Lawyersera

Sunday, October 11, 2020

Provision of Bail in Bailable offence Section 436 of Criminal Procedure Code 1973

The term 'bail' is not defined under the Code of Criminal Procedure 1973. However, it is termed as “bail’ is a temporary release from legal custody on furnishing requisite security/surety to available for trial.

In other words, it is considered as the temporary release of an accused from legal custody upon giving sufficient security for his appearance later on. It is based on the principle that the law recognize that every person has liberty, which should be protected and that every person, including the accused, is entitled to liberty unless he is found guilty of committing a serious crime. Bail cannot be claimed as a matter of right in the case of non-bailable offense. However, this does not mean that there can be no bail for such offenses.

Section 436, gives power to court or police officer in charge of police station to release the accused of bailable offence on bail

The meaning of bail is temporarily release from legal custody on furnishing requisite security or surety to appear for trial. If we more simplify, if any acquainted person who takes a guarantee of accused that whenever the appearance of accused is required during trial, he will present him. Such person is known as bailer in the legal term, for this he will have to furnish a surety, surety amount will be guided by officer or court, Surety can be like as RC of Vehicle, FD, and Registry of land or any such type of asset whose value is more surety amount. Bailer must be owner of such assets only then he can be bailer.

According to section 436(1) of Criminal Procedure Code 1973, if a person arrested or detained without warrant by police officer in charge of police station in a bailable offence, during custody, officer in charge of police station shall be release such accused on bail.

Or if such person appears himself or brought before court by arresting him, hon’ble court shall be released him on bail during any stage proceeding.

If the accused person is poor and is unable to furnish surety, instead of taking bail from such person,  Police officer in charge of police station or court as he thinks fit may release him on personal bond, means release him without sureties.  Accused person will be presumed as poor, if he is unable to give sureties within a week from the date of arrest.

According to section 436(2), if the person has breached the condition of bail-bond as regard the time and place of his attendance, whenever he appears or brought in custody before court, court may refuse to release him on bail and Such refusal will not affect the powers of the Court to forfeit the bond and recover penalty from the surety as laid down by section 446

There is no express provision in the Code prohibiting the Court from re-arresting the accused who has been released on bail. The High Court in the exercise of its inherent powers can cancel a bail bond.

Section 436A was introduced in 2005 in amendment of Criminal Procedure code, this section provide a provision to undertrial prisoner about maximum detention
According to Section 436A, During a period of investigation, Inquiry or trial, if the person has undergone detention more than one half of the maximum imprisonment of the offence which he did, court shall be release him on personal bond with or without sureties, but the court may order to continue detention more than half of the maximum imprisonment of the offence after hearing the public prosecutor and reason to be recorded by it in writing about such prolong detention . 

 No person shall be detained in any case more than the maximum imprisonment of the offence during the period of investigation, enquiry or trial,  

Case Law

Talab Haji Hussain v Madhukar Purshottam Mondkar, (1958) SCR 1226 : 60 Bom LR 937 : AIR

1958 SC 376 : 1958 Cr LJ 701

The Supreme Court has held that though a person accused of a bailable offence is entitled to be released on bail pending his trial, if his conduct subsequent to his release, is found to be prejudicial to a fair trial, he forfeits his right to be released on bail and such forfeiture can be made effective by invoking the inherent power of the High Court under section 482 of the Code.

 Ratilal v Asst Collector of Customs, AIR 1967 SC 1639 : 1967 Cr LJ 1576 .

In this case it was held that , if at any subsequent stage of proceedings, it is found that any person accused of a bailable offence is intimidating, bribing or tampering with the prosecution witnesses or is attempting to abscond, the High Court has inherent power to cause him to be arrested and to commit him to custody for such period as it thinks fit. This power can be invoked in exceptional cases only when the High Court is satisfied that the ends of justice will be defeated unless the accused is committed to custody.

