Definition of "Proved" in Section 3 of Indian Evidence Act, 1872

(for short the act)

(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)

 

(1) The above definition reads as follows:-

“Proved – A fact is said to be proved when, after considering the matters before it, the court either believes to exist, or considers its’ existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists”.

 

The expression, “Disproved” is defined in a similar way, except that the courts’ belief or probability is that the disputed fact does not exist.  A fact is said not to be proved when it is neither proved nor disproved.  

 

 On a proper analysis, the requirements of the definition of “proved” appear to be the following:- 

1.  The court “considers” the “matters” before it, and 

 

2.  After such consideration, the court believes the fact to exist,  OR

 

3.  After such consideration, the court considers the existence of the fact so probable that a prudent person ought, under the circumstances of the particular case, to act upon the supposition that the fact exists.

 

2. The definition of “proved” does not expressly or impliedly indicate that the definition applies only to civil cases or that it does not apply to criminal cases.  “Facts”, “Relevant facts”, “Facts in issues” as also “evidence” arise equally in civil and criminal cases.  Section 3 of the Act defines “fact” as follows:-

 

“Fact means and includes –

(1) Any thing, state of things or relation of things, capable of being perceived by the senses, 

 

(2) Any mental condition of which any person is conscious”.

 

The senses are the five human senses, ie., sight, hearing, smell, touch and taste.  Thus, any thing, state of things, relation of things perceived by the five senses, that is, physical fact as also mental condition known to any person constitute “fact”. 

 

“Relevant fact” is defined in the same section of the Act, as follows:-

“Relevant”: “One fact is relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to relevancy of facts.”

 

Section 3 of the Act defines “Facts in issue” as follows:-

 

“Facts in issue”: “The expression “facts in issue” means and includes:-

 

Any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or other proceeding, necessarily follows.

 

Explanation: Whenever, under the provisions of the law for the time being in force relating to civil procedure, any court records an issue of fact, that fact to be asserted or denied in the answer to issue is a fact in issue”.

 

The illustration mentions the following facts as being in issue in a case where A is accused of the murder of B, that is, 

- “That A caused B’s death;

- That A intended to cause B’s death;

- That A had received grave and sudden provocation from B;

- That A, at the time of doing the act which caused B’s death, was, by reason of unsoundness of mind, incapable of knowing its’ nature”.

 

The above definition is based also on defences which could possibly be raised by the accused.  The definitions of “fact”, “relevant fact” and “fact in issue” clearly show that they apply irrespective of whether the case under trial is a civil case or a criminal case.  The concepts of “relevant fact” and “fact in issue” are important in the context of Section 5 of the Act which states as follows:-

 

“Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant and of no others”.  

 

The illustration refers to facts in issue in a criminal case and a civil case.  Chapter II of the Act deals with relevancy of facts.  Sections 6 to 23, 27 to 29, 32 to 38, 40 to 55 relate to relevant facts.  Sections 24 to 26, 30, 39 deal with facts which are not relevant.  The significance of a fact being considered relevant is that parties are entitled to adduce evidence in proof or disproof of it.  “Evidence” as defined means all oral statements permitted or required to be made before court in relation to matters of fact under enquiry, as also all documents produced for inspection of the court.

 

It is crystal clear that the definitions and provisions referred to above apply to civil as well as criminal cases.  In C.H.Razik Ram v. C.H.Jaswant Singh & Others ((1975) 4 SCC 769) it was held as follows:-

 

“It is true that there is no difference between the general rules of evidence in civil and criminal cases and the definition of “proved” in Section 3 of the Evidence Act does not draw a distinction between civil and criminal cases.”                                           (Emphasis supplied)

 

3. Let us go back to the definition of “proved”.  It is in two parts.  Under the first part, court “believes” a disputed fact to exist.  The second part refers to a situation where the court considers the existence of the disputed fact “so probable that a prudent person ought, under the circumstances of the particular case, to act upon the supposition that the fact exists”.  In other words, the Judge sitting in a prudent person’s chair (thinking like him), considers the existence of disputed fact “so probable ———” that he arrives at a conclusion which a prudent ought to arrive at in the particular circumstances.  This is what is otherwise termed “preponderance of probability”.  What is “so probable” is certainly preponderant probability.  The Judge, not being an eye-witness, is required to consider the matters before the court and arrive at a conclusion about existence of disputed fact, based upon his own “belief” or “preponderance of probability” as a prudent person ought to find.

 

4. It is part of the courts’ duty to correctly understand a relevant statutory provision.  If the provision is clear, unambiguous, plain and simple, court merely attempts to understand the provision and considers the matter before it in the light of such understanding.  The occasion for interpreting a statutory provision arises only when the provision is not simple, clear or free from ambiguity. 

 

5. Does the definition postulate two different standards of proof and of the two standards; does the former (belief) postulate a standard higher in degree than the degree postulated by the latter (preponderance of probability)?  If so, why did the Legislature provide two such standards?  Would it not have been sufficient to stipulate the lower standard as the only standard since evidence in proof of a disputed fact, taken along with other matters before the court, which makes the court believe in the existence of such a fact, will necessarily satisfy the alleged lower standard of preponderance of probability?  And if it is sufficient for a party in any judicial proceeding to satisfy the alleged lower standard, what impelled the Legislature to provide a higher standard too?  Is “belief” really a higher stand than “preponderance of probability”?  These questions have to be answered in correctly interpreting the definition.

 

6. What is indicated above will clearly show that the definition needs to be interpreted in the background of well-known principles governing statutory interpretation.  To do so, the meaning and implication of the two parts of the definition are required to be understood correctly.

 

7. There are only a few decisions of the Supreme Court referring to the definition.  They are referred to hereinunder.

 

8. In M.G. Agarwal and another  v.  State of  Maharashtra (AIR 1963 SC 200), a Constitution Bench of the court dealt with a case in which three officials of the Income – Tax  Department were charged with commission of offences punishable under Section 120-B, 467 and 471 of the I.P.C. and Section 5(2) of the P.C. Act.  The Trial Judge acquitted accused nos. (1) and (2) of all the charges, and convicted the 3rd accused under Sections 467 and 471 I.P.C. and Section 5(2) of P.C. Act, but acquitted him of the charge under Section 120 B, I.P.C.  The Bombay High Court which heard the State appeal against acquittal, held that the charge under Section 120-B, I.P.C. was proved beyond reasonable doubt against all the accused and convicted and sentenced them accordingly.  The High Court also convicted accused No. (2) under Sections 467 and 471 I.P.C. as also Section 5(2) of P.C. Act.  Accused 1 and 2 approached the Supreme Court.  The basis of the charges was that the accused conspired to issue and did issue false income tax refund orders in the names of non-existent persons, and forged signatures of such fictitious persons, collected the sums of money covered by the refund orders and misappropriated the same.  Prosecution case was governed entirely by circumstantial evidence.  Circumstances relied on were, the established office procedure, office duties assigned to the three accused respectively, the verifications of various matters which had to be conducted by the accused and which were not conducted, statements of the accused during departmental enquiry, the role played by each of the accused in relation to the incriminating documents, the falsity of the case set up by 1st accused that 3rd  accused destroyed documents which would have shown that the refund orders were true and genuine or otherwise, the modus operandi adopted by the three accused as seen from the proved office records, the non-existence of the alleged assessees in whose favour refund orders had been issued, that though all the alleged assessees being new assessees, absence of  any enquiry being conducted by the 1st accused before passing the refund orders, the nature of income purported to be disclosed in the alleged returns, the fact that in respect of returns for such income no refund could be legally allowable under the particular statutory provision, absence of assessment orders in most of the cases, absence of entries showing advance payment of tax in some instances, absence of cancellation of certain papers required to be made under law etc.  This narration will clearly show that entire evidence relied on consisted only of “circumstances”.  Naturally, the Constitution Bench had to consider the principles of criminal jurisprudence and law of evidence regarding the manner of proof of “circumstances” or “basic facts” and the basis on which circumstantial evidence  could  lead  to a  finding  of  guilt  of  the  accused.  The  bench  held  as follows in paragraph 18.

 

“But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other.  In regard to the proof of basic or primary facts, the court has to Judge the evidence in the ordinary way, and in the appreciation of evidence in respect of basic or of primary facts there is no scope for the application of the doctrine of benefit of doubt.  The court considers the evidence and decides whether that evidence proves a particular fact or not.  When it is held that a certain fact is proved, the question arises whether that fact leads to an inference of guilt of the accused person or not and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt.  It is in the light of this legal position that the evidence in the present case has to be appreciated”.     (Emphasis  supplied)

 

The judgment of the Constitution Bench did not specifically advert to the definition of “proved” in Section 3 of the Act; but the language used in the above quotation makes it clear that the bench had in mind this definition when it referred to “proof of basic or primary facts” and “judging the evidence in the ordinary way”.  The ordinary way is the way prescribed by the law of evidence, that is, the Act and definition contained in the Act.  This was how the editor of the law journal also understood the decision as is clear from the explicit reference to Section 3 in head note (b).

 

9. The conclusion of the Constitution Bench in M.G. Agarwal’s case and the passage extracted above have been quoted in later  decisions with approval as the law laid down by the Supreme Court.  For example,  Balu Sonba Shinde  v. State of Maharashtra (AIR 2002 SC 3137) (para. 4).  In Kishore Chand  v.  State of H.P. ((1991) 1 SCC 286), the court used almost the same language as employed by the Constitution Bench quoted earlier, though without making reference to the earlier decision.  The conclusion quoted above of the Constitution Bench deserves serious consideration and appreciation.  The two decisions in M.G. Agarwal and Kishore Chand dealt with prosecution based entirely on circumstantial evidence.  In such cases, the circumstantial facts are only facts which have been declared to be relevant under Chapter  II of the Act.  Such facts are referred to in M.G. Agarwal’s case as basic facts or primary facts.  They are governed by the definition of “proved” in Section 3 of the Act.  The court believes in the existence of such facts or accepts such facts as proved by preponderance of probabilities.  This was what was referred to in M.G.Agarwal’s case as judging “the evidence in the ordinary way”, that is the way mandated by the definition of “proved” in Section 3 of the Act.

