Comments on the Judgment in Crl.A. 732/06 -- 2010 (2) KLT 163

(By Justice (Retd.) U.L. Bhat, Former Chief Justice of Gauhati High Court and High Court of Madhya Pradesh & Former President,

Customs, Excise, Gold Control Appellate Tribunal, New Delhi And Hon.Prof.National Judicial Academy, Bhopal)

 

Justice R. Basant, who wrote the recent judgment of the Division Bench of the High Court of Kerala in Criminal Appeal No.732/06, now fully reported in  (2010 (2) KLT 163 – Jose v. State of Kerala) sent me a copy of the judgment since he knew that I have been discussing with several friends, including himself, about various questions which arise in relation to the definition “proved” etc. in Section 3 of the Evidence Act. Justice R. Basant specifically sought my comments on the decision. The decision deals with answers to several other questions with some of which I find, with great respect, myself unable to agree.  The Bench has arrived at certain definite conclusions (unlike many conclusions in this paper, which are merely tentative) in regard to certain aspects discussed by me with the learned Judge over the telephone nearly one and half years ago.  I find myself, to my great sorrow, unable to agree with such conclusions. I am offering the following comments in response to the request of the learned Judge. I am seeking publication of this paper since I believe the legal fraternity should have the opportunity of reading my comments.

 

In the 39 preliminary paragraphs, the Bench discussed and accepted as proved many, if not, all of the nine circumstances relied on by the learned Public Prosecutor. Paragraph 40 poses the “short” question whether the proved circumstances are sufficient to conclude that the crucial fact alleged against the accused – that he inflicted the injuries on his deceased wife, has been proved or not.  It is axiomatic that it is for the prosecution to prove beyond reasonable doubt the elements of the crime or the ingredients of Section 302 I.P.C., which is the offence charged, including the aspect posed by the Bench, which is the “actus reus”. This was what the Constitution Bench of the Supreme Court held in M.G. Agarwal (AIR 1963 SC 200) (para.18). At the same time, surprisingly the Bench did not refer to this decision of the Constitution Bench which I placed before all my friends with whom I discussed this matter more than a year ago.  It is also referred to in my book on “Appreciation of Evidence in Criminal Cases” published by the National Judicial Academy, Bhopal, of which I have been an Hon. Professor for the last several years. The third edition of the book is published recently. Yet the Bench, after finding which among the “circumstances” stood proved, and when all that remained to do was to see if the proved circumstances constituted an unbroken chain (without any missing links) unerringly connecting the accused with the offence charged beyond a reasonable doubt (not beyond shadow of all reasonable doubt as stated by the Bench), proceeded quite unnecessarily to devote paras.41 to 87, i.e., pages 25 to 54 to various aspects arising out of the definition of “proved” occurring in Section 3 of the Act.  In a single paragraph, i.e., para. 88, the Bench found that the proved circumstances proved the guilt of accused for the offence alleged beyond reasonable doubt. The judgment would have been complete, exhaustive and self-sufficient if it contained only paras. 1 to 40, 88 and 89 and if paras 41 to 89 are omitted.

 

(a) Absolute certainty (paras . 45 to 51, 66,67) of Judgment:  On the aspects arising in relation to the definition of “proved” etc., in Section 3 of the Evidence Act, the Bench expressed opinion as follows:-

 

 “Definition of “proved” and “not proved” express two levels of satisfaction ranging from “absolute certainty” about existence of a fact to “absolute certainty”  about non-existence of a fact”.

 

My Comment:-  I have, in another paper on the definition of “proved” in Section 3 of the Indian Evidence Act, referred to Black, P.R. Aiyar as also decisions of our Supreme Court indicating that “absolute certainty” is incapable of achievement.  See para.16 to 31 of the above paper.  I have specifically quoted therein The Compact Oxford Dictionary as stating that “believe” also comprehends “to think” or  "to suppose” while the Bench quoted in para. 67, the New Oxford Dictionary as stating that the first meaning of “believes” is “accept as true” or “feel sure the truth of” without quoting the other meanings.  It seems the two Oxford Dictionaries point to different directions.  So the Bench would have done well to refer to authoritative legal dictionaries like Black and P.R. Aiyar and also explanations offered in various decisions in India and abroad.  “Belief” or “Believes” definitively indicate wide range or levels or degrees of persuasion as I indicated.  How can there be “absolute certainty” in the matter of conclusions on appreciation of evidence?

 

(b) Paras. 52 to 57 and 72 of Judgment (summarized as follows): “The definition indicated two standards of proof because in 1872 when the statute was enacted, there was jury trial in India, the standard of “belief or believes” occurring in the first part of the definition which involves technicality and requires a trained legal mind to appreciate it, was intended only for “Judges” and the standard of “preponderance of probability”  contained in the second part of the definition, being easier for ordinary lay persons (not learned in the law) to understand was the standard which only the lay jury of olden times was to adopt.  The two parts of the definition are intended to relate to two different kinds of trials, the first part being applicable in cases of trials by Judges without the aid of jury and the second part being applicable in cases of trial by Judge with the aid of jury. In other words, the two parts of definition are in two separate cast-iron compartments, one for the Judge and the other for the jury".

 

My Comment:-  This view completely ignored the fact that in case of trial with the aid of jury, the Judge would be legally bound to instruct the jury on the “law”.  In fact, the decisions are a legion in U.K. and U.S.A. which even deal with specific words to be used by Judges in such instructions.  The Bench did not answer the question why the standard of “relatively certain” mentioned by P.R. Aiyar should not be treated as the ideal or correct standard.  

 

Para 72 contains a question “Is not a Judge a prudent person”?