Virsa Singh v State through CBI, 1992 Cr LJ 164 (Del); Jagannath Mishra (Dr) v CBI, (1998) 9 SCC 611 : (1998) 9 JT 149 (1) : 1998 SCC (Cri) 1337

In this case, Accused was granted bail who was in jail for six years. No progress was made in trial because of an order of the President, not to remove the accused from the jail. There was no indication as to when the above order would be withdrawn. There was no apprehension that the accused would tamper with the evidence. The bail was granted

 

Chowriappa Constructions v Embassy Constructions & Developments Pvt Ltd, 2002 Cr LJ 3863 (Kant).

While granting bail in respect of a bailable offence, insistence on personal bond and surety is a matter of discretion and within the jurisdiction of the Court under section 436

   

Saturday, October 10, 2020

CHAPTER V (When Police may arrest without warrant)

When Police may arrest any person without a warrant? What do you mean by arrest, When can a person be arrested by a private person also? What are the various rights of arrested people?


Section 41 of the criminal procedure code 1973 gives the power to police to arrest any person without a warrant, but there are some guidelines given by the supreme court that need to be followed strictly by arresting officers.

Under Section 41(1) of the Criminal Procedure Code, police officers have the right to arrest a person without any order of magistrate or without a warrant

According to Section 41(1)(a), When a person committed a cognizable offence in front of a police officer

According to section 41(1)(b), A reasonable complaint has made against a person who has committed a crime whose punishment is imprisonment up to 7 years with or without fine

or

If credible information has been received against a person who has committed an offence whose punishment is imprisonment up to 7 years with or without fine

or

Police Officer have reasonable doubt that this person has committed an offence whose punishment is imprisonment up to 7 years with or without fine

But the question is that is it enough to arrest to any person by a police officer if a reasonable complaint has made, credible information has received or there is a doubt to a police officer,

So answer is No, there is some condition to arrest any person, provision has been given under section 41(1)(b)(i) & 41(1)(b)(ii)

Police officer may arrest any person under section 41(1)(b)(i) & 41(1)(b)(ii), if these conditions are satisfied

  1. According to Section 41(1)(b)(i), Police officers have certain reasons to believe upon such complaint, information or suspicion, this person has committed the said crime, then he may arrest
  2. According to Section 41(1)(b)(ii), if a police officer has satisfied that such arrest is necessary but this satisfaction is based on some principles which follow as
  • According to section 41(1)(b)(ii)(a), Police may arrest such person to prevent of further offence
  • According to section 41(1)(b)(ii)(b), Police officer may also arrest proper investigation
  • According to Section 41(1)(b)(ii)(c), To prevent causing evidence of the offence to disappear or tampering with evidence in any manner
  • According to Section 41(1)(b)(ii)(d), To prevent from such person from making inducement, threat, making a promise to any person acquainted with the fact of the case not disclose anything related case to any police officer or to the court 
  • According to Section 41(1)(b)(ii)(e), When the presence of any person is not sure whenever will be required, then such person may be arrested by a police officer.
Note: Police officer shall record reason to arrest where there is required similarly if an arrest is not required in that case he will also record the reason for not arresting

According to Section41(1)(b)(a), if the credible information has been received against a person who has committed a crime whose punishment is imprisonment more than 7 years with or without fine including death punishment, such person shall be arrested but there is reason to believe upon such credible information.

According to Section 41(c) Who has been declared offender already under section Indian Penal Code, or by state government

According to Section 41(d), he has been suspected to have stolen property under his possession or reason to suspect that crime was caused by such a thing which is in his possession.

According to Section 41(e), who obstructs to police while executing his duty.

According to Section 41(f), who is reasonably suspected of being a deserter from any armed force of India

According to Section 41(g), A person has committed a crime out of India, if such crime is related to arrestable under section 41, it would be considered as he has committed in India

According to Section 41(h), A person who has been released after conviction, violated any rule made in sub-section 5 of 356,

Other Police officers, Private persons may arrest any person, this provision has been given under section 43 of the Criminal Procedure Code 1973,

According to this section, a private person may arrest any person who has committed a Non-Bailable, cognizable offence in front of him or he can be arrested to prevent such crime also or any proclaimed offender.