 

10. In C.H.Razik Ram Vs. C.H.Jaswant Singh and others (supra), the Supreme Court observed as follows: -

 

“Nor does this definition insist on perfect proof because absolute certainty amounting to demonstration is rarely to be had in the affairs of life.  Nevertheless the standard of measuring proof prescribed by the definition, is that of a person of prudence and practical good sense.  “.                                  (Emphasis supplied)

 In Maharashtra Ed Bd v. K.S.Gandhi ((1991) 2 SCC 716), the Supreme Court stated as follows:-

“There must be evidence, direct or circumstantial, to deduce necessary inferences in proof of the facts in issue —————In some cases, the other facts, can be inferred, as much as is practicable, as if they had been actually observed.  In other cases, the inferences do not go beyond reasonable probability—————”.

 In none of the above cases did the court refer to the aspect of “belief”.

 

11. Evidence may be direct or circumstantial, whether it be a civil case or criminal case.  In a suit for recovery of money due under a demand promissory note allegedly executed by the defendant in favour of the plaintiff, if the defendant denies execution of the promissory note and receipt of any consideration, the main facts in issue are the alleged execution of the document and receipt of consideration.  If on consideration of the oral and documentary evidence as also such presumptions as are permissible in law, and applicable in the circumstances, court believes that the document in question had been duly executed by the defendant in favour of plaintiff or upholds preponderance of probability in favour of such a finding, statutory presumption regarding passing of consideration may follow and both facts in issue stand proved by plaintiff.  In a prosecution for the offence of murder by stabbing a victim with a dagger, where the accused pleads not guilty and does not raise any specific defence (except denial), the three facts in issue which arise are, did the accused inflict stab injuries on the victim, were such injuries the proximate cause of death and whether the mens rea which led to the assault fell within the ambit of Section 300, Indian Penal Code.  If on a consideration of the evidence adduced by the prosecution (defence also) and the circumstances arising from the evidence, the court believes or upholds the preponderance of probability in the prosecution version of the three facts in issue, conviction for murder and sentence under Section 302 I.P.C. will naturally follow if there be no reasonable doubt regarding such conclusions.  Fact in issue in a criminal case is any fact from which, either by itself or in conjunction with other facts, (assuming all these stand proved) liability of the accused necessarily follows.  While it is true that no illustration to a statutory provision can control the meaning and content of the statutory provision, it is well accepted that an illustration throws light on such meaning and content.  The definition of fact in issue read in the light of the illustration makes it amply clear that in a criminal case, the actus reus and the mens rea are the facts in issue, apart from any specific defence raised which would render the actus reus  a non-offence or render the mens rea nugatory.

 

12. What then is the precise meaning of the expression “fact” used in the definition of “proved” furnished in the Act?  The “fact” referred to therein embraces any fact in issue or relevant fact, since any fact which is neither a fact in issue or a relevant fact cannot be and will not be allowed to be proved by evidence, by virtue of Section 5 of the Act.  The standard prescribed in the definition of “proved” in the Act is belief or preponderance of probability.  But the definition does not expressly or impliedly embrace the idea of “proof beyond reasonable doubt”.  The requirement of “proof  beyond reasonable doubt” does not and cannot apply to basic or primary facts as made clear in M.G. Agarwal’s case and other cases.  Such basic or primary facts are to be proved in the ordinary way as explained in M.G. Agarwal’s case and other cases, that is, merely satisfying the requirements of the definition of “proof”.  The requirement of “proof of the charge or guilt of accused beyond reasonable doubt” has never been a statutory requirement in India.  This requirement was introduced originally by the Judges in England as part of the common law and adopted by Judges in India even since the British rulers established courts in India.   In the United States of America, the Judges introduced this requirement borrowing from the Common Law of England and later by judicially holding that the requirement is inherent in and flows from the due process clause in the XIV amendment.

 

13. In what context exactly does the requirement of proof beyond reasonable doubt arise? There can be no dispute that such a burden rests on the prosecution in establishing the charge against the accused or proving his guilt for the offence alleged against him.  It is worth while quoting again the following conclusion of the Constitution Bench in the case of M.G. Agarwal:

 

“When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt”.                 (Emphasis supplied)

 

In Garib Singh  v. State of Punjab  (AIR 1973 SC 460) (para .7) the Supreme Court observed as follows:-

 

“Section 3 of the Evidence Act enables a court to employ only the standards of a prudent man in judging what is to be deemed to be proved according to law.  Section 114 of the Evidence Act enables courts to presume only that which accords with the ordinary course of events and human nature and not what would be an aberration from such a course————————— the degree which must reach before a court trying a criminal case will convict is no doubt that which a prudent man will employ in reaching a conclusion beyond reasonable doubt whereas an accused need not prove his case to the same extent in order to succeed.  But the standards employed in judging each version are those of a reasonable and prudent man.  Such a man can only adopt what is natural to expect and what accords with common sense and ordinary experience but not what is extra–ordinary and unexpected as a reliable test of credibility of witnesses.”                   (Emphasis supplied)

 

The Court did not refer to the court believing in the existence of any fact.

 

14. In Rama Pratap and others v. State of Haryana (AIR 1983 SC 680) (para. 11), the Supreme Court dealt with a case in which the prosecution alleged that “R” and “S” held the victim and “M” gave him stab injuries which caused his death.  Though the Trial Court acquitted all the three accused of the charge, the High Court convicted them under Section 302 I.P.C. read with Section 34 I.P.C.  In an appeal by the three accused, the Supreme Court held as follows on the question of “common intention”:-

 

“The evidence is not very clear whether Rama Pratap and Satpal continued to hold the deceased even after Manmohan singh started stabbing him.  (After referring to the words uttered by each of the three accused which indicated merely a desire to teach the victim a lesson).  In the circumstances, we are unable to hold that the only inference possible is that Rama Pratap and Satpal shared the common intention with Manmohan to kill the deceased.  No doubt they held the deceased and this facilitated the stabbing by Manmohan.  But there is nothing whatever to indicate that they knew that Manmohan would cause fatal injuries.  It is one of those borderline cases where one may with equal justification infer that the common intention was to commit murder or to cause grievous injury.  But the benefit of any such doubt must go to the accused.  In the circumstances, we conclude but not without hesitation, that the common intention of the accused has not been established beyond reasonable doubt, to be to cause the death of deceased.  But it certainly was to cause grievous injuries to the deceased”.                     (Emphasis supplied)

 

 The Supreme Court altered the conviction of “R” and “S” into one under Section 326 I.P.C. read with Section 34 I.P.C., while maintaining the conviction of “M” under Section 302 I.P.C.  I may comment that the court did not consider the aspect whether “R” and “S” were aware, immediately preceding and at the time of the commencement of the incident, that “M” had a knife with him and wonder whether the finding on this aspect would have persuaded the Supreme Court to a arrive at a different conclusion.

 

15. In Vijayee Singh and Others  v.  State of U.P.  (AIR 1990 SC 1459), a three-Judge bench of the Supreme Court observed as follows:-

Para 26:- “The maxim that the prosecution must prove its’ case beyond reasonable doubt is a rule of caution laid down by the courts of law in respect of assessing the evidence in criminal cases.”

 

Para 28:- “………………..Section 3 while explaining the meaning of the words “Proved”, “disproved” and “not proved” lays down the standard of proof, namely about the existence or non-existence of the circumstances from the point of view of a prudent man.  The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, “believe it to exist” and secondly, in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its’ existence.  The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability.  It is this degree of certainity to be arrived at where the circumstances before a fact can be said to be proved.  A fact is said to be “disproved” when the court believes that it does not exist or considers its’ non-existence so probable in the view of a prudent man and now we come to the third stage (Sic) where in the view of a prudent man the fact is not proved i.e., neither proved nor disproved.  It is this doubt (Sic) which occurs to a reasonable man, has legal recognition in the field of criminal disputes.  It is something different from moral conviction and it is also different from a suspicion.  It is the result of a process of examination of the entire material on record by “a prudent man”.  (Emphasis supplied)

 

This decision made no reference to the earlier Constitution Bench decision in M.G.Agarwal’s case and equated ‘absolute certainty’ with merely high degree of probability.   

 

 A careful study of the language used by the Supreme Court may clarify what the above passage really intended.    No doubt the court did indicate that “believes” is when a man feels absolutely certain of a fact.  Following the reference to the second part of the definition, the court observed that the Act while adopting the standard which a prudentman ought to adopt, (the first part has no specific reference to prudent man)  as an appropriate concrete standard by which to measure proof at the same time contemplates full effect to be given to circumstances or condition of probability or improbability and it is this degree of certainty to be arrived at (the court earlier stated that the first standard imported the notion of absolute certainty).  The observations in Vijaya Singh and others begin by giving apparently different meanings to the requirements of the two different parts of the definition of “proved”, but end up by stating that this degree of “certainty” as the conviction in the mind of the Judge before a fact can be said to be proved.  In other words, the language used by the Supreme Court is suggestive of the idea that the two parts mean practically the same thing. 

 

  16. The idea expressed in paragraph 28 of the above decision that a fact is believed to exist when a person feels “absolutely certain” of the existence of the fact can lead to confusion.  “Absolute certainty” is a standard not known to law of evidence. “Absolute certainty” presupposes “perfect evidence”. How can any court or law-person expect “perfect evidence” to be adduced in this imperfect world?  Particularly in the case of direct testimony of eye witnesses, one always expects find some error, exaggeration, weakness or deficiency on account of substantial interval of time between the date of commission of offence and date on which the evidence of eye witness is recorded by court, which may lead to lapse of memory.  Such perfect evidence is sometimes seen by courts as indicative of strenuous tutoring of the witness. Perfect evidence and absolute certainty are words relatable to mathematics or even science, and not to the realm of evidence and proof.  In Inder Singh v.  Delhi Administration, (AIR 1978 SC 1091) the Supreme Court observed as follows:-

 

“While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect evidence.”   (Emphasis supplied)

 

Recall also the observations in C.H. Razik Ram’s case quoted in para. 10 above.