A Judge need not himself be a prudent person.  He must think like a prudent person and decide what a prudent “ought” to do under the circumstances.  Then why did the Bench say the second part of the definition was intended for the jury, to the exclusion of the “trained Judge”?

 

(c) Paras. 45 and 49 of Judgment:- These paras refer to “range” of “satisfaction” postulated by two different definitions, i.e., definitions of “proved” and “not proved”.  

 

My Comment:-  The Bench did not consider if “belief” or “believes” themselves inhere ranges or levels or degrees of “persuasion”.  This significant omission has led the Bench to unknown and even precarious terrain.

 

(d) Paras. 54, 56, 57 of Judgment:-  The Bench stated “belief” or “believes” inhere such a complicated a  notion that it needs to be applied only by a Judge with a trained legal mind while  “preponderance of probability” which is propounded in the second part of the definition can be easily understood and applied by a common man or a lay juror.  

 

My Comment:-  A more careful application of mind would have convinced the Bench that the correct position is exactly the converse.  Every single day of his or her life, a lay person or a common man listens to so much information and instinctively and immediately decides whether he or she should believe it or not.  For example, A tells B that while A was coming to B’s house, he saw an incident or event which he describes to B.  B either ‘believes’ it immediately without much ado or reserves judgment saying “oh, is it so?”, depending on the degree of trust or absence of it which he has regarding A’s truthfulness and sincerity.   Every human being, every day of his life, renders such judgments instinctively.  But can he or she understand the real implications of the standard known as “preponderance of probability”.  It is a complicated standard which a “common man” may have difficulty in comprehending.  If the test is which is simpler, the answer could only be that the first part is simpler (because of absence of guidelines) than the second part. Hence the argument that first part relates to Judge and second part relates to jury is fallacious.  No statutory definition can be understood as indicating that one part applies only to Judges and the other part applies only to jury persons.  Does it mean that with the abolition of jury system, the second part has become otiose? The second part (meaning preponderance of probability) is mentioned by Supreme Court and all High Courts as the standard to be applied in civil cases and in proof of defence of accused in criminal cases.  Civil cases, in India, were never decided with the aid of jury.  So, are we to believe that this standard stood abolished with the abolition of jury system in criminal cases in India? If so, what is the standard of proof postulated by the definition in civil cases and defences raised by accused?

 

(e) Para. 56 of the Judgment:-  In spite of the finding referred to above, the Bench stated, dealing with “belief” (which according to it applies only to Judges), that the Judge is not to go only by his training, experience and trained intuition and he has always “got to cross check” his conclusions about existence or non-existence of a fact with the norms of a prudent person in the community.  

 

My Comment:- This was indeed a de-facto rejection of the earlier stated view of the Bench that the legislative scheme was that the first part “believes” could apply only to a Judge and the second part (preponderance of probability which a prudent person ought to act upon) could apply only to a jury. How can a Judge stealthily use the second part of the definition and crosscheck (what his belief told him)  with the norms of a prudent man (it is not a norm of a prudent man, but a norm which a prudent man ought to adopt which makes the second part free from subjective influences in a large measure)?  Does this mean that Bench shared my view that the standard in the second part is explanatory (as, “that is to say”) of the standard in the first part.  If so, I am satisfied.

 

(f) Paras. 52 and 56 of the Judgment:-   These paras spoke of the jury system as amounting to exercise, through common people, of sovereign judicial power.  

My Comment:  The jury system has its’ origin in the concessions forcibly wrested from the King of England and from the religious leaders by the Kings’  nobles who demanded “trial by peers” of nobles suspected of serious offences.  The system of trial by peers replaced the system of torture and “bloody” inquisition.  With the democratic aspirations of people of England rising, idea of trial by peers was made applicable to all people (common man included) of England.  Members of jury came to be selected from a sample of common humanity, subject to certain standards.  It is not a delegation of sovereign power by a Constitution to the people.  It was the development of a “right” wrested from the British sovereign.

 

(g) Paras. 64, 65, 74 of the Judgment: The Division Bench opined that the use of the words “either” in the definition is decisive, that the Bench has to assume that the Legislature was competent in grammar and semantics, and at least in 1872, they must to be firmly assumed to be so.

 

My Comment:  Any authoritative text book on Statutory Interpretation as also decisions of the Privy Council, House of Lords and Court of Appeal in England are replete with references to cases in which these high judicial bodies, dealing with statutes of England and British colonies, held words in many statutes to be redundant or surplusage.  There are such reported decisions of the 19th and 20th centuries, if not earlier. See Justice G.P. Singh’s “Principles of Statutory  Interpretation”,  8th  edition  pages  65,  66,  69  and  Salman  v. Duncambe  ((1886) II A.C 627) C.P.C., M.C Mongala v. W.M. City Council ((1990) I All. E.R. 993 (H.L)).  It is true that courts will not start from the assumption that Legislatures commit mistakes. But Legislatures are not beyond committing mistakes. Whether a statutory provision contains such an error is a delicate question to be decided by the interpreting court after due deliberation and without any preconceived notions. I have attempted to do so in my paper on definition of “proved” to the best of my ability and in the light of my own experience in the field of law for about fifty five years.  The flaw in the Division Bench judgment is, with great respect, the risky assumption that “belief” or “believes” has only one degree or level of persuasion, ignoring the range of such degrees or levels of satisfaction inherent in the expressions.    

 

(h) Paras.  67 and 68: The Bench opined that the definition provides sufficient guidelines for effectuating the idea of “believes” and the “language itself” contains sufficient “guidelines” that the requirement that the court consider the “matters” before it furnishes adequate “guidelines” which renders it free from arbitrariness since the court must give reasons why it believes in the existence or non-existence of a particular fact.