Meaning of this, anyone committing any crime in our presence, it is our duty to prevent for this he may arrest that person, once he is arrested, will be handed over to a police officer, in case a police officer is unavailable, will have to send him to the nearest police station immediately.

Right of Arrested Person

  1. It is the right of the arrested person to know on which ground he has been arrested
  2. According to Section 41B(a), It is the right of an accused person to know the name, designation, and police station of the Police officer.
  3. According to Section 41B(b), Police will make a memo of arrest, which contains, grounds of arrest, date, and place of arrest.
  4. According to Section 41B(b)(i), On such memo of arrest, It would be attested by a family member of the arrested person or by a respected person of the locality as a witness
  5. According to Section 41B(b)(ii), On such memo of arrest, It would be countersigned by the arrested person
  6. According to Section 41B(b)(ii), In case, If would not be attested by any person upon memo of arrest, a Police officer may inform his family member, friend or anyone requested by the arrested person about his arrest within 12 hours.
  7. According to Section 41D, it is the right of the arrested person to meet with advocate of his choice
  8. According to section 55A, an arrested person may request to Police officer to prepare an inspection report, this report contains if there is any injury mark or health issue,   It is the duty of the officer in charge of the police station to take reasonable care of of the health and safety of the accused. 
  9. According to Section 57, an Arrested person cannot be detained more than 24 hours, the arrested person must be present before a magistrate having jurisdiction in this case
Case Law

Gopal Naidu v King-Emperor, (1923) ILR 46 Mad 605 : AIR 1923 Mad 523 FB.

In this case it was held that A step little short of arrest is the ascertainment of the name and residence of a person.The section applies only to a person (1) who commits a non-cognizable offence in the presence of a police officer, or (2) who is accused of committing such offence before such officer. If the name and address are ascertained or are otherwise known to the police officer,

Goolab Rasul, (1903) 5 Bom LR 597

It was held that the person is to be released on his executing a bond to appear before a Magistrate. If the person does not give his name or residence or gives a name and residence which the police officer believes to be false, he may be taken into custody. He cannot account be detained beyond 24 hours,but should be placed before a Magistrate.

Ins. by Act 5 of 2009, section 6 (w.e.f. 1-11-2010).

In this case it was held that Right of arrested person to meet an advocate of his choice during Interrogation, When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout Interrogation.

Dr Rini Johar v State of MP, WP (Crl) No. 30/2015 as decided on 3 June 2016 by the Madhya Pradesh High Court.

Where the arrest was not made by following the procedure of arrest and section was not followed, the Supreme Court treated it as violation of Article 21 and granted a sum of Rs 5,00,000 (rupees five lakhs only) towards compensation to each of the petitioners to be paid by the State within three months hence

Hema Mishra v State of UP, AIR 2014 SC 1066 : (2014) 4 SCC 453 : 2014 Cr LJ 1107 (SC).

In this case it was held that Arrest of a person even in case of cognizable offences is not mandatory where the offence is punishable with a maximum sentence of seven years imprisonment. The provisions of section 41A make it compulsory for the police to issue a notice in all such cases where arrest is not required to be made under clause (u) of sub-section (1) of the amended section 41. But unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued under section 41A, could be a ground for his arrest. Legislation has laid down various parameters, warranting arrest of a person, which itself is a check on arbitrary or unwarranted arrest and the right to personal liberty.























































Tuesday, October 6, 2020

CHAPTER VII PROCESS TO COMPEL THE PRODUCTION OF THINGS

Summon to produce documents or things (Section 91 of the Criminal Procedure Code) 

It is a very important section of law professional, whenever any documents or things are required for the purpose of proper investigation, Enquiry or Trail, it can be summoned to produce such thing or documents to those who have other than accused in the trial. No court can compel anyone to produce any documents or any evidence which will be used against him.