 

17. Further, in Vijaya Singhs’ case (AIR 1990 SC 1459), the court did not advert to the meaning and content of the words “belief” or “believes”.  Blacks’ Law Dictionary (Abridged sixth edition) at page 106, explains the meaning of the word “belief” thus:- 

 

“A conviction of truth of a proposition, existing subjectively in the mind and induced by argument, persuasion or proof addressed to the judgment.  A conclusion arrived at from external sources after weighing probability.  Conviction arising not from actual perception, but by way of inference of evidence received from other persons.———— belief is an assurance gained by evidence, and from other persons.  Suspicion is weaker than “belief” since suspicion requires no real foundation for its’ existence, while belief is necessarily based on atleast assumed facts”.                  (Emphasis supplied)

 

Advanced Law Lexicon (3rd Edition) by P. Ramanatha Aiyar at pages 498 and 499 of Volume I explains “belief” thus:-

 

“A persuasion of the truth ————— of ————— alleged fact——— formed in the way of inference from some other fact——————— Belief admits of all degrees from the slightest suspicion to the fullest assurance————— a state of mind that regards the existence of something as likely or relatively certain —————— To put credit or confidence in the veracity of testimony, to have belief, to satisfy, to suppose, to think—————”

               (Emphasis supplied)

 

The Compact Oxford English Dictionary explains the meaning of “believe” thus:-

 

“To accept that (something) is or (some one) is telling the truth, have faith in the truth or existence of, have religious faith or to think or suppose”.                         (Emphasis supplied)

 

Look at the range of meanings attached to the words “belief” or “believe”.  The range is very wide.  Therefore, it is difficult to say these words convey the idea only of the highest degree of persuasion.  

 

18.  Vijaya Singh's case juxtaposed “belief” with “absolute certainty”; this was done without specific advertence to the possible meaning and content of the expression “belief”.  ‘Belief” is not different in quality from “believes”.  One who has belief, believes; one who believes has belief.  Belief does not indicate only a single degree of proof, that too at the highest level.  When one uses words “absolute certainty”, one has in mind highest degree or level of conviction.  Actually “belief” or “belives”, as we see from P.R. Aiyar, indicates a range or degrees or levels ranging from “suspicion” to “fullest assurance”.  Black indicates that belief is state of mind reached after weighing probability and satisfied by assurance.  P.R.Aiyar also explains “Belief” is a state of mind that regards the existence of something as likely or relatively (not absolutely ?) certain.  “Likelihood” and “relative certainty” are conclusions which can be arrived at after “weighing probability”; that is precisely what the second part of the definition of “proved” (that is, existence of a fact is it so probable that a prudent, ought, under the circumstances of the case ought to act upon the supposition that it exists) indicates.  Both belief and preponderance of probability are based on probability arrived at on consideration of evidence and other matters before the court.  The two different parts of the definition have logical basis only if they involve different standards or degrees of proof.  If ‘belief’ arises only in case of “absolute certainty”, it is certainly a higher standard than “preponderance of probability” (second part).  If, on the other hand, ‘belief’ means only likely, it reflects a standard lower in degree or level than “preponderance of probability”.  If “belief” connotes merely “relative certainty” it is nothing different from “preponderance of probability”.  

 

19.  In In re Winship (397 U.S. P.358), Justice Brennan, speaking for the majority of Judges in the Supreme Court of USA observed (P.364) as follows:-

 

“————— the fact finder cannot acquire unassailably accurate knowledge of what happened.  Instead, all the fact finder can acquire is a belief of what probably happened.  The intensity of this belief – the degree to which a fact finder is convinced that a given fact actually occurred can of course, vary”.                   (Emphasis supplied)

 

20.  I refer again to Garib Singh and others  v.  State of Punjab (AIR 1973 SC 460), where Supreme Court observed as follows:-

 

“Section 3 of the Indian Evidence Act enables a court to employ only the standards of a prudent man in judging what is deemed to be proved according to law……………. The degree which proof must reach before a court trying a criminal case will convict is no doubt that which a prudent man will employ in reaching a conclusion beyond reasonable doubt whereas an accused need not prove his case to the same extent in order to succeed.  But the standards employed in judging each version are those of a reasonable and prudent man.”                 (Emphasis supplied)

 

This decision also made no reference to “belief”.

 

Does this decision mean that the Supreme Court was not aware that the definition was in two parts and the first part dealt with “belief” or “believes”?  It is apparent that the Supreme Court found no practical difference between the burden of proof prescribed in the two parts and both parts inhered only high probability – which a prudent man ought to accept.  Segregation of the two parts may mean that Legislature was not concerned that “belief” should be entertained on the basis of what a prudent ought to do, certainly an absurd idea!

 

21. In another case dependent entirely on circumstantial evidence, i.e., Rama Nand v. State of H.P. (AIR 1981 SC 738), the Supreme Court held as follows:  (para. 16)

 

“It is well-settled that where the inference of guilt of an accused person is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established.  Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probabilities, the offence was committed by the accused and none else.”

 

     In Maharashtra Ed. Board v. K.S.Gandhi ((1991) 2 SCC 716), which also dealt with proof of a corrupt practice which is treated akin to a criminal charge, the Supreme Court held as follows: (para. 38)

 

“———There must be evidence, direct or circumstantial, to deduce necessary inferences in proof of facts in issue.  There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to be established.  In some cases, the other facts, can be inferred, as much as is practical, as if they had been actually observed.  In other cases, the inferences do not go beyond reasonable probability.  If there are no positive proved facts, oral or documentary or circumstantial from which inferences can be made the method of inference fails and what is left is mere speculation”.

 

Quoting the above passage with approval, the Supreme Court in R.Puthinayanar v. P.H.Pandian & Ors. (AIR 1996 SC 1599), said (para. 7): 

 

“Therefore, we hold that to draw an inference that a fact in dispute has been established, there must exist, on record, some direct material facts or circumstances from which such an inference should be drawn.  The standard of proof required cannot be put in a straight jacket formula. ————The probative force could be gauged from the facts and circumstances of the case.”

 

In this case the court also observed in para. 9 as follows:-

 

“The burden of proof of the charge in a criminal case is always on the prosecution.  The guilt of the accused beyond reasonable doubt should be established by the prosecution.”

 

In M.Narsing Rao v. State of A.P. (AIR 2001 SC 318), the Supreme Court had to consider whether an offence under the Prevention of Corruption Act, 1988 was brought home to the accused.  The three Judge bench speaking through K.T.Thomas,.J. observed as follows in para 15:

 

“The word “proof” need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence.  (After reproducing the definition in Section 3 of the Act)——This is the definition given for the word “proof” in the Evidence Act.  What is required is the production of such materials on which the court can reasonably act to reach the supposition that a fact exists.  Proof of the fact depends on the degree of probability of it having existed.  The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him.”  (Emphasis supplied)

 

The Court proceeded to quote the following observations of Fletcher Moulton. L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. ((1911) 1 K.B. 988).

 

“Proof does not mean proof to rigid mathematical demonstration because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion.”                 (Emphasis supplied)

The “reasonable man” can only be the ‘prudent man’ of the definition.

 

The supreme court continued as follows: (para. 16)

“The said observation has stood the test of time and can now be followed as the standard of proof.  In reaching the conclusion, the court can use the process of inferences to be drawn from facts produced or proved.  Such inferences are akin to presumptions in law.  Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened.  In that process the court may have regard to common course of natural events, human conduct, public or private business vis-à-vis the facts of the particular case.  This discretion is clearly envisaged in Section 114 of the Evidence Act.”      (Emphasis supplied)

 

M. Narasing Rao’s case  in the above quoted para. 15, recited the definition of “proved” occurring in Section 3 of the Act (i.e. either believes it to exist or considers ——— so probable ————— a prudent man ————”, but followed it by stating emphatically regarding the standard prescribed by the definition as follows (already quoted):

 

“Proof of the fact depends upon the degree of probability of it having existed.  The standard required for reaching the supposition is that of a prudent man ————”   (Emphasis supplied)

 

It is obvious that the bench did not think that the first part of the definition (believes it exist) prescribes a standard higher or lower or different from the standard prescribed in the second part, suggesting thereby that the two parts, worded differently, mean practically the same thing and convey the same idea.

 

22. The definition employs the word “either” before the first part and the word “or” in between the two parts.  Of course, use of the two words can suggest a legislative intention to prescribe two alternative standards.  But the word “or”, while it ordinarily conveys the idea of an “alternative”, can also be used by way of prescribing the same thing in an explanatory mode.  If that be so, one can accept that the second part has been prescribed by way of explaining the word “believes” used in the first part.  When can a court “believe” in the existence of a fact? This could not have been left entirely to the subjective inclination of the court, though an element of subjectivity, competence, common sense, knowledge and experience of the Judge presiding over the court is always reflected in the conclusion.  This is what is meant by the Supreme Court by referring to “common sense” and “trained intuition” of the Judge.  See Krishnan & Anr.  v. State  (AIR 2003 S.C. 2978) (Para 24), State of U.P. v. Krishna Gopal and Another  ((1988) 4 SCC 302) (Para 26).  Second part of the definition is a self-contained one; guidelines are provided by using the phrases “so probable”, view of “a prudent man ought” etc.  But the first part is bereft of any guidelines as to under what circumstances a court can or cannot believe in the existence of a fact.  The Legislature could not have left it entirely to the subjective view of the court.  The Legislature obviously intended the second part of the definition as a guideline for the first part.  The court believes in the existence of a fact when there is preponderance of probability in favour of such a view and a prudent man ought, under the circumstances of the case, act upon the supposition that it exists.  That the word “or” is used to serve such a purpose appears to be clear.  The word “OR” is explained in Blacks Law Dictionary (supra) at page.756 thus:-

 

“A disjunctive particle used to express an alternative or to give a choice of one among this or more things.  It is also used to clarify what has already been said, and in such cases means “ in other word” “to wit” or “that is to say”.                                    (Emphasis supplied)

 

P.R. Aiyar’s Advanced Law Lexicon referred to earlier explains the word “OR” thus at page 3366:-

 

  “(it) is a disjunctive particle that marks an alternative, generally corresponding to “either” as “either this or that”, a connective that marks an alternative ————— “OR” prima facie has only an alternative significance but sometimes used as interpretive or expository, of former word——.  The word “or” is an alternative word.  It is, however, not always disjunctive and is some times interpretive or expository of the preceding word—.  The word “OR’ is often used to express an alternative of terms, definitions or explanations of the same thing in different words.  “OR” is sometimes used as an explanatory of the preceding term, in which case, it has been held equivalent to, to writ; or such other like expression as that is to say, “otherwise called”, ‘being”.                   (Emphasis supplied)

 

The above meanings to a great extent support the conclusion that the second part of the definition is, interpretive or explanatory, in the sense of “that is to say”. Even understood as alternatives, the later need not be mutually exclusive (G.P. Singh or “Principles of Statutory Interpretation (8th Edition page 371).