 

My Comment: I have already dealt with this aspect in the separate paper referred to above. The requirement of “consideration of matters before it” applies to both parts of the definition, i.e., “belief” as also to “preponderance of probability”. “Matters” only refers to oral and documentary evidence, presumptions etc. These, of course, are required to be borne in mind while deciding on the existence of a disputed fact either on the basis of “believes” or "preponderance of probability”. The second part by itself provides guidelines in referring to “so probable” “prudent man” and “ought”.  Therefore to say that the Legislature has furnished guidelines for “believes” by referring to “matters before it” is not correct.   The words “belief” or “believes” carry a high degree of subjectivity, if the Judge is not to consider the “high degree of probability” contemplated by the second part, while evaluating “believe” or “believes”.  That is one of the reasons for my conclusion that the second part is explanatory of the first part.  This is fully supported by the observation of the Division Bench in para. 56 that even while deciding whether “to believe: or not the existence of a fact”, the court has to cross check its’ conclusions with the norms of a prudent man, which is the norm described by the second part.  Para. 56 obviously means that any conclusion regarding the existence of a fact must satisfy both parts of the definition!  That would be beyond all commonsense and contrary to the conclusion of the Bench that the first part of definition contemplates a higher level of satisfaction applicable only to trained Judges and the second part contemplates a lower level of satisfaction applicable only to the common humanity unlettered in the law.

 

(i) Paras. 69 to 71 of Judgment:  The Bench dealt with the argument (whose?) that there can be no specific instance of where the first part of the definition will be satisfied but not the second part and observed that this proposition is only a theoretical possibility and moves away into a strange attempted geometrical demonstration and stated that ones’ inability to specify an illustrative case was of no significance.

 

My Comment:-  The above reveals the fallacy and weakness in the argument and the conclusion of the Bench.  Why was the Bench unable to give an illustration where the first part of the definition is satisfied but not the second part? The Bench could not furnish even a theoretical illustration, which shows that in propounding the theory that the definition provided two distinct standards or standards for two distinct kind of adjudications the Bench was skating on thin ice.   

 

(j) Para 75, 76 and later paras in the Judgment: At several places, the Bench referred to standard of proof of guilt as “proof beyond a shadow of reasonable doubt”.  Flourish of language may be an asset in a Judge, but it may not be at the expense of accuracy of expression.  Both in civil and criminal cases in India and U.K., the sole standard employed of proof of existence of fact in issue and relevant or basic or primary facts in civil and criminal cases is “preponderance of probability”.  Judges in England and India, besides going by this standard, introduced a measure of caution by insisting that, in criminal cases and only in criminal cases, because such cases may result in loss of life or liberty of citizens, the elements of the crime or ingredients of the offence or essential facts in issue arising out of the charge, should be proved as in all cases but beyond “a reasonable doubt”.  Courts in USA recognized this salutary principle of law as emanating from the Common Law of England (principles of which were broadly followed by courts in India) and the due process clause introduced by the XIV Amendment to the Constitution of U.S.A.  Why use the word “shadow”?  Of course one can find a few stray sentences in a few judgments of our Supreme Court using the expression “shadow of doubt”, which may be the result of a flourish as found in the judgment of the Kerala Division Bench. Judges, particularly of superior courts, must employ accurate expressions conveying accurate and precise thoughts.  According to Chambers 20th Century Dictionary, “shadow” means: -

 

“shade cast by the interception of light by an object; the dark figure so projected on a surface, mimicking the object;.......”

The dictionary gives the following meanings for “object”: -

“a thing presented or capable of being presented to the senses; —————a material thing;”

The dictionary gives the following meaning for “substance”: -

“————body; matter; ——solidity, body; solid worth”

  The following are the meanings of “substantial”: -

“of or having substance; being a substance; essential ——— actually existing; real; ————— of sound worth ———”               (emphasis supplied)

 

A reasonable doubt, as explained in countless decisions in courts following the basic pattern of English Common Law (as we do in India, except to the extent modified by statute law or by our Supreme Court) must be a real and genuine doubt arising from the evidence or lack of it and not an imaginary, or fanciful doubt.  The expressions “shadow of doubt” or “shadow of reasonable doubt” suggest that courts in India, at any rate, give the benefit of a  doubt which is a mere shadow and not substance or substantial or a mere unreal or fanciful doubt as opposed to a real or substantial doubt.  To me the expression “shadow of reasonable doubt” is a contradiction in terms.  Shadow as opposed to substantial, and unreal as opposed to real could never be regarded as a “reasonable doubt”. In my book published by N.J.A (third edition) at pages 26 and 27, I quoted Lord Denning as having pronounced that proof beyond reasonable does not mean proof beyond a shadow of doubt! See Woodroffe and Amir Ali, Law of Evidence at page 289.

 

(k) Para. 78 of the Judgment:  The Bench stated that where life and liberty are involved, as a prudent person and true to the definition of “proved” and ‘not proved’ and conscious of the latter part of the definition, courts /prudent persons insist on a higher degree of satisfaction  in a criminal trial.

 

My Comment:- If the legislative intention was to furnish the second part of the definition (preponderance of probability) as the standard only for the jury and the first part as the standard only for the trained Judge, in exercising his function of deciding whether a disputed fact is proved or not, why should he, the Judge, be conscious of the second part of the definition?  Was the Bench unwittingly echoing the stand of some unidentified jurists (para. 61), equally unidentfied protagonists (paras. 63, 66, 70), “grievances” of unidentified persons (para. 68) and arguments raised (not by the lawyers appearing before the Bench apparently, but some unknown jurists or protagonists) that the second part of the definition is only explanatory of the first part?