But anyone who other than accused can be asked to produce, for example, any incident occurred in front of your shop, your shop equipped with CCTV then you can be asked to produce recording.

So according to section 91 of Criminal Procedure Code, Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceedings 

By using the power of Section 91, the Officer in charge of a police station may issue a written order to a person to produce such documents or things which is in possession of that person, or which is under supervision of him.

Or Court may summon to produce such documents or things which are in possession of that person, or which is under supervision of him by using the power of Section 91 of Criminal Procedure Code.

Case Law

Shyamlal v State of Gujarat, AIR 1965 SC 1251 : (1965) 2 Cr LJ 256 .

In this case clears the Section 91, on its true construction, does not apply to an accused person on trial. No Specific words indicate its application to accused persons on trial. A limitation should be put on the wide words used; otherwise calling upon an accused person to produce documents which are incriminating as against him will negate the safeguard of Article 20(3) of the Constitution of India. It may be that this construction of section 91 would render section 93 useless. But to a search by the police officer under section 165, Article 20(3) has no application.

Lotan Bhoji v The State of Maharashtra, (1974) 77 Bom LR 70 : 1975 Cr LJ 1577

It was held that, the Court must be informed of the name of the person in whose possession or power the document is; otherwise as application for issue of summons cannot be entertained

Om Prakash Sharma v CBI, AIR 2000 SC 2335 : 2000 Cr LJ 3478 : (2000) 5 SCC 679 ;

It was held that the circumstances in which this power can be exercised depends upon facts of each case. The Court has a wide discretion in the manner. It is only when the discretion is exercised neither judiciously nor judicially and there is gross or improper failure to exercise the discretion which is demonstrably unreasonable, that the superior Court would interfere. On the facts of the case, it was held that the Supreme Court's interference with the rejection of the accused's application under section 91 for summoning certain documents for CBI was not called for.

Subbiah v Ramaswamy, 1970 Cr LJ 254 : AIR 1970 Mad 85 .

In this the word things were interpreted as, the word refers to a physical object or material and does not refer to an abstract thing.

Issuing a summons to a person for the purpose of taking his specimen signature or Handwriting cannot be said to be for the production of document or a thing contemplated under this section.

Re Lakhmidas, (1903) 5 Bom LR 980 .

In this case Hon’ble court held that, this section deals with documents forming the subject of a criminal offence as also with documents which are or can be used only as evidence in support of a prosecution.

HH The Nizam of Hyderabad v AM Jacob, (1891) ILR 19 Cal 52, 64; Pratt, (1920) 47 Cal 647 ;

It was held that, the thing called for must have some relation to, or connection with, the subject matter of the investigation or inquiry, or throw some light on the proceeding, or supply some link in the chain of evidence.7.

Bashir Hussein v Gulam Mohomed Ismail Peshimam, (1965) 67 Bom LR 748 : AIR 1966 Bom 253 ,

It was held that, When an application is made to a Court, or to a police officer under this section, the Court is bound to consider whether there is a prima facie case for supposing that the documents are relevant, i.e., whether books of a particular type are likely to have a bearing on the case. If the Court thinks they are, then it can order production. The Court may also consider whether the document etc. is being suppressed or may be tampered with or destroyed by the party in whose possession it is or may be entirely lost.8.

Bajrangi Gope v Emperor, (1911) ILR 38 Cal 304, 306; Sheonandan Prasad v Bihar, 1979 Cr LJ

In this case, Hon'ble Court held that this section does not refer to stolen articles or to any incriminating document or thing in the possession of an accused person. 

Jagadish Prasad Sharma v State of Bihar, 1988 Cr LJ 287 (Pat).

The powers of the Court under section 91 of the Code could not be enlarged even if the accused person consented to such an order because the powers of the Magistrate are limited by the provisions of the Code.

D Veeraih v K Veeraih, 1988 Cr LJ 274 (AP).V

When the matter is in the investigation stage either on a private complaint referred by a Court or on a case registered on a police complaint, the Court is not entitled to pass any order by issuing summons or warrant against the accused for the production of a document or a thing that is in his custody which is incriminatory against him.