 

23. The definition mentions “either” “or”, which may carry a hint that legislative was indicating two alternatives.  But if the first part of the definition spells out a higher or lower standard than the second part, why did the legislative desire to provide such alternatives?  It would have been logical and legally correct to provide a definition referring only to the lower of the two standards, since, if in any case, the plaintiff or the prosecution satisfies any higher standard, necessarily the lower standard is also satisfied.  If the word “belief” used in the definition is to be understood in the sense “relatively certain”, that is the same as the degree or standard prescribed in the second part.  In other words, the two parts, properly understood, carry the same meaning, connotation and standard.  Then why prescribe the same standard using different words?  Obviously because the second part was incorporated by way of clarification or exposition or interpretation of the first part.

 

A fact is, inter alia, anything, state of things or relation of things perceived by the senses. When a respective eye witness speaks to what he saw and heard, at the occurrence, that is commission of a crime he is deposing to the existence of a "fact". He deposes that while he was travelling in a helicopter at a speed of 400 kms per hour over a thick forest, he saw the accused stabbing the victim (sleeping at the foot of a huge tree) shouting “I will kill you”. Let us assume that the two parts of the definition of “proof” in S.3 of Evidence Act to mean two distinct postulates. The court considers whether it can believe the version of the eye witness and consequently (of course, on a consideration of the other evidence and attendant circumstances in the case) whether to believe in the existence of "fact" that is the version of the commission of the crime as spoken to by the eye witness. Naturally and inevitably, the court assesses the version of the eye witness from the point of view of probability or improbability, among other things and arrives at the conclusion that it is impossible for the eye witness to “see” or “observe” or “identify” the victim sleeping at the foot of the huge tree in a thick forest or the assailant stabbing the victim from about 200 or 300 meters high in the sky and sitting in a speeding helicopter and through a thick forest cover. The court considers the version of the "fact" most improbable and artificial, if not impossible. It is this "improbability" or lack of "probability" which persuades the court not to believe the existence of the fact spoken to by the eye witness. Thinking carefully and logically it is clear that what persuades the court not to "believe" (first part of the definition) is the utter lack of probability (second part of the definition). Thus it is logical to hold that in the first part of the definition is inherent in the first part of the definition or at any rate, it prescribes one method of testing whether the Court can or cannot believe. Hence it is clear that the two parts of the definition are not mutually exclusive or in two isolated water tight compartments. Court "believes" a fact which is supported by  preponderance of probability.

 

24. The question then arises why the legislative used the word “either” before the first part of the definition.  In interpreting a statutory provision, ordinarily, a construction which results in addition, substitution of words or which results in rejection of words as meaningless or surplus age is to be avoided.  This rule like all rules is subject to exceptions (see page 54 in former Chief Justice of the High Court of Madhya Pradesh, Justice G.P.Singhs’  “Principles of Statutory Interpretation” 8th edition).  Effort should be made to give meaning to each and every word used by the Legislature (see page 63 of the above book).  But in discharging its’ interpretive function, the court can correct obvious drafting errors and so, in suitable cases, the court will add or omit or substitute words (see page 65,66 of the above book).  The Legislature sometimes uses superfluous words, or provisions or even tautological expressions because of ignorance of law or as a matter of abundant caution.  When other provisions indicate that a provision owes its’ origin to a confusion of ideas or to a misunderstanding of the law or to abundant caution, the court can conclude that the provision is superfluous (Pages 71, 72 of the above book). 

 

25. Justice G.P.Singh in the book supra at page 69 states as follows:-

“At times the intention of the Legislature is clear but the unskilfulness of the draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language.  Since courts strongly lean against reducing a statute to a futility, it is permissible in such cases to reject the surplus words to make the statute effective and workable.  Salmon v. Duncambe (1886) II AC 627 (PC).

 

An example of the application of this principle is furnished by the Privy Council decision (Salmon v. Duncambe  supra), in an appeal from Natal. ————————

The intention of the Legislature was plain from the title and preamble that the ordinance was passed to enable the British subjects resident in Natal ————— to make bequests according to English law.  The difficulty in giving effect to this intention was created by the last nine words. (i.e. “as if natural born subject resided in England) ———————.  The Privy Council ———— held that as the broad intention of the Legislature was not in doubt, the last nine words could be rejected as immaterial to make the statute effective.”                (Emphasis Supplied)

 

Justice G.P.Singh refers to a decision of the House of Lords in M.C.Monagle v. West Minister City Council ((1990) I All.E.R. 993 (HL)) which followed the above decision of the Privy Council, while construing para. 3A of Schedule 3 to the Local Government (Miscellaneous Provisions) Act, 1982.  Clauses (a), (b), (c) contained the words “which is not unlawful”.  The House of Lords came to the conclusion that the four words were a surplusage and as having been introduced by incompetent drafts man ship.

 

26. Thus it is seen that even in the motherland of English language and even before 1886 and thereafter, there was no dearth of incompetent draftsmanship.  The court, where the situation warrants, is competent to reject words used in a statute as surplusage.  

 

27. The word “either” in the definition of “Proved” is definitely a erroneous surplusage.  As can be seen from the various meanings of “belief” or “believes” seen in several legal and other dictionaries and from analysis in our and other jurisdictions by Judges and jurists, the words have several shades of meaning, indicative of varying degrees of “intensity of belief”.  Necessarily, the Legislature, being aware of the vagueness of the word “believes” used in the first part, deliberately and advisedly provided a clarification in the second part of the definition. The two parts of the definition do not provide two different standards of “persuasion” or “conviction” the former higher than the later.  On the other hand, the word “belief” has several shades of meaning ranging from “relative certainty” to “suspicion”.  Almost all these shades postulate a degree of persuasion equal to or even less than the degree of persuasion postulated by the standard of “preponderance of probability” which is the essence of the second part.  It is wrong to assume that “believes” inheres only a higher standard than “preponderance of probability”.  There is no belief without satisfaction of preponderance of probability.  The second part is provided to indicate which degree or “intensity of belief” inherent in the first part is favoured by the Legislature.  

 

28.   The definition of “proved” has to be regarded as seriously flawed if the two parts are held to be alternative definitions.  That is because of total absence of any guidelines for “believes” either in the same definition, or the scheme or any other provision of the Act.  The definition indicates how and under what circumstances, court is to regard a disputed fact as proved.  The second part being itself sufficiently explanatory, guideline is inherent in it.  But the question as to under what circumstances court can or should “believe” in the existence of a fact is not answered in the said provision or any other provision of the Act. By virtue of the definition, power is vested in the court to hold that a disputed fact exists or not.  If any part of the provision which so confers or defines such statutory power is bereft of guidelines, it is perilously close to being regarded as arbitrary.  Courts, to the extent they can, must avoid any such construction which imperils the very provision.  If the second part of the definition is understood as interpretive or expository or explanatory of the first part, the provision cannot be regard as bereft of guidelines.

 

29.  The Act contains several provisions to control the uninhabited discretion of Judges in the matter of conduct of trial, receiving evidence, method of proof, burden of proof and various other matters.  The object sought to be achieved is to enable a fair trial, protecting the rights of all parties to litigation.  The basic objective is fairness, speedy trial, without cluttering court record with all kinds of evidence of little credibility or proof of facts which will really not assist the Judges in coming to as correct a conclusion as humanly possible.  Framers of the bill preceding the Act had the benefit of experience of the common law of England and did try to avoid some pitfalls.  When a fact can be said to have been proved, would have been one of the matters which received their serious attention.  There is a feeling in our midst that bad or indifferent drafting of Indian statutes post-independence is due to lack of our knowledge and expertise in English language.  Then what about the hundreds of decisions of English courts which had to wrestle with the onerous task of interpreting statutory provisions in the face of indifferent language employed and lack of careful thought bestowed on the language by the draftsmen of the British Parliament?  The Legislature which passed the Act knew its’ language well, had the assistance of the best English decisions available, knew the range of degrees and variety of standards of satisfaction comprehended by the word “believes” or “belief” and yet used the word “believes” in the first part of the definition without apparently furnishing any guidelines which will indicate the degree or intensity of “belief” which was intended to be reflected in the first part of the definition.  Obviously the Legislature was reassured that use of the imprecise word “believes” will not create any difficulty in view of the clarification furnished in the second part of the definition and failed to comprehend the drafting error in using the word “Either” before the first part.  It is probable that a lay man will be instinctively aware when to “believe” and when not to “believe”, but Judge steeped in the traditions of law and technicality can confuse himself about the precise degree of satisfaction which is equated with “belief”.  Obviously, use of the word “either” was the result of a drafting error.

 

30. I have been referred, in this connection, by Dr. Mohan Gopal, Director, National Judicial Academy, Bhopal, to over a dozen decisions of the Supreme Court to support the view that every circumstance, primary or basic fact, relied on by the prosecution in a criminal case is required to be proved beyond reasonable doubt. I shall advert to the decisions to see if the contrary view expressed by me in this behalf requires a fresh look. All the decisions which Dr. Mohan Gopal referred to me are cases governed by circumstantial evidence.