 

(l)  Para. 72 of the Judgment deals with certain “queries” without indicating who put the queries.  

 

My Comment: Certainly not the counsel appearing since the para did not refer to any submission made by appellant’s counsel or Public Prosecutor. It is clear that the questions were put not during the stage of arguments or by the counsel arguing for the two parties. So the queries were more imaginary than real! The judgment also does not show that to decide the important question of interpretation of the definition clause, for which, according to the Bench, there was no worthwhile precedent (para. 87), the court invited the assistance of the Advocate General or senior advocates having expertise in the field of civil or criminal law or law of evidence.  In later paragraphs, the Bench read the requirement of “proof beyond a reasonable doubt” into the definition (see paras. 81 to 86), ignoring the long legal history spread over a few centuries that the requirement was introduced by Judges in England, India and U.S.A. and was not introduced by the Legislature.

 

(m) Para. 74 of the judgment: The Bench observed that it is one of the axiomatic principles of interpretation that no words used by the legislation can be assumed or inferred to be unnecessary or redundant.

 

My Comment:  If the word “axiom” was borrowed from any standard work on interpretation of statutes, the Bench would, in the same book, have come across several instances where superior courts did disregard words, indeed several words in statutes.  Of course courts ordinarily do not disregard words, but, if in the context, it becomes necessary to do so, courts do not hesitate to do so.  This was what apparently the Bench meant by saying in the previous sentence that superflousness and redundancy (why both?) cannot obviously be attributed to the Legislature unless the interpreter is “driven to the wall”, and then refer later to a so called “axiomatic principle” regarding an “assumption” or “inference”?  No court will “assume” that certain words crept wrongly into a statutory provision; but courts can very well hold that is the conclusion on the basis of the various reasons the court marshals in a particular instance.

 

(n) Para. 75 of the Judgment: The Bench held that there was no warrant for the proposition that the part of the definition (preponderance of probability) does not apply to criminal cases and shall apply only to civil cases; the Bench took the view that both parts (if they are regarded as alternatives) apply to civil and criminal cases.

 

My Comment: The above view is, with respect, correct, but not, with great respect, the reason given, namely if the proposition rejected by the Bench were true, there could never have been a jury in a criminal trial! I have already expressed my view that the earlier segregation and allotment by the Bench of first part to the trained Judge and the second part to the jury consisting of ordinary persons is not correct.  The correct reason is that, assuming that the two parts postulate two alternatives (and rejecting the view that there are no two alternatives and the second part is merely explanatory of the first part), the provision does not state expressly or indicate by implication that one of the parts applies only to civil cases and the other only to criminal cases.  Supreme Court has held in decisions referred to by me in the separate paper referred to earlier that the definition (i.e. the entire definition) applies to both civil and criminal cases. In C.H. Razik Ram v. C.H. Jaswant Singh & Others ((1975) 4 SCC 769), the Supreme Court held, inter alia, that there is no difference between the general rules of evidence in civil and criminal cases and the definition.

 

The Bench also did not clarify who placed before it the curious proposition that the second part of the definition applies only to criminal cases.

 

(o) Paras. 76, 77, 78 of the Judgment: The Bench stated that it is queried how does one support the additional requirement in criminal cases of “proof of charge beyond reasonable doubt” while in a civil case, mere proof by “preponderance of probability” is sufficient ,when both cases are governed by the same definition.  The answer is seen offered in paras. 77 and 78.  The answer is that depending upon the consequences which are likely to follow, different standards will be adopted by a prudent person.  Criminal trial can result in deprivation of life and liberty of the accused.  Hence it is only reasonable that a prudent person would insist on a higher and better degree of proof, while remaining true to the definition.

 

My Comment: The above indicates the premise that the definition requires the guilt of an accused in a criminal trial must be proved “beyond reasonable doubt”.  This, with great respect, indicates an erroneous view of the evolution of the doctrine of benefit of doubt, which doctrine, the Bench suggest is incorporated or inherent or implied in the definition (or is it only the second part of the definition as repeated references to prudent person in the above quoted conclusion indicates).  The doctrine of benefit of doubt was evolved by Judges in England in criminal cases as a measure of satisfaction of proof of guilt of the charges.  Judges in India merely followed the tradition, de hors the definition.  Doctrine of benefit of doubt as indicated in M.G.Agarwal’s case is applicable only at the stage of drawing an inference of guilt on a consideration of the facts “proved”.  Proof of ‘facts’ (other than elements of the crime or ingredients of the offence) is governed entirely by the definition, irrespective of any view a person may hold whether the two parts spell out two alternatives or whether the second part is explanatory of the first part. See also pages 19 to 24 and 49 to 52 of my above referred book published by N.J.A (third edition).

 

(p) Paras. 80, 81 of the Judgment: The Bench stated that jurors, persons of lay common sense may be “bowled over” by their emotions and sentiments and disapproval against criminal conduct, may upset their emotions and may affect their rationality and detachment.  Hence courts have always cautioned the jury to look for satisfactory evidence before returning a verdict of guilty in a criminal case.  This caution may not be necessary to administer in cases of Judges with training, experience and trained intuitions.  But it is essential in the case of a jury.

 

My Comment: The Bench did not consider the case of new Judges or inexperienced Judges who have no worthwhile training, experience or legally “trained” intuitions!

