UP PCS-J Procedural Law Syllabus

What is a temporary injunction and the conditions for granting one under Order 39 CPC?

A temporary injunction (Order 39 Rules 1-2) restrains a party from doing an act during the pendency of the suit. The triple test is: (1) a prima facie case, (2) balance of convenience in favour of the applicant, and (3) irreparable injury that cannot be compensated in money if the injunction is refused.

When may a court appoint a receiver under Order 40 CPC?

A receiver may be appointed where it appears just and convenient to preserve property in dispute pending litigation. The court considers whether the applicant has a prima facie title, whether the property is in danger of waste, and the conduct of parties. A receiver is an officer of the court holding property for the benefit of all parties.

What is attachment before judgment under Order 38 CPC and its object?

Order 38 Rule 5: where the court is satisfied that the defendant, with intent to obstruct or delay execution of any decree, is about to dispose of or remove his property from the court's jurisdiction, it may direct him to furnish security or attach the property before judgment. The object is to prevent the defendant from defeating a future decree.

Define 'decree', 'judgment' and 'order' under Section 2 CPC and distinguish them.

Decree [S.2(2)] is the formal expression of an adjudication conclusively determining the rights of parties on all or any matters in controversy; Judgment [S.2(9)] is the statement of grounds for a decree or order; Order [S.2(14)] is the formal expression of any decision which is not a decree. A decree follows a judgment; an order may or may not finally decide rights and is generally not appealable as a decree.

What are the three kinds of decrees recognised under the CPC?

(1) Preliminary decree - declares rights but leaves further proceedings before final disposal (e.g., partition, mortgage); (2) Final decree - completely disposes of the suit; (3) Partly preliminary and partly final decree. A decree may also be deemed (e.g., rejection of plaint).

What is the difference between a decree and an order under the CPC?

A decree is passed in a suit instituted by plaint and conclusively determines rights of parties; an order may arise from a suit or an application. A decree is generally appealable; only orders specified in Section 104 and Order 43 are appealable. There can be more than one preliminary/final decree but generally a series of orders in a suit.

What does 'execution of a decree' mean and which provisions govern it?

Execution is the enforcement of a decree by the process of the court to give the decree-holder the fruits of the decree. It is governed by Sections 36-74 and Order 21 CPC (the longest order). Modes include delivery of property, attachment and sale, arrest and detention of the judgment-debtor, appointment of a receiver, and partition.

What are the modes of execution of a decree available to a court under Section 51 CPC?

Section 51: by delivery of any property specifically decreed; by attachment and sale (or sale without attachment) of property; by arrest and detention in civil prison (subject to safeguards); by appointing a receiver; or in such other manner as the nature of the relief requires.

Which court is competent to execute a decree, and what is transfer of decree for execution under the CPC?

Section 38: a decree may be executed by the court which passed it or by the court to which it is sent for execution. Section 39 allows transfer of a decree to another court (e.g., where the judgment-debtor resides or has property) on the decree-holder's application, after which the transferee court exercises execution powers.

What are the objections a judgment-debtor can raise to executions, and the bar under Section 47 CPC?

Section 47: all questions arising between the parties to the suit relating to execution, discharge or satisfaction of the decree must be determined by the executing court, not by a separate suit. However, the executing court cannot go behind the decree to question its correctness.

What is the distinction between an appeal, a reference, a review and a revision under the CPC?

Appeal (S.96/100) - a rehearing by a superior court on law and facts at a party's instance; Reference (S.113) - a subordinate court refers a question of law to the High Court; Review (S.114, O.47) - the same court re-examines its own decree on limited grounds; Revision (S.115) - the High Court corrects jurisdictional errors of a subordinate court where no appeal lies.

On what grounds does a second appeal lie to the High Court under Section 100 CPC?

Section 100: a second appeal lies to the High Court only if the case involves a 'substantial question of law'. The High Court must formulate that question and the appeal is heard on it. No second appeal lies on questions of fact or on the ground of an erroneous finding of fact.

State the grounds for review of a judgment under Order 47 Rule 1 CPC.

Review lies on: (1) discovery of new and important matter or evidence which, after due diligence, was not within the applicant's knowledge or could not be produced earlier; (2) some mistake or error apparent on the face of the record; or (3) any other sufficient reason analogous to the first two. It is filed before the same court that passed the decree.

When can the High Court exercise revisional jurisdiction under Section 115 CPC?

Section 115: the High Court may call for the record of a case decided by a subordinate court where no appeal lies, if the subordinate court (a) exercised jurisdiction not vested in it, (b) failed to exercise jurisdiction vested in it, or (c) acted illegally or with material irregularity in exercise of its jurisdiction. Revision is confined to jurisdictional errors, not errors of fact or law on merits.

What is the scope of the inherent powers of a civil court under Section 151 CPC?

Section 151 saves the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. It is supplementary, exercisable only where no specific provision covers the situation, and cannot override express provisions of the Code.

What is a 'caveat' under Section 148A CPC?

Section 148A: a person apprehending that an application will be made against him in a suit or proceeding may lodge a caveat. The court must give the caveator notice before passing any order on such an application, so he is heard. A caveat remains in force for 90 days.