 

30 A. Almost all the decisions reiterate the principles laid down over the decades by courts in India in relation to nature and requirements of proof and drawing inferences from such circumstances or basic or primary facts, to see if the “ultimate fact” or “factum probundum” or the guilt of the accused for the crime alleged is proved beyond reasonable doubt. Almost all the decisions reiterate the requirement that the circumstances, basic facts or primary facts set up by the prosecution and which are said to lead to the unerring inference of guilt, must be or should be “fully” or “clearly” established or proved. There can be no difference of opinion on this principle. The disputed question is, if each of such circumstances / facts is required to be proved merely on “belief” or on preponderance of probability as per the definition of “proved” in Section 3 of the Evidence Act or is required to be proved beyond reasonable doubt. If the latter view is correct, it means the doctrine of benefit of doubt applies even at the stage of considering if a circumstance or basic or primary fact is proved, which will be totally contrary to the law laid down by the constitution bench in M. G. Agarwal. H.G. Nargundkar v. State of M.P (AIR 1952 S.C 343), S.B Sarda v/ State of Maharashtra (AIR 1984 SC 1622), Kishore v. State of H.P. (AIR 1990 SC 2140), State of U.P. v. A.K Srivastava (AIR 1992 SC 840), C. Chenga Reddy & Ors.  v. State of A.P. (AIR 1996 SC 193), Pawankumar v.  State of Haryana) (AIR 2002 SC. 1324), B.S. Shinde v. State of Maharashtra (AIR 2002 SC 3137), Alamgiri v. State (N.C.T.) Delhi) (AIR 2003 S.C. 282), all emphasis that circumstances relied on must be “fully” established or proved. Abdulghani v. State of U.P (AIR 1973 SC 264) stated that such circumstances must be established on the record according to the law of evidence. Kishorechand (supra) also stated that the circumstances must be “satisfactorily proved”. Kishorechand also contains a statement to the effect that the “prosecution failed to prove as a primary fact all the three circumstances, much less beyond all reasonable doubt bringing home the guilt of the accused”. The decision introduces the notion of proof beyond reasonable doubt only in relation to the guilt of the accused for the offence charged and not regarding the proof of circumstances. In Sudama Pandey & Anr. v. State of Bihar  (AIR 2002 SC 293), a bench relied on an earlier decision to the effect that the circumstances must be clearly established and the court must be so satisfied by reliable and clinching evidence and suspicion cannot take the place of proof and moral certainty does not provide legal proof. The bench observed in para 4 that the court has to consider the evidence and decide whether the evidence proves the particular facts relevant for the purpose of the case.

 

It is seen from the above decisions that in regard to proof of circumstances or primary or basic facts, different benches of the supreme court have used different expressions, such as “fully established”, “clearly established”, “satisfactorily proved” and “established according to the law of evidence”, all impliedly pointing to the definition of “proved” in Section 3. Section 3 refers to “belief” or what in effect is “preponderance of probability” and does not expressly or impliedly speak of any standard of proof “beyond reasonable doubt”. This was what was clearly laid down in M.G. Agarwal by stating that at the stage of proof of basic or primary facts the doctrine of benefit of doubt was not applicable and the doctrine would have application only at the next stage of drawing influence of guilt from the proved circumstances. The principles laid down in M. G. Agarwal have been quoted with approval in Abdul Ghani in para 4 by a three judge bench, in Kishorechand (para 6), B.S.Shinde (para 4) and Alamgir (para 23), the last of which was decided as recently as on 12.11.2002.

 

In Balwinder Singh v. State of Punjab (AIR 1987 S.C 350), decided by a two judge bench, there is seen an observation in para 6 to the effect that the circumstances must be fully established beyond a reasonable doubt; this observation was made without referring to the constitution bench decision in M.G. Agarwal which, in turn, had been quoted with approval in 1973 in Abdul Ghani by a three Judge bench. Therefore the observation referred to the above in Balwinder Singh cannot be taken to be good or binding law. In fact in para 7 in Balwinder Singh itself, the two judge bench observed that the “preponderance of probability” is that the deceased was brutally murdered by being strangled to death…..”. If the fact-in-issue of murder could be treated as proved by preponderance of probability why should a mere circumstance or primary fact require to be proved beyond reasonable doubt.

 

We are now left with two more decisions referred to me by Dr. Mohan Gopal. Both these decisions refer to certain rules indicated in the book “circumstancial evidence” by Sir Alfred Wills in chapter VI, reading reading thus:-

 

“1. The facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probundum………........................

 

5.  If there be any reasonable doubt of the guilt of the accused, he is he is entitled as of right to be acquitted”.

 

The two decisions are in Harishchandra Ladaku Langu v. State of Maharashtra ((2007) 11 SCC 436) and Venkatesan v. State of T.N (2008) 8 SC C 456), both being rendered by the same two judge bench. The references to the five propositions (I have quoted above only proposition 1 & 5) occur in para 14 in the two decisions (pages 441 and 460 respectively of the two citations). There cannot be any confusion regarding the first proposition of Sir Alfred Wills. It is clear that the first proposition is in two parts, viz. the primary facts must be clearly proved and secondly, those primary facts must, beyond reasonable doubts connected with the factum probundum. Apparently, combining and compressing the two parts of the first proposition can create some confusion. Carefully read, the proposition merely requires that primary facts must be clearly proved. The second part of the first proposition must go along with proposition 5. 

 

The second sentence in para 10 of the above two decisions (at pages 440 top and 459 middle) reads thus:-

 

“the circumstances from which an inference as to the guilt of the accused is drawn have to be proved reasonable doubt and have to be shown to be………..”

 

The two decisions did not refer to decision of the constitution bench in M.G. Agarwal which was certainly binding on the two judge bench while deciding H.L. Langu and Venkatesan. The two Judge bench also did not refer to any of the four earlier decisions in Abdul Ghani (3 Judges), Kishorechand, B.S. Shinde and Alamgir which quoted with approval the law laid down by the constitution bench in para 18 of M.G. Agarwal. These four decisions came during the period 1973 to 2003. In the face of all these decisions, one cannot imagine that the stray observation in para 10 of H.L. Langu and Venkatesan unsupported by any precedent or reasoning can be accepted to be laying down a principle of law and the same is per incurium.

 

Some of the decisions referred to in this paragraph state that circumstances, basic facts or primary facts have to be fully or clearly or satisfactorily established. One can proceed only on the presumption that the benches of the supreme court used the word “fully” consistently with “belief” or “preponderance of probability” arising from the definition of “proved” in Section 3 of the Evidence Act. That being so, it is clear that the decisions used the word “fully” merely to indicate that it is not sufficient to prove such facts “partially” or “partly” but that is necessary to prove them as contemplated in the definition. Use of the words “clearly established” was only to remove academic cobwebs from the mind of the reader. “Clearly” postulates “clarity”. There should be nothing ambiguous about the proof. Ambiguous evidence cannot lead to “preponderance of probability” which are the words found in Balwinder Singh. The reference in Abdul Ghani to “establishing the circumstances according to the law of evidence” puts the matter beyond any controversy.

 

31. In State N.C.T. of Delhi v. Navjot Sandu Alias Afsan Guru (Parliament attack case), ((2005) 11 SCC 600), the Supreme Court had to, among other questions, consider the charge of conspiracy and charges under Sections 120A, 120B, 121, 121A and 122 of I.P.C.  During the course of the discussion on the aspect of conspiracy, the court made the following observations:-

 

“One more principle which deserves notice is that cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances.  Of course, each one of the circumstances should be proved beyond reasonable doubt.” (Emphasis supplied)

 

If the last sentence is taken to mean that each of the primary or basic facts whose cumulative effect could lead to a conclusion that the charge of conspiracy (which includes the object and other relevant aspects) is required to be “proved beyond reasonable doubt” in the sense of “charge against the accused” or “guilt of the accused” being required to be proved beyond reasonable doubt, that would go against the decision of the Constitution Bench in M.G.Agarwal (AIR 1963 SC 200).  The above observation was made without noticing the conclusion of the Constitution Bench in para 18 of that Judgement.  The conclusion of the Constitution Bench was the following:-

 

“In regard to the proof of basic or primary facts, the court has to Judge the evidence in the ordinary way, and in the appreciation of evidence in respect of proof of basic or primary facts, there is no scope for the application of the doctrine of benefit of doubt.”   (Emphasis supplied)

 

The doctrine of “benefit of doubt” is the natural and inevitable corollary to the requirement of “proof beyond reasonable doubt”.  It must follow that doctrine of benefit of doubt has no role to play in the area of appreciation of evidence for the purpose of deciding whether prosecution has proved “basic or primary facts” or the various basic or primary circumstances whose cumulative effect requires to be taken into consideration.  If in regard to any matter, “proof beyond reasonable doubt” is not required, in reference to proof of that matter, the doctrine of benefit of doubt cannot apply and vice versa.  Similar is my comment on the observation of the Supreme Court in Yusufalli v. Esmait Nagree (1968 Cr.L.J. 103), in relation to caution necessary in relying on a magneto tape recording, to the following effect: -

 

“The court must be satisfied beyond reasonable doubt that the record has not been tampered with.” (Emphasis supplied)

 

Similar also is my comment about the similar stray observation of the smaller benches in Harishchandra Ladaku Thanga v. State of Maharashtra (AIR 2008 SC 1537) and Venkatesan v. State of T.N. (AIR 2008 SC 369). The decision of the Constitution Bench was not noticed in the decision referred to in this para of the smaller benches. Thus the decision of the Constitution Bench in M.G. Agarwal was not adverted to or explained or restricted in any manner by the later decisions of smaller benches. Hence the observation in the above 4 decisions has to be regarded as “per incuriam” and hence cannot be held to be laying down any binding principle of law. This position can certainly be appreciated by anyone steeped in the traditions of judiciary. 

 

32. I  am  also  aware  of  the  decision  of the Supreme Court of U.S.A. in In Re Winship (397 U.S. 358).  The question which arose for consideration was whether the juvenile before the New York Family Court was “a person ——— who did any act which, if done by an adult, would constitute a crime”?  Section 744(b) of the New York Family Court Act provided that any determination at the conclusion of an adjudicatory hearing that the juvenile did commit such a act or acts must be based on a “preponderance of the evidence” (not preponderance of probability, which is quite a different matter).  The Supreme Court held that even in the proceeding against a juvenile in respect of an offence allegedly committed, the standard of proof “of essential elements of crime” is one of proof beyond reasonable doubt and this standard must necessarily apply to proceeding before the Family Court in respect of an act, which, if committed by an adult, would be a criminal offence; this is so by virtue of the due process clause introduced by the XIV Amendment to the Constitution and the different and lower standard prescribed by the New York statute would be unconstitutional as violative of the due process clause.  There are a few weighty observations to the following effect in the majority Judgement:-

 

(a) Page 359: - “It is now accepted in common law jurisdiction as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.”

 

“Expressions in many opinions of this court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required.”