Saturday, October 3, 2020

Privilege Communication(Section 121 to 132 of Indian Evidence Act)

What is privileged communication? 

Section 121 to 132 of Indian Evidence Act deals with Privilege Communication

Privilege means a right, advantage or immunity belonging to a person, class or office. The privilege of witness means the right of witness to withhold evidence to disclose certain matters. The communication that are not be compelled to be disclosed are called “Privilege Communication”

Privilege is a legal freedom on the part of one person as against another to do a given act or a legal freedom not to do certain act. Privilege is an exemption from some duty, burden or attendance to which certain person is entitled

Interpretation of “commutation” is imparting or exchanging of information, sharing of knowledge by one with another, thing communicated, It means to impart, confer or transmit information.

The general rule is that a witness is bound to tell the whole truth and produce any documents in his possession or power to relevant to the matter in issue, but in privilege communication, cannot be compelled to testify

The Indian Evidence Act 1872 has provided certain privileges to certain class of witness.
  1. Privilege given to judges and Magistrate under Section 121
  2. Privilege given to Husband and Wife during marriage under section 122 
  3. State privilege or Privilege State Documents under section 123 
  4. Official Communication under section 124 
  5. Privilege to Magistrate, or Police Officer or Revenue Officer regarding information to communication of offence under section 125 
  6. Professional Communication under section 126 
  7. Interpreters under section 127 
  8. Privilege not waived by volunteering evidence under section 128 
  9. Confidential Communication with legal advice under section 129 
  10. Production of title Deeds of witness not a party under section 130 
  11. Production of documents or electronic records which another person, having possession, could refuse to produce under section 131 
  12. Privilege from incriminating question under section 132 

Privilege given to judges and Magistrate under Section 121

Section 121 of Indian Evidence Act states “No Judge or Magistrate shall, except upon the special order of some court to which he is subordinate, be compel to answer any question as to his own conduct in court as such judge or magistrate or as to anything which he came to knowledge in court as such judge or magistrate, but he may be examined as to other matter which occurred in his presence which he was acting

If we simplify more this section, Section 121 of Indian Evidence Act 1872 gives privilege to Judge or Magistrate that they cannot be compelled to answer any question related to 
  1. which was conducted in his court or
  2. any other matter came to his knowledge 

For Example “A” on his trial before the Court of Session says that a deposition taken by a magistrate “B” was improper, No court can compel to answer the question of A, except upon the special order of a Superior court. Sometimes judges or magistrate can speak strictly so that witnesses can speak the truth,

So section 121 is aimed to give privilege to trail court whether he is a judge or magistrate. This section is intended to safeguard the dignity and integrity of the judiciary. Whatever tings comes to knowledge of Such judges or Magistrate, and during the period of trial his conduct are not liable to be questioned by the individuals. If such protection is not given then a large number of cases would be filed against the trial judges or magistrate which leads to the hindrance and destruction of integrity of the judicial proceeding.

However this protection is not extended to an importer judicial action, which may be raised before superior court and on a special order of such a superior court, such judge or magistrate may be questioned for the improper judicial Action

Privilege given to Husband and Wife during marriage under section 122

Section 122 of Indian Evidence Act states that “No person who is or has been married shall be compelled to disclose any communication made him during marriage by any person to whom he is or has been married, nor shall be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consent, except in suit between married person, or proceedings in which one married person is prosecuted for any crime committed against the other”

If we more simplify, Husband or wife cannot be compelled to disclose any such communication in any suit or proceeding against other. Neither wife can compel nor Husband to give statement against each other, not only compel, shall not be permitted also.