What classes of criminal courts are constituted under the CrPC/BNSS, and their hierarchy?

The criminal courts are: (1) Supreme Court; (2) High Courts; (3) Courts of Session; (4) Judicial Magistrates of the First Class (and, in metros, Metropolitan Magistrates); (5) Judicial Magistrates of the Second Class; and (6) Executive Magistrates. Sessions Court is headed by a Sessions Judge with Additional and Assistant Sessions Judges.

What sentences may a Court of Session and a Magistrate of the First Class pass under the CrPC/BNSS?

A Court of Session (and Additional Sessions Judge) may pass any sentence authorised by law, but a death sentence requires confirmation by the High Court. An Assistant Sessions Judge may pass up to 10 years' imprisonment. A Judicial Magistrate of the First Class may pass up to 3 years' imprisonment and a fine up to the prescribed limit; a Second Class Magistrate up to 1 year.

What is the difference between cognizable and non-cognizable offences under the CrPC/BNSS?

In a cognizable offence the police may arrest without a warrant and investigate without a magistrate's order (generally more serious offences). In a non-cognizable offence the police can neither arrest without a warrant nor investigate without a magistrate's order; the informant is usually referred to a magistrate.

What is an FIR and which provision deals with information in cognizable cases?

An FIR (First Information Report) is the information relating to the commission of a cognizable offence given to the officer in charge of a police station and reduced to writing (Section 154 CrPC / Section 173 BNSS). It sets the criminal law in motion; a copy is given free to the informant. Information about a non-cognizable offence is recorded under Section 155 CrPC.

What are the main steps of police investigation under the CrPC/BNSS?

Investigation includes: proceeding to the spot, ascertaining facts and circumstances, discovery and arrest of the suspect, collection of evidence, examination of witnesses (Section 161), search and seizure, and on completion submission of a police report (charge-sheet) to the magistrate under Section 173 CrPC / Section 193 BNSS.

What is 'cognizance of an offence' and how may a Magistrate take cognizance under Section 190 CrPC?

Taking cognizance means the magistrate applying his judicial mind to the alleged offence for proceeding further. Under Section 190 a magistrate may take cognizance (a) upon a complaint, (b) upon a police report, or (c) upon information received from any person other than a police officer, or upon his own knowledge.

Distinguish between a 'complaint' and a 'police report' under the CrPC/BNSS.

A complaint is any allegation made orally or in writing to a magistrate, with a view to his taking action, that some person has committed an offence (excluding a police report). A police report is the report forwarded by a police officer to a magistrate under Section 173 CrPC on completion of investigation (the charge-sheet).

What is the distinction between a summons case and a warrant case under the CrPC/BNSS?

A warrant case relates to an offence punishable with death, life imprisonment, or imprisonment exceeding two years; all other cases are summons cases. Warrant cases follow a more elaborate trial procedure with formal framing of charge; summons cases follow a simpler procedure where the substance of the accusation is stated, and the charge need not be formally framed.

What is a 'charge' under the CrPC, and what is the consequence of an error in the charge?

A charge is the precise formulation of the specific accusation against the accused so he knows what he must defend. Under Section 215/464 CrPC, errors, omissions or irregularities in the charge are not material unless they have in fact misled the accused and occasioned a failure of justice.

Distinguish bailable from non-bailable offences and the right to bail under the CrPC/BNSS.

In a bailable offence bail is a matter of right and the accused must be released on bail (Section 436 CrPC); in a non-bailable offence bail is discretionary with the court/police (Section 437/439). For offences punishable with death or life imprisonment, bail is granted with greater caution and ordinarily not by a Magistrate.

What is anticipatory bail and which provision provides for it?

Anticipatory bail (Section 438 CrPC / Section 482 BNSS) is a direction that, in the event of arrest on accusation of a non-bailable offence, a person shall be released on bail. It is granted in anticipation of arrest by the High Court or Court of Session, considering the nature of the accusation, antecedents, and the possibility of the applicant fleeing or influencing witnesses.

What is the object of maintenance under Section 125 CrPC, and who can claim it?

Section 125 (Section 144 BNSS) provides a speedy, summary remedy to prevent vagrancy and destitution. A person with sufficient means who neglects or refuses to maintain his wife (unable to maintain herself), legitimate or illegitimate minor children, or his father/mother unable to maintain themselves, may be ordered by a Magistrate to pay a monthly allowance.

What must a judgment in a criminal trial contain under Section 354 CrPC?

A judgment must be written in the language of the court, contain the point(s) for determination, the decision and the reasons for the decision. In case of conviction it must specify the offence and the punishment; in case of acquittal it must state the offence of which the accused is acquitted and direct that he be set at liberty.

From whom and to where do appeals lie against conviction under the CrPC/BNSS, and what is revisional jurisdiction in criminal cases?

An appeal against conviction by a Court of Session lies to the High Court; against conviction by a Magistrate it lies to the Court of Session. There is generally no appeal in petty cases or on a plea of guilty. The High Court and Sessions Court have revisional powers (Sections 397-401) to call for and examine records to satisfy themselves as to the correctness, legality or propriety of any finding, sentence or order.