 

(b) Page 360: - “Mr. Justice Frankfurter stated that (it is) the duty of the Government to establish guilt beyond a reasonable doubt.  This notion basic in our law and rightly one of the boasts of a free society – is a requirement and a safeguard of due process of law in the historic and procedural content of “due process of law”.——

 

In a similar vein, the court said in Brinegar v. U.S., supra, 338 U.S. at 174 ……. that “guilt in a criminal case must be proved beyond reasonable doubt.——”  (Emphasis supplied)

 

(c) In Davis v. U.S. (160 U.S. at 488), the court considered the question of degree of burden of proof regarding sanity of the accused.  The Court said: -

 

“On the contrary, he (accused) is entitled to an acquittal of the specific crime charged, if upon all evidence, there is reasonable doubt whether he was capable in law of committing crime————— No man should be deprived of his life under the norms of law unless the jurors who try him are able, upon their conscience, to say that the evidence before them ————is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charges.”                 (Emphasis supplied)

 

(d) Page 361: - (Quoted from Speiser v. Randall (357 U.S. at 525, 526)

 

“Where one party has at stake an interest of transcending value as a criminal defendant his liberty – this margin of error (in factfinding) is reduced as to him by the fact finder at the conclusion of the trial of his guilt beyond reasonable doubt.  Due process commands that no man shall lose his liberty unless the Government has borne the burden of —————convincing the fact finder of his guilt.

 

To this end, the reasonable doubt standard is indispensable for it “impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue”.

 

(e)  Lest there remain any doubt about the constitutional stature of the reasonable doubt standard, we explicitly hold that the due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.     (Emphasis supplied)

 

Here are a few observations in the concurring Judgement delivered by Mr. Justice Harlan: -

 

(f) Page 364: - “I begin by stating two propositions —————— First, in a judicial proceeding in which there is a dispute about the facts of some earlier event, the fact finder cannot acquire unassailably accurate knowledge of what happened.  Instead, all the fact finder can acquire is a belief of what probably happened.  The intensity of this belief can, of course, vary.  In this regard, a standard of proof represents an attempt to instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of the factual conclusions for a particular type of adjudication.————”  (Emphasis supplied)

 

(g) Page 365:  Mr. Justice Harlan also observed –

 

“(A preponderance of evidence standard) ———— simply requires the trier of fact to “believe that the existence of a fact is more probable than it’s non-existence before he may find in favour of the party who has the burden to persuade the (Judge) of the fact’s existence. —————— Where one party has at stake an interest of transcending value as a criminal defendant his liberty this margin of error is reduced as to him by the process of placing on the other party the burden of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt.”                   (Emphasis supplied)

 

33. In Re Winship (Majority and concurring judgements) does not contain any other observations relating to degree of proof of “fact in issue” or “relevant fact” or “basic or primary facts” except those quoted in paragraph 30 supra and serialized as (a) to (g).  Do they support any proposition that proof of all  “relevant” facts in a criminal case must be proved beyond reasonable doubt?  In the said Judgements, it is repeatedly stated that burden which lies on the prosecution is to prove the charge or guilt of the accused or the “essential elements of guilt” beyond reasonable doubt.  See quotations in clauses (a), (b), (d) and (g).  This, of course, with great respect, is unexceptionable. 

 

Quotations (c) and (e) refer to need to prove beyond reasonable doubt, “the existence of every fact necessary to constitute the crime charged”.  This does not comprehend every “relevant fact” as defined in Indian Evidence Act, but only the fact necessary to constitute the crime, that is, “facts in issue” which means ‘actus reus’ and “mens rea”.

 

Quotation (f) refers to “factual conclusions”.  There is an accepted way for a Judge to proceed to arrive at a final conclusion regarding the charge or the guilt of the accused.  Prosecution may rely on direct testimony (of eye witnesses) or indirect testimony (i.e. relating to circumstances) spoken to by witnesses, such as motive, previous quarrel, previous threat or behaviour, acts of preparation such as procuring a weapon or poison, opportunity, subsequent conduct of accused such as hiding his own blood-stained clothes or weapon, absconding, judicial confession, extra-judicial confession not hit by Sections 24 to 26 of the Act and other circumstances.  These are obviously the facts or circumstances referred to as “basic or primary facts” by the Constitutional Bench in M.G.Agarwal’s case.  There can be no doubt that the observations in In re Winship are to the effect that proof beyond reasonable doubt is required in respect “of every fact necessary to constitute the crime”.  What are the facts necessary to constitute the crime?  There may be several basic or primary facts whose cumulative effect leads to an inference of guilt beyond reasonable doubt.  These facts which enable such an inference are not “facts which constitute crime” which are really “facts in issue” as defined in Section 3 of the Act in the light of the illustration.  In other words, those facts which constitute the crime are the ingredients found in the definition of the offence in the penal law (actus reus, mens rea, common intention, common object, conspiracy, constructive liability, etc.). These facts constitute, “facts in issue” and these are “facts necessary to constitute the crime”.  These facts in issue or facts necessary to “constitute” the crime are, according to In re Winship, required to be proved beyond reasonable doubt.  Other facts, which may be just introductory facts (in the general sense) and relevant facts (under the Act) are not facts in issue and fall within the description of “basic or primary facts” mentioned in M.G.Agarwal’s case and such facts are required to be proved in the ordinary way, that is, as prescribed in the definition of “proved” in Section 3 of the Act which means belief, that is to say, preponderance of probability. If this view is not correct, what then are the "basic" or "primary" facts referred to in M.G. Agarwal’s case ? There can be no answer to this question.

 

34. Various provisions of the Act refer to “court” and not to “Judge”.  This is true of definition of “proof” in Section 3 of the Act which also speaks of the “court” as the authority to arrive at a conclusion whether the existence of a disputed fact is proved.  There is a view that the word “court” has been used to emphasise that the conclusion must be absolutely objective and totally devoid of any element of subjectivity of the Judge as a human being.  “Court” is generally regarded as the place where justice is judicially administered.  A court ordinarily postulates at least three constituent parts, the action (plaintiff), the reus (defendant) and judex (judicial power) which determines disputed questions of fact and law and if any injury appears to have been done, to ascertain, and by its officers to apply the remedy (Stephen).  But the court is not a mechanical robot which functions by itself.  Court comprises the Judge, the parties, the judicial power, officers and staff, computers, typewriters and the like.  Without the Judge, the court cannot function.  A Judge cannot function as such except while holding court.  Black’s Law Dictionary referred to earlier, after referring to various historical connotations of the word “court”, concludes thus at page 247: -

 

“The words “court” and “Judge” or “Judges” are frequently used in statutes as synonymous”.                (Emphasis supplied)

All the above may not be very important in view of the following definition of “court” provided in Section 3 of the Act: -

“Court: “Court” includes all Judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence.”

 

I have already indicated that some subjective element cannot be totally eschewed in the decision or the decision making process.  Here is what the Supreme Court observed in State of U.P. v. Krishna Gopal  (AIR 1988 SC 2154) (para. 26):-

 

“There is an unmistakable subjective element in the evaluation of the degrees of probability and quantum of proof.  Forensic probability must, in the last analysis, rest on robust commonsense and, ultimately, on the trained intuitions’ of the Judge.”     (Emphasis supplied)

 

The Supreme Court repeated the same idea in the same words in Krishnan and another v. State (AIR 2003 SC 2978) (para. 24) quoting with approval the observations in the earlier case of State of U.P. v. Krishna Gopal and Another (AIR 1988 SC 2154).  It follows that intuition developed by reading, common sense and experience plays a significant role in the appreciation of evidence, which is ultimately the task entrusted to a Judge who is very much a human being.

 

35. In this connection, I may refer to certain passages in WIGMORE “On Evidence In Trials At Common Law” (Tillers edition) Vol.-IX. 

 

Page 405. “The Tribunal must be persuaded to believe the affirmation of the burden bearer before it can be asked to act as desired, but that persuasion or conviction in the mind of the Tribunal may have more than one degree of quality or persuasion.” (Emphasis supplied)

 

(Foot note 1.  In criminal case, a rule has grown up that the persuasion must be beyond reasonable doubt (as a requirement of due process – In re Winship. (397 U.S. 358, 364, 1970)).

 

Page 412 to 414: “It is generally and properly said that this measure of reasonable doubt need not be applied to the specific detailed facts, but only to the whole of the issue and herein is given an opportunity for much vain argument whether the strands of a cable or the links of a chain furnish the better similar for listing the measure of persuasion.”

 

The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief.                (Emphasis supplied)

 

(Footnote 9 quotes from the concurring Judgement of Harlan, J. in In re Winship.  At page 416 is quoted the passage from the said decision to the effect that there must be proof beyond reasonable doubt of every fact necessary to constitute the crime with which an accused is charged.  These passages have already been quoted by me earlier.)

 

Page 416: (Footnote 2 bottom). “A later case, Jackson v. Virgenia  (443 U.S. 307 (1979) expounds the doctrine: “Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof - defined as evidence necessary to convince a trier of fact beyond reasonable doubt, of the existence of every element of the offence.”                          (Emphasis supplied)

 

Page 416 and 417: “In In re Winship, the Supreme Court held, for reason set forth below that the due process clause protects the accused against conviction, except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”       (Emphasis supplied)

 

Page 417: “Previously, in Leland v. Oregon (343 U.S. 790 (1952) the court, analyzing Oregon Criminal Law and Procedure, had found that “legal sanity” as an issue set apart from the crime charged and that, in this instance, the burden of proof beyond reasonable doubt could constitutionally be imposed upon the accused on this issue.  This of course meant that Winship’s mandate included only issues of facts “necessary to constitute the crime —— charges.”                (Emphasis supplied)

 

(Of course, the law in India is different from Leland v. Oregon.  In India, while it is true that burden of proof regarding plea of insanity rests upon the accused, prosecution has the burden of proving “mens rea”; an insane person, prima facie, cannot ordinarily have any mens rea as contemplated in Indian criminal law.  In Nanavathi’s case where the accused raised a plea of private defence etc, it was held that he had the burden of proof; but even where he fails to discharge the burden, he can succeed in creating reasonable doubt in the mind of the Judge regarding mens rea, which is one of the facts-in-issue and an ingredient of the crime.)

 

Page 418: “In Patterson v. New York (432 U.S. 197 (1977) under the New York Law, White J. reasoned for the majority as follows: -

 

“……..we therefore will not disturb the balance struck in previous cases holding that the due process clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offence of which the defendant is charged.”      (Emphasis  supplied)

 

In civil cases in the United States, a good deal of confusion was created by postulating “preponderance of evidence" (not preponderance of probability).  W. Trickelt in his work on “Preponderance of Evidence and reasonable Doubt”, 10 Dick. Rev.76 sharply criticized the formulation applied to civil cases of “preponderance of evidence”.  He believed that this formulation will lead to civil cases being decided on the basis of numerical strength of witnesses on both sides, without the need for the court to entertain any “belief” in regard to crucial facts in across!