One more things in this section to be interpreted, “During marriage“meaning of this word is as continuance of the marriage. Any communication made either prior to marriage or after the termination of marriage is not protected under section 122 of Indian Evidence Act 1872

Under Section 122 of Indian Evidence Act 1872, a married person shall not be
  1.  Compelled to disclose any communication made to him during marriage by any person to whom he is married
  2. Permitted to disclose any such communication, except 
    • When the person who made it or his representative in interest consent
Meaning of this part is that Even if one of the spouses is willing to disclose a communication, he or she will not be allowed to disclose it unless the person who made it or his representative in interest consents, except in suits or prosecutions between married persons. The consent cannot be implied. It is incumbent upon the court to ask the party against whom the evidence is to be given.
    • In suit between husband and wife
    • In criminal proceeding in which either husband or wife is prosecuted for any crime committed to other. 

There is distinct between section 120 and section 122, The object and purpose of section 120 and section 122 are quite different. Section 120 enables husband and wife can be a competent witness against each other. It has also laid down that in criminal case, The wife (if the accused is husband) or the husband (if accused is wife) shall be competent witness. Thus according to section 120 the wife or husband of a party to a proceeding is a competent witness and capable to testify. Whereas Section 122 gives protection to the communication during marriage on account of public policy and provides domestic peace and conjugal confidence between the spouses. Section 122 is privilege section given to the spouse and it extends to the interest of a third person whereas section 120 is confined to the interest of spouse only.

For an example, If “Husband” is prosecuted in a case murder, it cannot to be compel to his wife to disclose anything knows her.

But it is important that in Section 120 of Indian Evidence Act 1872 says that husband and wife is competent to witness against each other but section 122 privilege that they cannot be compelled to disclose any communication.

There is some judgment in regards to that

Ram Bharosey vs State of UP AIR 1954 SC 704

In this case, the Supreme Court held that the Statement of the accused to his is inadmissible under Section 122 but where there is required, the statement can be taken in due of proper judgment.

Where the circumstances is such as, statement of spouse is required to deliver proper judgment in this situation statement can be taken also.

Nagaraj vs State of Karnataka 1996 2901

In this case, it was held that where an accused is alleged to have made an extra judicial confession to his wife about raping and killing her sister, the evidence of wife was held to be inadmissible. A wife was not allowed to tell what her husband told her about a murder with which he was charged.

M.C verghese vs T.J Pannam, AIR 1970 SC 1876

In this case, it was held that in interpreting the rule in section 122, it is not material that the relation of husband and wife should be subsisting at the time when the evidence is required to be given so where a woman has been divorced and had married another husband was offered as a witness against her former husband to prove a communication during the covertures, it was held that in competent to do so

It has been further held that only communication is protected from disclosure but not the acts or conduct. The ban of section 122 is confined to communications only.

A wife can testify to the deeds of her husband of which she was eyewitness. The conduct of spouse is not protected and not privileged by section 122.

For example, The husband came home and hide knife in a box. The wife can depose the same fact before court, taking and entering into house and hiding knife comes under conduct but if husband says to his wife, “I will shoot a gun to my opponent”, the wife cannot depose these words before court.

State privilege or Privilege State Documents under section 123

Section 123 of Indian Evidence Act states that “No one shall be permitted to give any evidence derived from unpublished official records related to any affairs of state, except the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

Section 123 states that in order to claim privilege there must be certain pre requisite condition namely
  1. The document must be unpublished official record
  2. It should related to the affairs of state 
  3. It can be admitted in evidence with the permission of the head of department concerned, who shall give or withhold such a permission 
Section 123 applies to unpublished official records only. The word published in section 123 does mean only those documents or which are printed for general publication. Even if a secret documents or a part of it is revealed, the document will loose the sanctity as unpublished records because there cannot be any guarantee as to whom and it what contingency the other parts may also be known.

For an example, untill the governor signs a G.O entire correspondence and documents related to the G.O are unpublished records.

Case Law

State of U.P vs Raj Narain AIR 1975 SC 865

It has been held that blue-book which was marked as secret document and parts of which had already been disclosed in the Lok Sabha, debates and in writ proceeding before the high court could not be held to be unpublished record within the meaning of section 123.

