priyanka_gambhir
Forum Replies Created
- Replies
comparison:
1. Article 20(2) does not talk about the principle of the autrefois acquit whereas section 300 of CrPC deals with this principle.
2. Article 20(2) is used in a narrower sense since it leaves a doubt in our minds that whether a person can be prosecuted for the same offense on different facts or not. on the other hand, section 300 of the code clearly states that no person shall be punished twice for the same offense or on the same facts.although both the provisions deal with the principle of autrefois convict which means that no person shall be punished twice for the same offense.
The Doctrine of Part Performance which is based on the principle of equity was formed in England and was, along these lines added to the Transfer of Property Act, 1882 by means of the Amendment Act of 1929. In the law of contracts, rights are not transferred to another until the deal is finished. But if after entering into an agreement, an individual completes his part or starts his part of work which is in furtherance of the contract, he may be qualified for performance on the off chance that the other party dawdles.
Section 53A of the Transfer of Property Act, 1882 says that if an individual settles on an agreement with another and lets the other individual do some act for the furtherance of the agreement; such an individual makes equity himself that cannot be opposed on the negligible grounds of absence of formality in the proof or agreement of such an exchange.
in 1929, the Transfer of Property Act was amended and the English law of part performance turned into a piece of Indian laws. In India, the principle is utilized uniquely as a shield and not as a sword i.e., not to enforce rights as laid down by the Supreme Court in the Delhi Motors case. In any case, it must be noticed that the bothered party can either be the plaintiff or the respondent in a suit as the case may be.
Under the English Law of Part Performance,
1. There is no necessity for an agreement that is in writing or which is signed by the transferor.
2. The Doctrine is an equitable right and not a legal/statutory one.
3. It can be utilized for both; enforcing the right as well as defending the right; and
4. It makes a title in the transferee.The Doctrine of Part Performance was adopted by India from the English laws but with certain modifications, because of the following differences-
1. Under English law, as equity treats what has been done which ought to have been done, even an oral agreement is sufficient to attract the application of the doctrine. But in India, it is specifically provided that the agreement must be contained in a written document.
2. Under English law, the applicability of this Doctrine is in a wider scope than under Indian law. Under English law, the doctrine can be used for both attack and defense (a passive as well as active equity). In India, the doctrine can be used only for defense (a passive right), and no right of action is given to the transferee.
3. Under English law, any act in furtherance of the contract is sufficient to avail this remedy but under Indian law, possession of the property or any part thereof by the transferee is the must.Ans. Section 173 of CrPC talks about the report of a police officer to be submitted once the investigation is completed. This section lays out the format of the report which is prescribed by the State Government and should contain the name of the parties, the nature of information, whether the accused was arrested or not, and much more(stated under subsection 2 of section 173).
And in Section 173(8), it is stated that the police can make further investigations and then submit them as per the prescribed manner under subsection (2)-(6) of the section and forward them to the magistrate.
It was also stated in the case of J. Prabhamashiamma vs. State of Kerala 2008, that the supreme court held that the police can investigate further in the case under section 173 (8) of CrPC read with Section2(h) of the code. Even at post cognizance, up to trial, or even after trial, the investigation is permitted.A preliminary inquiry is an inquiry prior to the trial and which is done for the purpose of indicating the criminal nature of the offence or for the reason that whether the trials should start or not. Section 157 of CrPC deals with the preliminary enquiry. This section gives power to the police to report and inquire about the offence that has been committed or not. The section talks about the information that should be recorded in order to highlight that the information received regarding the offence is of the cognizable offence so that any further information regarding the same can be added to the report and hence, the police officer will be accountable for the report and the same shall be sent to magistrate. And, under section 159, If in case the police in charge convey to the court that they will not proceed with the investigation as there no cognizable offence formed or if they deny to the informant that there is no sufficient ground for investigation; in such cases, the court may direct the police in charge to proceed with the preliminary inquiry or investigate the matter; the alternative under this section is that the court may also proceed to depute any Magistrate subordinate to him. The Magistrate may direct him to make a preliminary inquiry and such inquiry will not be termed as a trial.
In Lalita Kumari v. Government of U.P. (2014) 2 SCC 1, the court said that the scope of preliminary inquiry is only to scrutinize whether the information provided to police discloses the commission of a cognizable offence o not.
FIR is described under Sec. 154 of the CrPC. It is the first information of a cognizable crime given to the police. FIR is not defined in the Code but it means information relating to the commission of a cognizable offence given to the police first in point of time. The reason for documenting an FIR is to a set criminal law into motion and not to express all the small details therein. It is not a substantive piece of evidence i.e. evidence of the facts recorded in it. A First Information Report can be used to corroborate the information under Section 157 of the Indian Evidence Act or to contradict under Section 145 of Evidence Act if the informant is called as a witness at the time of trial.
The Preliminary inquiry is basically regarding the information given to police, in order to confirm whether the information provided to police is regarding a cognizable offence or not and in order to proceed further, the police must know that the offence is cognizable offence.
Hence, it becomes necessary that a preliminary inquiry is conducted, given that registration of FIR brings with itself huge ramifications in the nature of social stigma, loss of livelihood, among other things that may significantly impact the person against whom FIR may be registered, and may also lead to non-exploration of a civil remedy.While the process of initiating and conducting a preliminary inquiry against any offences conducted by the public servant does exist (as part of the Prevention of Corruption Act and CBI Crime Manual), no central act has sought to define this concept for its application to check on incomplete disclosure of information regarding commission of a cognizable offence, as may be revealed by the victim or complainant.