 

Page 420:  (dealing with civil cases) “There is no measure of the weight of evidence (unless the evidential facts are counted) other than the feeling of probability which it engenders.”

 

Page 413:  (Footnote 2) “California People v. Kelinbinberg (90 Cal. App.2d. 608, 632, 634 P2d 47, 62 (1949) – “It is not the law —————-that each fact in a chain of circumstances that will establish a defendants guilt must be proved beyond reasonable doubt ————— Doctrine of reasonable doubt applies to proof of guilt and not to establishment of each incident or event inculpating the defendant.””

 

“The strict standard is not applicable to evidence of criminal acts offered evidentially to show motive, intent etc.  Cases cited in para 216 note 4 supra.” (Emphasis supplied)

 

36. The following statements in CRIMINAL EVIDENCE (4TH ED.) by Richard May are also significant: -

 

Page 65 – Para. 4-37: “Proof of guilt beyond a reasonable doubt ————many attempts have been made to define a reasonable doubt ———— the standard of proof is a high one, but it is important that it should not be confused with absolute certainty (Bracewell (1979) 68 Cr. Appeal R. 44 C.A.).  Thus in R. H. (minors) (1996) 2 W.L.R. 8, (24) Lord Nicholls said “The law looks for probability, not certainty, certainty is seldom attainable.  But probability is an unsatisfactorily vague criterion because there are degrees of probability. (Emphasis supplied)

 

In Miller  v. Minister of Pensions  (1947(2) All ER 372, 373), Lord Denning said “That degree is well-settled.  It need not reach certainty, but it must carry a high degree of probability.  Proof beyond doubt does not mean proof beyond a shadow of reasonable doubt ———. (Emphasis supplied)

 

Page 67 – Para 4-39:  In Miller v. Minister of Pensions supra, Lord Denning observed, dealing with the burden resting on the defence, that if the evidence is such that the Tribunal says “we think it more probable than not, the burden is discharged, but if the probabilities are equal, it is not”.  That according to Miles. J. in Cooper v. Slade (1857-58) 6 HL case 746 , is exactly the burden in a civil case, that is, preponderance of probability.”  (Emphasis supplied)

 

37. Here are some of the observations in Halsburys’ Laws of England, Vol.17, 4th Edition: -

 

“To succeed on any issue the legal burden of proof must (1) satisfy a Judge or jury of the likelihood of truth of his case by adducing a greater weight of evidence than his opponents and (2) adduce evidence sufficient to satisfy them to the required standard of proof.  The standard differs in criminal and civil cases ————

 

In civil cases, the standard of proof is satisfied on a balance of probabilities (Miller v. Minister of Pensions (1947(2) All ER 372-374) the more serious the allegation, for example, fraud, crime or professional misconduct, the higher will be the required degree of proof, although it will not reach the criminal law standard………….

 

In Criminal case, the standard required of the prosecution is proof beyond reasonable doubt.

 

Page 23 – Para. 29 – Proper evaluation of the weight of evidence given by different witnesses is a matter for the common sense and impression of the Judge or jury.

 

Page 74:- “Sure” does not mean certainty.  To require certainty of legal proof would produce absurdity.”                      (Emphasis supplied)

 

38. Following are the statements found in CRIMINAL PLEADINGS, EVIDENCE AND PRACTICE by Archibald:-

 

Page 447 – Para 4-384:- “while the prosecution do not have to make the jury feel certain of the accuseds’ guilt (Miller, 1947(2) All ER 372) per Denning at Pages 373, 374, R .  v. Bracewell (68 Cr.Appeal R44(A) they must satisfy the jury, upon the whole evidence called by all the parties, of the accuseds’ guilt beyond all reasonable doubt……… it is well established that the standard of proof is less than certainty.  Expressions (in instructions to juries) such as “pretty certain, reasonably sure and pretty sure” were disapproved by the court of criminal appeal.  R  v.  Law ((1961) Crl.R 52), R v. Head and warren (45 Cr.Appeal.  R.225) and R  v. Woods ((1961) Crl.R.324).  It is therefore better to give “reasonable doubt” direction.  In R v. Bentley ((1999) Crim.L.R. 330), the court of appeal said, as to standard of proof, that a jury should be instructed that if on reviewing all evidence, they are unsure or left in any reasonable doubt as to the accuseds’ guilt, that doubt must be resolved in accuseds’ favour.                      (Emphasis supplied)

 

39. Here are some of the statement in Jeremy Bentham – Rationale of Judicial Evidence, Prevention of Deception: -

 

Page 60: - “Quantity of probative force incident to the body of evidence, is manifestly, as above explained, susceptible of degrees and conformable to the tendency of the evidence.  It is not necessary that the probative force of it should in every instance be at the highest degree.

 

Let us take a mass of or lot of evidence, of such a description, as, in the judgement of the ordinary run of mankind, is found sufficient (if not contradicted or otherwise counter evidenced) to produce a belief in the existence of a matter of fact which it asserts.   (Emphasis supplied)

 

Let us recall the probative force by an article of evidence of this description, the ordinary degree of probative force.  What is manifest to every man is that, by evidence of this description, belief is frequently, indeed most commonly produced; and, that, in the greatest number of cases, of the belief so produced, right Judgement and not deception is the consequence. 

 

Page 61: - The greater the quantity of probative force in the mass of evidence produced on one side, deduction made of that which is produced on the other side, the more certain in the eyes of a by-stander will be it’s effect on the mind of the Judge, and the greater in the mind of the Judge will be ease and satisfaction with which the Judgement of belief pronounced on the strength of it will be accompanied.”       (Emphasis supplied)

 

40. In C.H.Razik Ram v. C.H.Jaswant Singh Chowhan and Others ((1975) 4 SCC 769), the Supreme Court considered if an alleged corrupt practice had been proved, indicating also that the standard of proof in the case of a charge of corrupt practice is substantially akin to a criminal charge and hence each and every ingredient of the charge must be proved by clear, unequivocal and unimpeachable evidence beyond reasonable doubt.  The court further observed as follows (para. 15) :

 

“It is true that there is no difference between the general rules of evidence in civil and criminal cases and the definition of “proved” in Section 3 of the Evidence Act does not draw a distinction between civil and criminal case.  Nor does this definition insist on perfect proof because absolute certainty amounting to demonstration is rarely to be had in the affairs of life.  Nevertheless, the standard of measuring proof prescribed by the definition, is that of a person of prudence and practical good sense.  “Proof” means the effect of evidence adduced in the case.  Judged by the standard of a prudent man, in the light of the nature of the onus cast by law, the probative effect of evidence in civil and criminal proceedings is markedly different.  The same evidence which may be sufficient to regard a fact as proved in a civil suit, may be considered insufficient for conviction in a criminal action. While in the former, a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and judicial certitude is requisite for a conviction.  The same is true about proof charge of a corrupt practice, which cannot be established by a mere preponderance of probabilities, and if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the court is left rocking with reasonable doubt – not being the doubt of a timid, fickle or vacillating mind – as to the veracity of the charge, it must hold the same as not proved.”                                (Emphasis supplied)

 

41. I have not dealt with the topic of appreciation of evidence, as it is outside the scope of this article.  Please see my book on “Appreciation of Evidence in Criminal Cases” published by the National Judicial Academy, Bhopal.

 

42. Let me summarise my tentative conclusions as follows: -

 

(a) Definition of “proved” in Section 3 of the Act applies equally in civil and criminal cases.

(b) “Fact” referred to in the definition embraces “fact in issue” and “relevant fact”.

(c) The definition apparently has two parts.  The first part refers to “believes” and the second part uses language which means “preponderance of probability”.

(d) The two parts do not indicate two different alternative standards.

(e) The first part “believes” is not self explanatory and has no guidelines; the guidelines are actually provided in the second part, which is explanatory or expository or interpretative.  A Judge believes the existence of a fact when there is a preponderance of probability in favour of it.

 

A Judge can believe in the existence of a fact when there is preponderance of probability in favour of it's existence, in other words, when such existence is highly probable according to standards which a prudent person ought to adopt. Conversely a Judge can believe in the non-existence of a fact when there is a prepondence of probability in favour of non-existence of that fact, in other words, when such non-existence is highly probable, according to the standards which a prudent person ought to adopt. The expression "believes" in the definition of "proved" and "disproved" in Section 3 of the Evidence Act can have no other or different yardstick or measure of persuasion.

 

(f) The element of “proof beyond reasonable doubt” is not comprised in the definition.  This element regarding proof of “facts in issue” in criminal cases, that is to say, guilt of accused of the crime or offence charged was introduced by Judges in England and India.

 

(g) The requirement of “proof beyond reasonable doubt” does not apply to proof in civil cases or proof of “basic or primary facts” (that is, facts which are merely relevant facts) in criminal cases.

 

(h) The reference to “court” in the definition is a reference to “Judge”.

 

(i) Proof of any fact under Section 3 of the Act depends on preponderance of probability in civil and criminal cases (except that, in criminal cases, the facts in issue, that is, the offence or the ingredients of the offence charged must be proved beyond reasonable doubt inspite of the definition).

 

(j) The words “belief” and “believes”, by themselves do not point to any particular degree or standard of proof.  These words, by their natural meaning inhere different degrees of intensity.  These words do not give rise to the idea of “absolute certainty” for such certainty can be achieved only by “perfect evidence”, both of which are unattainable or unavailable through the medium of human witness.  See Inder Singh (AIR 1990 SC 1459).  The expression “relatively” certain would be a more appropriate one.

 

(k) The decision of the Constitution Bench of the Supreme Court in M.G.Agarwal (AIR 1963 SC 200 – para. 18) has stood the test of time.  It has not been “explained” or “read down” in any later decision.  On the other hand, it has been followed in later decisions.  See Balu Sonba Shinde (AIR 2002 SC 3137).  Kishore Chand ((1991) 1 SCC 286) uses the identical language as in para.18 of M.G.Agarwal.