 

(q) Para. 81 of the Judgment: The Bench referred to proof of “fact”, when jury is associated with criminal trial.  Judges tell jury that jury must insist that a fact is proved beyond reasonable doubt.  This would be superfluous since a fact can never be proved if there is a doubt.  To fall within the sweep of expression “proved” (and “not proved”), there must be no doubt (geometrical line AB drawn by the Bench in paras 46, 47, 48, 49 i.e. A———————B——————C—————————D, AB representing absolute satisfaction or absolute certainty of existence or non-existence of a fact, AB representing definition of “proved”, CD representing definition of “disproved”, BC representing definition of “disproved”.  To refer to a fact as proved, the level of satisfaction must fall within AB only.  “Disproved” represents level of satisfaction falling within only CD.  Satisfaction in the three instances AB, CD, BC represent not a single point, but a range of satisfaction.

 

My Comment: That any “fact” is required to be beyond reasonable doubt is not the requirement of the definition of “proved” or “disproved”. Basic or primary facts are required to be proved in the “ordinary way”, according to M.G.Agarwal.  By ‘ordinary way’, the Constitution Bench intended the way prescribed in the definition.  The Constitution Bench made it absolutely and utterly clear that the doctrine of benefit of doubt does not apply at the stage of proof of basic or primary facts.  This doctrine is the inevitable byproduct of the requirement of “proof beyond a reasonable doubt”.  This requirement, according to the Constitution Bench arises only in the next stage of drawing inference of guilt as the basis of “proved facts”.  When the question arises whether proved facts lead conclusively or unerringly to the inference of guilt of accused for the charged offence, existence of any “reasonable doubt” must lead to acquittal as he is entitled to “benefit of doubt”.  These statements can be better appreciated if the reader consider a case entirely of circumstantial evidence.

 

The Division Bench was, with respect, in serious error in concluding that every fact (which includes basic or primary facts as opposed to inference regarding guilt) is required to be proved beyond a reasonable doubt.  Thereby the Division Bench rendered the “doctrine of benefit of doubt” squarely applicable to even “basic or primary facts”.  This was in clear violation of the law as explained by the Constitution Bench.  It is a matter of surprise to me that neither counsel referred the Bench to this classic decision of the Constitution Bench and that the Bench itself did not discover the decision after due research, particularly since it is referred to in my earlier referred book published by N.J.A, Bhopal.

 

The Bench, with great respect, has misled itself by importing into the definition the concept of ‘benefit of doubt’. When the court proceeds to consider proof of any disputed fact, court will not think of importing the doctrine of benefit of doubt into the mental exercise.  Doctrine of benefit of doubt is the creation, pure and simple, of Judges in the common law tradition to be invoked only and not before the final stage of considering whether the facts proved according to the definition must necessarily lead to the conclusion that essential elements of the crime or ingredients of the charged offence are proved beyond reasonable doubt.  Even in cases governed entirely by eye-witness testimony, the first question is whether the testimony is satisfactory and acceptable; if so, the second question is whether the accepted evidence proves beyond reasonable doubt the guilt of accused (essential elements of the crime or ingredients of the offence). This requirement of proof beyond reasonable doubt is, as already stated, the creation of Judges and not traceable to the definition. Doctrine of benefit of doubt, if it is inherent in the definition, must apply to civil cases also.  No common definition can be understood as meaning one thing in criminal cases and another thing in civil cases.  Doctrine of benefit of doubt is outside the structure of the definition.  That was why Judges had to create the doctrine in reference to criminal cases, as an additionality to the requirement and outside the structure of the definition.

 

Geometry has, with respect, led the Bench astray AD, AB, CD, AB in the line (born out of the definition according to the Bench since it cannot be imported from outside the definition) must necessarily apply to both civil and criminal cases, which is clearly unacceptable.  Soliloquy referred to in the para, namely “I have a doubt, but I hold the fact to be proved” is totally pointless, as it is the result of asking wrong question at the wrong time.  Assuming the two parts of the definition are alternatives, the only question which a Judge or jury ask themselves is “is the fact (or, are the facts) established either because I believe in it or by reason of preponderance of probability?”  Assume that in answer to the self-question the Judge’s or jury’s answer is yes, that is sufficient for a civil case.  In a criminal case, the Judge or jury leaves the definition, and remembering the Judge-made injunction that essential elements of the crime or the ingredients of the charged offence require to be proved beyond a reasonable doubt, asks the important question – Are the facts proved as per the definition sufficient to prove beyond a reasonable doubt the essential elements of the crime or the ingredients of the charged offence?  This is the right approach flowing from principles established in the common law and followed in India, outside the frame work of the definition, an illustrative example of which is seen in M.G.Agarwal.

 

The fundamental flaw, if I may so with great respect, committed by the Division Bench lies in treating the doctrine of benefit of doubt (which is a Judge-made requirement outside the requirement of the definition) as inherent in and part of the definition.  Other errors flow from this basic flaw, though the latter was attempted to be softened in one of the later paragraphs.  This is conceded by the Bench in para. 85 by stating as follows: -

 

“—————though it is not strictly necessary going by the definition, a prudent person is likely to insist on a higher standard of proof in a criminal indictment to hold that the fact is proved.  Here comes the concept of benefit of doubt”                                (Emphasis supplied)

 

This is a concession that the doctrine of benefit of doubt does not arise at all from the requirements of the definition.  That is precisely what I have been endeavoring to establish, in my own way.  After stating as seen in the above quotation, the Bench asserted, and asserted erroneously, that this higher standard of proof is “inherent in” and is “inbuilt in” and “is justified” by the definition itself!  The statement which follows is indeed surprising, namely:-

 

“The latter half of the definition inheres in itself the elasticity which justifies insistence on higher degree of proof in a criminal case.  That is what a prudent person would do and the latter half of the definition permits adoption of the prudent man’s standards.”  (Emphasis supplied)

 

The above passage and repeated references to “prudent man’s standards” and “latter (second part) half of the definition” makes it clear that the higher degree of proof (i.e. beyond a reasonable doubt) is the creation, not of courts in England, India and USA, but of the creation of the “prudent man”!  The necessary corollary is that the higher standard and doctrine of benefit of doubt are not applicable to the first part of the definition which is the exclusive preserve of the “trained, experienced Judge”. The Bench also postulated that the definition drew a distinction between civil cases, which has been negatived by the Supreme Court in C.H.Razik Ram  ((1975) 4 SCC 769).