Thursday, October 1, 2020

Who is more powerful Center or State

Who is more powerful Center or State

Article 245 – 255(division of power between the Centre and State)

The Federal structure of the Government is one of the essential and important features of the Indian Constitution. In the Indian Constitution, this division of power between the Centre and State is provided under Part XI and Part XII.

This division of power is given Artice 
  1. Legislative Relation between Union and State Article 245-255
  2. Administrative Relation between the union and State Article 256-263
  3. Financial Relations between Union and State - 264-293 
There are two forms of government Unitary and Federal, In Unitary form, maximum power or only source of power lies with state.

Important examples of this form of government are while in Federal form of government, the powers are divided between both centre and state. Classic examples of this form are See, in India only during period of emergency we follow the unitary form of government Meaning, at the time of Emergency, more power rests with the Center and states are left with very less power otherwise, during normal times India has a federal form of government as I have told you already the main feature/ characteristic of federal form of government it division of power between Center & the States

The power between Center and States is divided under 3 heads
  1. Legislative relations,
  2. Administrative relations & 
  3. Financial relations 
Legislative relations have been discussed in the constitution from Article 245 to Article 255 the relations of Center and state, have been divided in 2 aspects

Territorial jurisdiction means who can make law applicable over a over certain and specific territory while subject matter jurisdiction refers to subject matter of laws be it agriculture, electricity, water projects etc. who can makes laws related to such specific subject matters

Territorial jurisdiction we will understand it from here that how is territorial jurisdiction is decided for that, the most important article is article 245, there are two clauses to this article for purpose of understanding, 

It has divided article 245 in 3 categories foremost,

First, Article 245 says that parliament has the power to make laws for the entire territory of India, or for some part of it
2nd, it says that state legislature has the power to make laws for the entire territory of that state or part of territory of that state so what we have understood until here is that Parliament has power to law for entire of India or for some part of it and legislature has power to make law for an entire state or some part of it. 

3rd part talks about extra territorial operation, it means that the power that parliament possesses to make laws it does not mean that parliament can make laws only for people residing in India or their property

No, Parliament also possesses extra territorial jurisdiction meaning those persons or those properties situated outside India Parliament can govern them as well This extra territorial power is only possessed by the parliament, and not by the state but in case where Parliament makes extra territorial laws for persons residing outside India and their property How will it be determined if the law is right or wrong?

So for that, we have territorial nexus test famous case for this test is you might have came across this in Company law as well what happened in this case was that there was a company registered in England Now this company was a partner of an Indian firm Indian Tax authority wanted to tax the entire income of this company it was said that since the major income of this company comes from India Indian tax authority has the power to tax that income so the territorial nexus test says that if the parliament wishes to make an etra territorial law and the subject matter which such a law is to govern there must be a reasonable connection between both so what have we learn untill now

That through article 245 that parliament has the power to make law for whole of India or some of its part similarly, state has the power to make law for whole of the state or some part of it but parliament also has power to make extra territorial laws state does not have this power from here, we question arises, which is asked in many exams that under Article 245, the law making power that parliament possess is that absolute? Answer to this would be NO.

Parliament does not enjoys absolute power under article 245 and these are 3 exceptions to it 1st exception is Article 240 which says that the 4 union territories for these 4 union territories, President has power that for their Peace, Progress & Good Governance and he can make regulations The extent of power of president to make regulations is so much that for these 4 territories he can amend, modify or repeal the laws of Parliament

2nd exception is 5th schedule, where scheduled areas are covered. this exception says that the governors of these respective state have powers that that at any point of time they can declare that in these tribal areas laws of parliament shall not apply

3rd exception is that of 6th schedule see these states the tribal areas of these states 6th schedule says that the governors of these states can at any point of time say that the specific laws of parliament will not be applied in these areas, or they should be modified or amended so these 3 are exceptions to parliament's law making powers

