Previous year Orissa Judicial Service 2010 Procedural Laws questions paper

O. J.S.-2010

PROCEDURAL LAWS

Time – 2 1/2 Hours

Full Marks – 150

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Answer SIX questions, TWO from Section A, TWO from Section B and TWO from Section C.

SECTION – A

I. (a) What is meant by taking of cognizance of an offence by a Magistrate ? In what different manners can a Magistrate take cognizance of offences? Enumerate the steps a Magistrate shall take on receipt of a complaint, till he decides to issue a process, or dismiss a complaint against an accused. 10

(b) Specify the territorial limit within which a warrant of arrest issued from a court of Judicial Magistrate, First Class, Cuttack, Orissa may be executed. A warrant of arrest is issued from the court of Judicial Magistrate, First Class, Patna, Bihar, against a person accused is arrested in Sambalpore, Orissa and is produced before the court of Judicial Magistrate, First Class, Sambalpore. Is the said accused entitled to be released on bail by the Judicial Magistrate, First Class, Sambalpore ? Specify the law on the point. 10

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(c) Is a police report forwarded to a Magistrate under subsection (2) of Section 173 of the Code of Criminal Procedure, 1973 a complaint within the meaning of Section 2(d) of the said Code ? Explain. 5

2. (a) What are the contents of charge, as indicated in the Code of Criminal Procedure, 1973 ? What is the effect of errors in framing a charge ? When and in what circumstances can a court alter or add to any charge ? What procedure is to be followed when a charge is altered, at a stage when three prosecution witnesses have already been examined in a case? 10

(b) Enumerate the successive steps of trial of a summon case. 10

(c) Is there any bar to taking of cognizance against a public servant, who is alleged to have committed an offence, while acting or purporting to act in discharge of hi official duty ? 5

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3. (a) Narrate the circumstances when bail may be taken by a person accused of committing non-bailable offences. 10

(b) Is there any fundamental difference between the procedure prescribed in the Code of Criminal Procedure, 1973 in respect of trial of a warrant case instituted on police report and a warrant case instituted otherwise than on police report ? 10

(c) Is there any different between an accused released on bail in accordance with provisions of Section 167Code of Criminal Procedure, 1973 and an accused released on bail under the provisions of Chapter X X XIII of the said Code? 5

4. (a) Is there any difference between compounding, of an offence and withdrawal of an offence ? Are all offences compoundable ? Are all offences liable to be withdrawn in accordance with the provisions of law? Specify and discuss the law on the subject. 10

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b. What precautions shall a Magistrate take for the purpose of recording a confession or a statement in accordance with the provisions of Section 164 of the Code of Criminal Procedure, 1973 ? 10

c. Explain the significance of examination of an accused under Section 313 of the Code of Criminal Procedure, 1973. 5

SECTION – B

5. (a) What is meant by suits of civil nature ? A, an officer in the Indian Revenue Service of the Government of India is superseded and B, the officer next below A in the same service, is promoted, which, A feels is unjust and improperly done against him. What legal redress has A to vindicate his grievances in the matter ? 10

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(b) What is meant by res judicata ? What is the object behind incorporation of such a concept in procedural law ? Is it unique to civil procedure only ? What is meant by construction res judicata ? Explain with an illustration. 10

(c) How can a summons be served on the defendant, who is found to be absent from his residence at the time when the summons is sought to be effected on him at his residence and there is no likelihood of his being found at his residence within a reasonable time ? 5

6. (a) Why are amendment of pleadings necessitated ? On what ground shall such prayer for amendment of pleadings be allowed ? When shall such prayer be rejected ? If an application for amendment of plaint is rejected, what step the plaintiff may take against such an order ? 10

(b) Can a plaintiff abandon his suit against some of the defendants in respect of part of his claim against them ? What happens to such a right of withdrawal of suits, if the plaintiff is a minor ? When can a court accord permission to a plaintiff to withdraw from his suit, or such part of claim with liberty to institute a fresh suit in respect of subject matter of such suit, or such part of the claim ? 10

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(c) can any alien enemy institute a suit for any relief in any civil court in India ? Specify the procedure prescribed in

the Code of Civil Procedure, 1908 in this regard. 5

7. (a) Enumerate the differences between a decree and an order, including an order from which an appeal shall lie. What relief in law does a litigant possess, if he is aggrieved by a decree, an order, and an appealable order ? 10

(b) How and in what manner can a suit be instituted by or against the Government or public officers in their official capacity?Is there any prerequisite for institution of such a suit against the Government ? Can such requirement be dispense with in any case ? Explain the law on the subject. 10

(c) What is meant by right to lodge a caveat ? Can the life life-time of a lawfully valid caveat be extended beyond its statutory limit, with the aid of Section 148 of the Code of Civil Procedure, 1908 ? Explain your answer with reasons.

8. (a) Enumerate Five orders from which appeal shall lie. Narrate the differences between appeal made under Section 96 and Order XLI and an appeal made under Section 104 and Order XLIII of the Code of Civil Procedure, 1908. 10

(b) Answer any FIVE from the following question along with a brief explanation for such answers :-

(a) Is an order returning a plaint a decree ?
(b) Is an order rejecting a plaint a decree ?
(c) Is allowing an application for restitution under Section 144 of the Code of Civil Procedure, 190S a decree ?
(d) Is an order dismissing a suit for default a decree ?
(e) Is a decision dismissing a suit on contest a decree ?
(f) Is any adjudication from which an appeal lies as an appeal from an order a decree ?
(g) Is allowing an application for appointment of a receiver appealable ?
(h) Is allowing an application for a temporary injunction appealable ?
(i) Is rejection of an application praying for amendment of a plaint appealable ? 10

SECTION – C

9. (a) Explain the expression ‘evidence’ as interpreted in the Indian Evidence Act, 1872. Mention two parameters on the basis of which certain facts may be held to be admissible in evidence, as per the said statute. 10

b. What is meant by presumption in law of evidence ? What is its significance in law in the matter of proof of a fact ? Mention one instance when the law prescribes that the court may presume a fact and an instance when the court shall presume a fact. 10

c. On whom the burden of proving death of a person lies, who is known to have been alive within thirty years ? Explain the law on the point. 5

10. (a) What are the essential requirements of a confession to be lawful and valid ? What is the value of an extra judicial confession ? What is the value of confession of a co-accused ? What is the value of confession properly recorded, but subsequently retracted by the maker thereof? 10

(b) What is a dying declaration ? V, the victim made a dying declaration from his hospital bed, before the attending physician, implicating A, the assailant. It so happened that V survives. Will the statement of V, recorded as a dying declaration be, of any use now ? 10

(b) Does the law of evidence permit the opinions of any person to be admissible in evidence ? 5

11. (a) What is patent ambiguity ? What is a latent ambiguity ? When can evidence be given to resolve any such ambiguity ? Explain with suitable illustrations. 10

(b) Explain and reconcile the following statements :-

“An accomplice is unworthy of credit, unless he is corroborated in material particulars” and “An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.” 10

12. (a) What questions are lawful in cross-examination ? How and in what manner the credit of a witness be impeached? 10

(b) What is re-examination of a witness ? When is such re-examination allowed ? Is a party entitled to cross-examine his own witness ? If so, in which circumstances? What is the effect of such cross-examination ?