 

Para. 87 of the Judgment: In this para, the Bench explained, the length of the judgment to the lack of specific precedent.  Besides M.G.Agarwal, there are at least two other decisions of the Supreme Court covering the aspect of “proof”, namely, Balu Sonba Shinde (AIR 2002 SC 3137) (para. 4) and Kishore Chand ((1991) I SCC 286) referred to earlier.  It is unfortunate that existing precedents were not brought to the notice of the Bench, which also did not think it necessary to investigate despite the reference to some of them in my book (NJA) on “Appreciation of Evidence in Criminal Cases” available with several Judges in Kerala, the High Court Library and the Judicial Academy of Kerala.

 

In the preliminary paragraphs up to para.39, the Bench decided which of the 9 cricumstances relied on were proved.  Paras. 40 to 87 were devoted to the definition of “proof” etc.  Thereafter in a single para.88 (in which the conclusions of the Bench in paras. 40 to 87 were not adverted to or used) the bench held that circumstances clearly proved beyond a reasonable doubt the actus reus, i.e. that the accused caused the stab injuries on his wife and without considering possible inferences regarding mens rea, upheld the conviction.

 

It is my considered view that this decision has resulted in failure of justice according to law; this, despite the fact that I hold my parent High Court and particularly, Justice R. Basant, in highest regard. Let me assure the readers that writing of this paper did cause me great pain.

 

Before concluding, let me advert to a few portions of my book on “Appreciation of Evidence in Criminal Cases” published by the National Judicial Academy, Bhopal (2010 revised 3rd edition).

 

Pages 6, 7, 8: “Test of proof is the test of probabilities upon which a prudent person may base his opinion; in other words, it is the estimate which a prudent man makes of the probabilities,—————— Such degree of probability as would satisfy the mind of a reasonable man as to the existence of a fact i.e., preponderance of probabilities”.

 

*  * *  *  *  *

 

“If the evidence led by plaintiff in a civil case establishes preponderance of probability in his favour, he has to succeed though there may be some factors against him emerging from the evidence.  Plaintiff succeeds on account of the preponderant nature of the probability in his favour”.

 

“The approach is somewhat different in a criminal case.  Proof of guilt does not rest on mere preponderance of probability so far as the prosecution is concerned.  Nevertheless a criminal court is required to examine whether the preponderance of probability lies in favour of prosecution.  If there is no such preponderance of probability made out, that is an end of the matter.  If such preponderance exists, the court has to further consider whether the factors emerging from evidence against prosecution are of such a nature and quality as to create a reasonable doubt regarding the truth of the prosecution case and guilt of the accused.  Existence of preponderance of probability and existence of reasonable doubt are not necessarily incompatible with each other. In one case preponderance of probability may be of such a nature and quality that it rules out any reasonable doubt.  In another case, nature and quality of preponderance of probability may be such that there is room for reasonable doubt. In actual practice, the two ………aspects telescope into each other. ————————The court cannot insist on such a degree of probability as to amount to absolute certainty as will exclude every possible doubt, and negative every possible theory, but the court should have arrived at such a degree of moral certainty as will warrant it in the interests of justice, in taking the risk of being mistaken. That risk, under our system, is negligible in view of the requirement of acceptable evidence and high degree of moral certainty.  The distinction in this behalf between civil cases and criminal cases is part of the Common Law of England and followed in India even in the absence of any statutory provision”.

 

“—————————We must keep in mind the dividing line between legal proof and moral certainty.  But once evidence comes before the court and stands the test of severe legal scrutiny, the effect of that evidence constitutes the legal proof.  Then the dividing line vanishes.  Test of proof is not the absence of reasonable doubt, though that is often a convenient way of expressing what is meant by proof (of guilt in criminal cases).  The test is really the estimate which a prudent person makes of the probabilities having regard to what must be his duty as a prudent person”.

 

 Some law persons feel that there cannot be a concept of unreasonable doubt.  In my book referred to above at pages 8, 9,  I quoted Lord Kenyon (quoted in Dr. Kennys’ Outlines of Criminal Law, 480 (17th edition)) to the following effect:-

 

“————give the prisoner the benefit of every reasonable doubt – not be it noted – of every doubt, but only of a doubt for which reasons can be given; for everything relative to human affairs and dependent on human evidence is open to some possible imaginary doubts; it is a condition of mind which exists when the jurors can say they feel an abiding conviction, a moral certainty of the truth of the charge; for it is not sufficient for the prosecution to establish a probability, even a strong one according to the doctrine of chances; he must establish the fact (of guilt) to a moral certainty, a certainty that convinces the understanding, satisfies the reason and directs the Judge must —————to warrant an acquittal, the doubt must not be light or capricious, such as timidity or passion prompt or weakness or corruption readily accepts”.                 (Emphasis supplied)

 

In the above book, I quoted Wharton in Criminal Law Evidence Page 31 (12th Edition) as follows:

 

“—————(Reasonable doubt) It is a doubt which settles in your judgment and finds a resting place there.  It must be such a doubt as in the graver transactions of life, would cause a reasonable man to hesitate and pause in passing a final judgment on the question before him. A reasonable doubt must be one arising from the evidence or from want of evidence, and cannot be an imaginary doubt or conjecture unrelated to the evidence.  Reasonable doubt is real, substantial, serious, actual doubt arising out of the evidence and existing after consideration of all evidence.”                 (Emphasis supplied)

