SOLVED PAPER GCL JUNE 2011 - CS NOTES

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cause being given gets justice. This writ orders the authority confining the person to give proper reasons for doing so. Articles 32 and 226 give the right to approach the Supreme Court and the High Courts for obtaining this writ. This writ is issued when a case outlining the need for such a writ is made. It ensures that no man is detained without the proper procedure being followed and without proper cause, and it keeps the authorities from arbitrary legal action. The person detained or his legal representative can move the court for this writ. This writ demands the restraining authority to present the detained person before the court with the proof that led to his arrest or detention. This allows the court to judge whether his detention was justified to begin with. 2011 ‐ June [2] Write notes on any four of the following : (i) Penalties which can be imposed on public information officer under section 20 of the Right to Information Act, 2005 (ii) Temporary and perpetual injunction (iii) Malicious prosecution (iv) Res gestae (v) Primary and secondary evidence. (4 marks each) Ans. (i) Penalties which can be imposed on public information officer under section 20 of the Right to Information Act, 2005 Section 20 (1) of the RTI Act states, “Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub‐section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty five thousand rupees. However, the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him. Section 20 reveals that there are three circumstances where the Commission must impose penalty: 1) Refusal to receive an application for information. 2) Not furnishing information within the time specified under sub‐section (1) of section 7 – 30 days. 3) Malafidely denying the request for information or knowingly giving incorrect, incomplete or misleading information or destroying information which was the subject of the request 4) Obstructing in any manner in furnishing the information. All the above are prefaced by the condition, ‘ without reasonable cause’ (as per Decision No. CIC/SG/A/2011/000217/11995Penalty Appeal No. CIC/SG/A/2011/000217 of the CENTRAL INFORMATION COMMISSION) Ans. (ii) Temporary and perpetual I njunction ‘Temporary injunctions’ or ‘interlocutory injunctions’, according to Order XXXIX of the Code of Civil Procedure, 1908, means an order passed by a court to restrain someone from doing something that would result in alienation of property, or its destruction, or when the plaintiff is in danger of being dispossessed altogether. The plaintiff needs to establish to the satisfaction of the court that the losses suffered by him would be irreversible, and of such a nature as cannot be compensated, if the injunction is not granted. Such an injunction is for a short duration of time, normally for the time taken by the court to reach a final decision. It is issued after the suit has been filed and when it remains pending. A prima facie case and balance of convenience in the plaintiff’s favor are essential to get a temporary injunction issued.
A ‘perpetual injunction’, often a ‘permanent injunction’, on the other hand, is a relief available to the plaintiff only at the conclusion of the trial. This type of injunction would be granted when the conditions that necessitated the injunction in the first place continue and are proved to be of a permanent nature. It is ordered using the final judgment. (iii) Malicious prosecution An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil. The criminal defendant or civil respondent in a baseless and malicious case may later file this claim in civil court against the parties who took an active role in initiating or encouraging the original case. The defendant in the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or prosecutor in the original case becomes the defendant. In most states the claim must be filed within a year after the end of the original case. A claim of malicious prosecution is a tort action. A tort action is filed in civil court to recover money damages for certain harm suffered. The plaintiff in a malicious prosecution suit seeks to win money from the respondent as recompense for the various costs associated with having to defend against the baseless and vexatious case. To win a suit for malicious prosecution, the plaintiff must prove four elements: (1) that the original case was terminated in favor of the plaintiff, (2) that the defendant played an active role in the original case, (3) that the defendant did not have probable cause or reasonable grounds to support the original case, and (4) that the defendant initiated or continued the initial case with an improper purpose. (iv) Res gestae Section 6 of the Indian Evidence Act, 1872 opines the inclusion of res gestae in a case as relevant facts. They can be defined as those facts that were although incidental to the main fact but were explanatory of it, and hence to be included as relevant facts. They have to form part of the same transaction in order to be included within this definition. Secondhand statements considered trustworthy for the purpose of admission as evidence in a lawsuit when repeated by a witness because they were made spontaneously and concurrently with an event. Res gestae describes a common‐law doctrine governing testimony. Under the Hearsay rule, a court normally refuses to admit as evidence statements that a witness. Traditionally, two reasons have made hearsay inadmissible: unfairness and possible inaccuracy. Allowing a witness to repeat hearsay does not provide the accused with an opportunity to question the speaker of the original statement, and the witness may have misunderstood or misinterpreted the statement. Thus, in a trial, counsel can object to a witness's testimony as hearsay. Res gestae is based on the belief that because certain statements are made naturally, spontaneously, and without deliberation during the course of an event, they carry a high degree of credibility and leave little room for misunderstanding or misinterpretation. The doctrine held that such statements are more trustworthy than other secondhand statements and therefore should be admissible as evidence. (v) Primary and secondary evidence ‘Primary evidence’ as per the Indian Evidence Act, 1872 means the very document itself, not a copy of it. The provision of primary evidence is based on the ‘Best Evidence’ principle, i.e. if there is better evidence available, then that must be provided. If the person capable of providing superior evidence supplies an inferior one, it creates an unfavorable stance against him. (Section 62) ‘Secondary evidence’ means certified or compared copies of, or counterparts of, or oral accounts of documents. (Section 63) According to Section 65 of the Act, where primary evidence can be provided, secondary evidence should not be used. It should only be given where the original document is not available because it has been lost or destroyed, or it is otherwise unavailable because it cannot easily be moved because of bulk, or because it is under the control of some public authority’s control. 2011 ‐ June [3] (a) Mention the circumstances under which refund of stamp duty or penalty may be
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SOLVED PAPER GCL JUNE 2011 - CS NOTES

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