 

(l) Every Judge (Court) has to arrive at conclusions based on established principles of law, rules of presumption, his own judicial experience, common sense and trained intuition.  His approach is as objective as possible though an element of subjectively will necessarily enter the picture.  The standard prescribed in the definition is not what a prudent may adopt, but which such a person “ought” to adopt.

 

(m) The use of the word “either” in the definition is a surplusage and it cannot determine the meaning and content of the definition.

 

(n) The decision in the Parliament attack case ((2005) 11 SCC 600) did not advert to the constitution bench decision in M.G.Agarwal.  So also the decision in Yusufali (1968 Crl.L.J. 103).  Hence, it cannot be accepted that the benches which decided these cases contemplated a departure from the law laid down in M.G. Agarwal.  If they so contemplated, they had no authority to do so. 

Collegium Collapse?

(By T.P. Kelu Nambiar, Sr.Advocate, High Court of Kerala)

 

Recently, ‘The Hindu’ carried a head-band: “Allegations of lack of transparency in Collegium Procedure”? and the news thereunder was that the Central Government, in view of complaints from various quarters, are considering to change the method of selection of Judges to the Higher Judiciary, by way of change of statutory provisions, or judicial decision. I have the habit of thinking big and, even at 84, I wish to push boundaries. And I have Guru’s Gift. Therefore, I should think that this is an appropriate occasion for venturing a write-up touching the subject.

 

Upon my blood, I should think, the Government’s stand is not only correct, but also justified, for the Collegium Procedure has damaged the institution. As time does not end, it is not too late for the Government to try inspired re-erection to strengthen the ‘legal regime’.

 

A Judge is considered to be God’s middleman. The judicature is the place where justice is, just as the bank is the only sure place where the money is. Therefore, we should have vetted Judges, Judges possessing unitive consciousness, like seeing the thread in a cloth, clay in the pot, or water in the waves. Let me be painfully blunt. A candidate for appointment to the post of a Judge should be scanned from occiput to Achilles’ heel. His entire life upto the moment of consideration of him for the post, should be carefully examined and studied. Mark, it is not enough that one should be great; but should be good too. These are Judges who represent a picture of a sense of superiority. Lawyers are made to take home insults by the Court. A court is not an alms-house; nor a lawyer an alms-man. There is a pathetic dull in decision-making. “Too little, too late” judgments seem to be the order of the day. Think of music without melody; learning without humility; speech without truth; knowledge without wisdom. In those situations, arrogance would become a creed, egoistic boast fashionable; sense of self-respect will decline. A Judge enjoys an overwhelming conventional superiority over the lawyers. Therefore the necessity for choosing the right persons to the seat, remembering that Judges symbolise the institutional dignity of the Judiciary. Therefore, put an end to the constituency-wise selection of Judges.

 

When we speak of Higher Judiciary, meaning the High Courts and the Supreme Court, and consider the questions and aspects relating to the qualifications, mode and manner of appointment of Judges of the High Courts and the Supreme Court, we should not forget the fact that Judges of the Subordinate Courts are also constitutional appointees, meaning that the appointments of District Judges and of persons other than District Judges to the Judicial Service of the State are provided for in the Constitution itself - See Arts.233 to 237 of the Constitution. Moreover, under Art.217 of the Constitution, dealing with appointment and conditions of the office of a Judge of a High Court, a person who had held a judicial office in the territory of India for at least ten years, is also qualified for appointment as a Judge of the High Court. This has reference to judicial officers of the Subordinate Judiciary.

 

Likewise, under Article 124 of the Constitution of India, a Judge of a High Court is qualified for appointment as a Judge of the Supreme Court. Therefore, while considering questions relating to qualifications, manner and method of appointments to the High Courts and the Supreme Court, we should start from the grass-root level.

 

I am not going beyond the obvious when I venture the view, based on my edited experiences, that the entire judicial system needs overhauling from the grass-root level; and let me declare in general terms that the whole judicial system calls for a complete overhaul in this cyberspace era. I say with conviction and courage, abolish caste-based or colour-based selection of Judges. The Constitution of India does not prescribe the hue or the sex of a person to be selected as a Judge. 

 

The judiciary is not intended for the Judges alone. Nor is it intended for the lawyers alone; or for the Judges and lawyers together only. The judiciary functions for the people of India, not for the litigants alone. As Justice Krishna lyer has said: “The judiciary derives its power under the Constitution, not over it”. The justicing system is too serious a business; and it is better not to leave it to the Judges and lawyers alone. Justice Pandian, in his Lordship’s judgment in the Supreme Court Advocates - On - Record Association case ((1993) 4 SCC 441) posed questions only on Solomon’s sovereignty; not on accountability. I say, the Indian Solomon is accountable to the people of India.

 

I should think, the qualifications for appointment of Judges of the High Courts and the Supreme Court need drastic changes; the procedure for appointment, as contained in Arts.124 and 217 of the Constitution of India, needs change; a well constituted Judicial Commission is needed; there should be transparency in the matter of consideration of candidates for appointment; and the present procedure for removal of Judges needs change.

 

I am of the firm view that a person, on recruitment as a Judge of the High Court, should be subjected to training for a good period, of about six months at least. It is trite that one who declares that he knows everything, knows nothing; and only the one who says he knows nothing, knows something. Training on behavioural aspects should be especially imparted to him. He has to undergo, so-to-say, a drip system on the aspect of behaviour, so that the instructions will touch the root. That is necessary for maintaining the dignity of the institution. In a court of law, restraint should not be at a discount. Lessons in correct judicial prose should also be taught. The implicit message, in short is, let us have Judges, who know their lexicon. Law book is not cook book.

 

I should also think that a minimum age for recruitment as a High Court Judge should be fixed. The age limit could be between 58 and 70, so that after retirement a Judge need not go in search of other assignments or legal practice. That would enable him to call himself Mr. Justice so-and-so even after retirement. Here I would like to pose the question as to whether an Indian Judge of a High Court or the Supreme Court could be called Mr.Justice so-and-so after retirement, as is the case in England. The Bar Council is to consider this aspect of the matter, especially because several retired Judges practising in the Supreme Court as lawyers, are called Mr.Justice so-and-so Advocate. No Judge of the High Court or Court of Appeal in England practices law or takes up any other assignment after retirement. In fact, there, even a retired Judge, continues to be a Judge. That is why they are called Mr.Justice so-and-so, even after retirement.

 

The bar being the feeder of the Judiciary, also needs upgradation, especially when solo law practice is the order of the day; and nobody works as a junior under a senior for the tariff period. If this be the state of affairs, we should be prepared to face a judicial earthquake.

 

Recruitment to any post is made by selection after written test, or interview, or both, or by scouting for the best candidate. But, appointment to the post in Higher Judiciary is made by choosing without any guideline, in a highly arbitrary manner, without fear, and, could be, with favour and affection. This brings about a colossal disaster.

 

Everybody concerned with the judicial system should endeavour to uphold justice; justice never dies; and that is why the Lord of Death is called the Lord of Justice also. A Judge is not a power symbol. A Justice incarnate, he should be.

 

Let it be virtuous to be obstinate. Let us await the “Collegium Collapse”.

 

[Note:  I have already pronounced my verdict on the judgment which created the Collegium Procedure. (See ‘Verdict on a Judgment’ : 2009 (3) K L T Journal 25 :  Nambiar Third Miscellany, page 201]. 

For Whom the Reference Order is Made

(  By P.B. Sahasranaman, Advocate, High Court of Kerala)  

 

The general rule of law is that judicial proceedings were held in public and the judgment rendered is public property. Public hearing of cases before Courts is as fundamental to our democracy and system of justice as to any other country. The exceptions to the general rule are ‘in camera proceedings’ in family courts (Section 11 of the Family Courts Act, 1984.), and Official Secrets Act, 1923 wherein the Courts possess a general and inherent power of dispensing with open and public trials. The High Court has inherent power to hold the trial of a case ‘in camera’, provided it was satisfied that the ends of justice required such a course to be adopted. What would meet the ends of justice will always depend on the facts of each case and the requirements of justice. (Naresh v. State of Maharashtra (AIR 1967 SC page 1).)

 

But a division bench of the Kerala High Court (Kannappan v. R.T.O. (1988 (1) KLT 902).)has declared an order of reference does not decide the rights of parties and therefore it shall not be published. “It may contain tentative views of the learned Judge making the reference, but not the final conclusions. It is the principle of “stare decisis” that necessitates the decisions of the Supreme Court and the High Court to be reported in the Law journals. When there is no decision to be followed by any authority, as in a reference order, the publication of the order of reference has no relevance. The reference order, at best, shows only a “course of reasoning which cannot be elevated to a general proposition of law” and reporting of reference orders which cannot serve the general interest of the society in the predictability of the law has only to be deprecated. Publication of a reference order has only a negative effect and serves as an open invitation for fresh litigation.” We are not aware of the publication of a reference order in the Law Journals except when it is part of the final judgment. In view of the judgment, even the parties to the litigation are denied copies of the said reference orders.

 

It is most respectfully stated that the above the judgment reported as Kannappan v. R.T.O.(1988 (1) KLT 902) require reconsideration in this era of the Right to Information Act, 2005 wherein transparency and accountability in the working of every public authority is made public. In a democracy an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed. Even interim orders calling for subsequent statements are published in law journals(AIR 1977  SC  2128.). But in Kerala High Court even concerned parties are not given copy of the reference orders even on application. How can a lawyer be expected to address the court without reading the copy of the reference order?

 

A reference order, if published, will help the law fraternity to know that it is a larger issue which is pending consideration before a bench. The same will also help other Courts in deciding similar issues without knowing pendency of the question before a larger Bench. Therefore all reference orders are to be published so that while considering the issue a better jurisprudence on the question can be evolved.

 

The judgment rendered in Kannappan v. R.T.O.  (1988 (1) KLT 902), is per in curiam and not a general rule laid down by the High Court.

 

The observation by Bentham on transparency reads:

In the darkness of secrecy sinister interest, and the evil in very shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. It is the keenest spur to exertion and surest or all guards against improbity. It keeps the Judge himself while trying under trial in the sense that the security of securities in publicity. (1911 All. ER 30)

 

After all the reference order is made in the larger interest of justice and also to decide the issue. It is not a private communication between the Courts. The legal embargo on the privacy of the reference order should go