 

Cookbur C.J. stated in R.v.Gastor (quoted in the above book  at page 9) as follows: -

 

“The doubt the benefit of which the accused is entitled must be such as rational, thinking, sensible man may fairly and reasonably entertain, not the doubts of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle skepticism.  There must be a doubt which a man honestly and conscientiously entertain.” (Emphasis supplied)

 

Lord Denning observed in 1947 II All.E.R.37 (Miller vs. Minister of Pension) as follows – regarding degree of proof required by law in a criminal case: -

 

“That degree is not well settled.  It need not reach certainty but carry a high degree of probability.  Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt.  The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.  If the evidence is strong against a man as to leave only a remote possibility in his favour that can be dismissed with the sentence, ‘of course, it is possible, but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”       (Emphasis supplied)

 

 Judges have used several expressions to explain the meaning, content and scope of “reasonable doubt”.  In doing so, they have also explained what is not reasonable doubt or what falls short of reasonable doubt.  The stress is on strong and reasonable probability based on evidence or lack of it.  In the words of Lord Denning, the degree of proof is not required to reach “certainty”.

 

Are Bail Applications Filed in Vacuum?

(Is it not a Proceeding under the Code) 

 

(By Manu Tom Cheruvally, Advocate, High Court of Kerala)

 

This Article is a humble attempt, as to raise a doubt regarding the proposition laid down by a learned single Judge in Crl. R.P. No. 1128/2010 - Prasad Jacob  v. State of Kerala, which is reported in 2010 (2) KLT SN 70 (C.No.68). The proposition which is doubtful enumerated in para.10 of that judgment is extracted hereunder:

 

“The bar of revision under S.397(2) Cr.P.C. is only in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding pending before an inferior criminal Court. Here, the learned Magistrate passed the order granting bail not in any appeal, inquiry, trial or other proceeding pending before him. Since the order granting bail was passed during the crime stage in an independent application filed for the purpose and not in an interlocutory application filed in any pending proceeding before the Magistrate, the order passed by the Magistrate cannot be termed as an interlocutory order with the meaning of S.397(2) Cr. P.C. The observations in paragraph 6 of Amarnath’s case  (AIR 1977 SC 2185) will show that passing orders for bail and such other steps in aid of pending proceedings may amount to interlocutory order”.

 

For those who are not familiar with the above citation, the brief facts of that case were that, Revision Petitioners before the High Court of Kerala were arrayed as accused A1 to A5 on 22.3.2010 in Crime No. 72/10 of Perumpetty Police Station, Pathanamthitta for offences punishable under Ss.143, 147, 153 A & 295(A) read with S.149 I.P.C. They were arrested on 23.3.2010 and produced before the Judicial First Class Magistrate Court, Thiruvalla which remanded them to judicial custody. The learned Magistrate as per order dated 24.3.2010 granted bail to the petitioners. That order ‘granting bail’ was challenged by the Public Prosecutor on behalf of the State by way of a Revision (Crl. R.P. No.11/10) before the Sessions Court, Pathanamthitta. The learned Sessions Judge on 29.8.2010 allowed the Revision Petition and set aside the bail order and cancelled the bail granted to the accused/revision petitioners under S.439(2) of the Cr. P.C. The said order was assailed before the High Court by the accused in the Criminal Revision Petition.

 

Among other contentions, the main argument for the revision petitioners/accused was that, the State should not have filed a revision before the Sessions Court assailing the order granting bail to the accused. Instead, it could have only filed a petition under S.439(2) Cr. P.C. to cancel the bail. Or the Revision filed on behalf of the State before the Sessions Court to cancel bail was not maintainable at all, since an order granting bail is an interlocutory order and thus a Revision was barred in view of S.397(2) Cr.P.C.

 

To put it in simple words, the question before the High Court was that, whether an order granting bail is an interlocutory order, barring a Revision under S.397(2) of Cr.P.C. or what is the nature of an order “granting bail”, interlocutory or final?

 

The Hon’ble High Court vide its judgment dated 6.5.10 dismissed the Revision Petition preferred by the accused without interfering with the impugned order cancelling bail. While dismissing the revision, the learned single Judge points out (in para 10) that, even though State preferred a revision, Sessions Judge invoked his power under S.439(2) Cr. P.C. to cancel the bail. Thus, the learned single Judge did not find any good reason to interfere with the impugned order, since the quoting of a wrong provision of law cannot deprive the Court of his powers to grand a relief which that Court is empowered to grant. I do not propose to quarrel with that finding and hereby I do not.

 

But I am raising a question of doubt regarding the other proposition enumerated in the same paragraph (para.10). The said proposition was that “Since the order granting bail was passed during the crime stage in an independent application filed for the purpose and not in an interlocutory application filed in any pending proceeding before the Magistrate, the order passed by the Magistrate cannot be termed as an interlocutory order with the meaning of S.397(2) Cr.P.C.”

 

The learned single Judge was suggesting that the bail application which was filed during the crime stage, was an application filed for the purpose and it is not filed during any pending proceedings, to come under the purview of S.397(2) Cr.P.C. The question I am raising is whether S.397(2) Cr.P.C. contemplates an order passed during the ‘pendency of a proceeding’. Now for clarity, it is apposite to extract S.397(2) Cr. P.C.:

 

397(2) - The powers of revision conferred by sub-s.(1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding”.

