest or property in the family. But Section 30 of the Hindu Succession Act enables a coparcener to write a will in respect of his property. Secondly, on the death of coparcener, the principle of survivorship was recognised. The past sapindas relationship was totally abolished. In that place love and affection theory has come into the existence and as such both males and females could inherit the property of the deceased. The Act entitles a male Hindu to dispose of heir’s interest in Mitakshara coparcenary property by will. The Act does not apply to Mitakshara coparcenary property. But when coparcener dies leaving female heirs mentioned in class I of the Act or male relative of the claim claiming through such female relative, the property of the ancestor is subjected to rules of inheritance under the Act and the coparcenership is abolished.
A contract of indemnity is a direct engagement between two parties whereby one promises to save another from harm. According to section 124 of the Indian Contract Act 1872 says that, “whenever one party promises to save the other from the loss caused to him by the conduct of the promisor himself, or by the conduct of any other person, is called a contract of indemnity”.
Contract of Indemnity :
1. In indemnity there are two parties, one who is a indemnified and the other indemnifier.
2. It consists of only one contract under which indemnifier promises to pay in the event of certain loss.
3. The contract of indemnity is made to protect the promise against some likely loss.
4. The liability of the indemnifier in a contract of indemnity is a primary one.Contract of Guarantee :
1. There are three parties, principal debtor, surety and creditor.
2. There are three contracts between surety, principal debtor and creditor.
3. The objective of contract of guarantee is the security of the creditor.
4. In guarantee the liability of surety is only a secondary, when principal debtor default.– Juvenile Justice Act,2015 lays no producer for children under 7 years of age, if they commits an offence. However, here section 82 and 83 of Indian Penal Code is followed. Under ipc, a child below 7 years of age gets a immunity from any kind of criminal liability. Here the principle of “doli incapax” tell about the situation, where a child is unable to understand the outcome or legal consequences of his act.
– When we are talking about it child aged above 7 and below 12, according to section 83 of IPC, a child above 7 years of age and below 12 years of age can plead for the defence under this section if they commit any offence. However, it is upon the court to decide for the maturity of the child to understand the consequences of his act.– according to section 5 of Indian contract act, 1872, A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards.
– As in the specified problem there are two circumstances to act
– a) The persons receives the letter at two different time but on same day. In this scenario section 4 of Indian contract act, 1872 comes into act and the first letter received by it will only be considered. I.e. if the person receives letter of revocation first then it will be taken into consideration and if the person receives letter of acceptance first it will be taken into consideration.
– b) The person received the letter of revocation and acceptance at the very same moment. In this scenario the first letter read can be considered as the first communicated letter.-> As per Section 31 of ICA,1872, Contingent contracts are made on basis of collateral conditions. The contracts are said to contingent when the contract is dependent or conditional upon happening or non-happening of a certain future event.
–> As per Section 36 of ICA, 1872, Contingent contract made over truly impossible condition or future event is considered void. It does not matter whether the parties are aware about the degree of impossibility or not.
-> As the agreement is made over an impossible condition the agreement should fall under “void ab initio”, but in ICA, 1872 it was given a specific section (Section 36) under classification of contingent contract because of the following reasons
– 1) At the time of agreement, the degree of impossibility of the collateral conditions may be unknown to the parties.
– 2) Even though the condition is impossible, still as per the definition of Contingent Contract in Section 31 of ICA, 1872, it still satisfies collateral condition criteria.
– 3) These types of agreements do occur in real life conditions, under certain influenced condition.Before the enactment of the Hindu succession act, 1956, the succession in Hindu families was governed by the customary law followed locally and it was also influenced by the school they belong to(i.e. Mithakshara and Dayabhaga). After the enactment of the act there was a unified law for both of the Hindu schools. More over in addition to that the right of women to inherit property from Father or as widow was recognised. A fixed definite class of heir was established. In before time certain local law the heir may be disqualified to inherit the property but after the enactment of the Hindu succession act, this was abolished.
Ans) Section 76 of the Indian Penal Code lays down that nothing is an offence done by a person who is under a mistake of fact and not under a mistake of law and in good faith believed himself to be bound by the law to do so. However, we cannot hold mere forgetfulness as a mistake of fact. Anything which implies mistake as to true identities or mistake related to sensory perceptions like hearing, seeing can be held as mistake of fact. However, if the fact, in its nature is illegal then one cannot take the defence of Section 76. Thus, for example, one cannot take the defence of mistake of fact, when found taking drugs while stating that it was meant for some other person.
Section 79 mentions that nothing shall be considered as an offence if it is believed in good faith by a person to be justified by the law in doing such act. For example, A sees Z, stealing some items from a shop and for which he holds Z and produces him in the police station. However on further inspection, it was found that Z is a worker in the shopkeeper and he was replacing the damaged items with the new ones, thereby not stealing. So A cannot be held liable as he can take the defence of Section 79 of the Indian Penal Code.
Thus, in brief the basic distinction between Section 76 and 79 of the IPC is that in the former, a person believes that he is bound by the law to do an act eg- like a soldier firing at the orders of his superior whereas in the latter, the person believes that he is justified by the law to do an act eg- stopping one person from stealing someone else’s goods.Firstly, Contract of Indemnity mentions that one party promises to save the other from the loss caused by the conduct of the promisor or any other person. Whereas, Contract of Guarantee assures the performance of the promise or the discharge of liability of a third person in case of his default.
2) Secondly, under contract of Indemnity the main Liability rests on the promisor himself whereas in contract of guarantee the primary Liability rests with the principal debtor and the liability of the surety arises only when the principal debtor defaults i.e secondary.
3) Thirdly, the contract of Indemnity between the indemnifier and the indemnity holder is specific and express whereas in contract of guarantee the contract between the principal debtor and surety is implied while the contract between creditor and principal debtor is express
4) Fourthly, Indemnity contract has two parties, namely:- a) Indemnity Holder b) Indemnifier whereas a contract of guarantee has three parties:- a) Creditor b) Surety c) Principal Debtor
5) Fifthly, there is only one agreement, in case of Indemnity contract that is between the indemnifier and indemnity holder whereas three agreements take place in a contract of Guarantee like : Agreement between the surety and principal debtor, agreement between the creditor and surety and agreement between the creditor and principal debtor
6) Sixthly, Indemnity contract protects the promise from loss whereas Contract of Guarantee is for the surety of the creditor
7) Lastly, promisor cannot file suit against any third party, in case of Indemnity contract, unless and until the promisee relinquishes his right in favour of the promisor whereas the surety gets the right to file a suit against the principal debtor as and when the debt is paid off, in case of a contract of guarantee.
These are the basic differences between Contract of Guarantee and Contract of Indemnity.