 

From the above extract, it can be seen that S.397(2) Cr.P.C. only contemplates a proceeding rather than a pending proceeding. Actually S.397(2) Cr.P.C. limits the revisional jurisdictional powers envisaged under S.397(1) in respect of interlocutory orders passed at four stages before inferior criminal courts and that four stages are namely appeal, inquiry, trial or other proceeding. In the above four stages, the first three, namely appellate stage, inquiry and trial stage doesn’t need much explanation as those stages are clearly identifiable and recognizable. For more clarity, S.2(f) of Cr.P.C. defines' Inquiry’ as every inquiry other than a trial conducted under Code of Criminal Procedure by a Magistrate or Court.

 

It also includes the definition of trial. Now the only stage which remains unexplained, unidentifiable or ambiguous is the fourth stage i.e. ‘other proceeding’. So what is the meaning of the term ‘proceeding’.

 

The term proceeding as such is not defined in Code of Criminal Procedure. S.2 (i) defines a ‘judicial proceeding’. The term proceeding can be found in Cr.P.C. in innumerable times in different contexts for different purposes. Some examples are (1) title to Chapter XIV - conditions requisite for initiation of proceedings. Ss.397, 267,195, etc.... Even though it is not defined, Legislature made use of it abundantly. The Law Lexicon (P. Ramanatha Aiyar’s) defines the term ‘proceedings’ in (page 1524) “as forms of law or modes in which judicial transactions are conducted”. The Oxford English dictionary defines it “as an event or a series of actions”. For precedents, while discussing 267(1)(a) of the Cr.P.C., Bombay High Court held in State of Maharashtra v.Yadav Kohachade (2000 Crl. L.J. Page 959) that “proceedings” would mean and include an action or prosecution and sometimes as meaning a step in action and therefore, it includes all steps taken in furtherance of prosecution i.e. arrest, remand, interrogation and investigation”. Allahabad High Court also explaining S.267 Cr.P.C. in Ranjeet Singh v. State of Uttar Pradesh (1995 Crl.L.J. page 3505), held that the word ‘proceedings; are compendious and include proceedings encompassing all stages and have in their fold remand proceedings and even proceedings of an investigation. Similar view has been expressed also by Madras High Court in C. Natesan v. State of Tamil Nadu & Ors. (1999 Crl. L.J. page 1382). This view has been upheld and reiterated in para. 17 of State of Maharashtra v. Swaraj Shrikant Thackery. Moreover a thorough scanning of Cr.P.C. would show that the word ‘proceeding’ has been used in various sections in almost all cases to denote a particular stage of action and to widen the scope of applicability of that section to that stage of action. Usually it is used to widen the ambit of the Section. Other than the legal angle, in its ordinary meaning itself, word ‘proceeding’ includes or means, every other stage or every action or every other proceeding. For example, consider S.397(2) Cr.P.C. itself, it bars revision against interlocutory orders passed during four stages of a case, namely appeal, inquiry, trial and in any other proceeding. In this the last stage or the term ‘proceeding; includes the appellate stage, it contemplates inquiry stage as well as the stage of trial and it also denotes any other stage which is not expressly stated. But not vice versa. That is, the Legislature could have drafted S.397(2) without expressly mentioning 3 stages, but contemplating those stages and all other stages by the term ‘proceeding’.

 

Thus under Cr.P.C., particularly under S.397, any action or stage before a criminal Court, is a ‘proceeding’ before that Court, i.e. filing of a complaint, filing of a charge sheet, bail application, 205 petition, petition to adjourn or advance, trial, acquittal/conviction, any thing under the Code (may be read as ‘Sun’) comes within the term ‘proceeding’. So, in the case on hand, the filing of a bail application in the crime stage before a Criminal Court was a ‘proceeding’ before that Court. Any order passed in such a bail application is an order passed in a proceeding before that court. And the only question, which ought have been considered by the High Court was that whether it is an interlocutory order or not, to come under the purview of S.397(2) Cr.P.C. Rather, the Hon’ble High Court, in the instant case, imported a new stipulation, which is not at all contemplated under the statute, i.e: ‘pendency of proceeding’. And held that the bail application which is filed in the crime stage is an independent application filed for the purpose and it is not filed during the pendency of a proceeding. With respect, that’s not the mandate of law and that’s not at all contemplated under S.397 Cr.P.C. It was something foreign, erroneously imported.

 

For this erroneous import, the learned Judge takes asylum in Para 6 of Amarnath’s case (AIR 1977 SC 2185). But para 6 of Amarnath’s case does not say so in explicit terms. In that case, the main question was regarding the nature of an order, summoning accused, Whether it is interlocutory or final. And it was held to be a final order which is revisable. For arguments sake, even if it is assumed that Apex Court in Amarnath’s case spells so, it is something against the language of S.397(2) or it is per incuriam. For these strict Art.141 followers, Apex Court itself by a larger quorum of three Judges in State v. N M.T. Joy Immaculate ((2004) 5 SCC 729) held that “an order allowing remand (rejecting bail) at the crime stage is an interlocutory order, which is not revisable under S.397(2) Cr.P.C. Order allowing remand was held to be an interlocutory order for the reason that it doesn’t affect rights and liabilities of the accused (only theoretically). Going by the same standards, an order granting bail can only be held to be an interlocutory order since it doesn’t affect any rights or liabilities of accused (herein practically also).

 

Moreover, at least at this stage of Sakiri Vasu’s (2008 (2) KLT 754) permitting Magistrates to monitor everything and anything of investigation, from the registration of F.I.R to filing of charge sheet is not ‘Bail Application, a proceeding before a Court? Or are they filed in vacuum or are Magistrates sitting idle while considering such bail applications? No - Certainly Not.