After territorial legislation, 2nd aspect is subject matter legislation referring to who has power with regards to which subject matter to make laws

lets understand that the power that centre and state have been categorized by 7th schedule in 3 lists first in Union List, also known as List I 2nd, State list, known as List II and concurrent list, known as List III Union list include all those things which are of national importance like defence, atomic energy etc.

so there are a total hundred of items here parliament has exclusive right to make laws related to these items similarly, those items are covered in state lists, which are of local importance/ regional importance e.g. agriculture, police, prisons, all these things. so there are total 61 such items here state has exclusive power to make laws related to these items and 3rd is List III known as the Concurrent List it contains such 52 items, in relation to which state and the Union both can make laws at this point,

Let's discuss two articles 1st we have article 246, which says that whatever articles are there in List I and parliament can make laws on any of them Before understanding about the

2nd article, if a new item/ subject matter comes up, who will make laws on that? this question has been answered in article 248 it is also known as residuary power article 248 says that if a new subject matter/item comes up, which has not been covered in any of these 3 lists and it is required to make a law on that so that residuary power (to make law on such matter) lies with the Union so this was article 246 and 248 so normally, a law is made upon the subject matter but in case of conflict, keep this in mind so if there is a conflict in Union list or State list then Union list will prevail if there is a conflict between concurrent list & state list, the concurrent list will prevail so keep that in mind normally, only this subject matter arrangement is followed but his arrangement may be changed in some extra ordinary circumstance. so what such extraordinary circumstances are possible?

There are four circumstances, first at the time of National Emergency/President's rule, Parliament gets the power to make law on any subject matter from state list

2nd is when Rajya Sabha feels that there is a subject matter in state list which is of a national importance and parliament should make a law on that then Rajya Sabha can pass a resolution and then parliament can make a law on that

3rd is, on the request of the State if two or more state legislatures request the parliament that on a particular subject matter, parliament should enact the law then parliament can do that

4th is for the purpose of implementing International agreements for fulfilling them, parliment can make law on any subject matter rof the state list

The federal form of government division of power between the centre and state it is an essential feature of our constitution so the centre and state both of their own subject matters to make laws but as we have said there are many such situations where centre on states' subjects or state on centre's subject want to make a law if such law comes into being, how would we determine if the law is valid or not so to determine this, courts apply a doctrine it is known as doctrine of pith and substance to understand this doctrine,

It is leading case what happened, in this case, was that Money lender, who give away loans to recover them, how many amounts can be taken and how much interest can be taken to regulate that state regulation and Bengal Money lenders Act, 1946 was passed

Why did Bengal pass that legislation? Because money lending is a state subject Money lending is listed in List II- Entry 7 but this Act was challenged by Central Govt. and said that this act also govern promissory notes and promissory note is a central subject under List I - Entry 28 to check if the legislation is valid or not the court applied the doctrine of Pith and Substance and said that whenever you want to find out true nature of any legislation you will see the legislation as a whole meaning its object, its scope & its effect

These 3 things are found out applying the test of this doctrine, the court said the main nature of the Bengal Money Lending Act is to govern the money lending activities and it is incidentally encroaching upon the matter of promissory note, the Act was held to be valid on similar lines we have the case of in this case, law was made regarding sale, import & possession of liquor

The Bombay Prohibition Act, this state legislation incidentally governing import and export as well and import and export was a central subject to determine the validity of the act, court used the doctrine of pith & substance the act was held to be valid


let's discuss Article 254 on this point which talks about repugnancy meaning that if even parliament makes law on the same subject matter, and state makes it too, Article 254 says that for this subject matter, the law made by parliament would be valid and the law made by state would be void so article 254 is the Repugnancy clause.  

We have a clarified topic like legislative relations, subject matter division.

  

Monday, September 28, 2020

Section 7 of Indian Evidence Act 1872

Section 7 of Indian Evidence Act 1872 
Facts which are the occasion, cause or effect of Fact-in-Issue

Facts, which are the occasion, cause or effect , immediate or otherwise , of relevant facts, or fact in issue or which constitute the state of things under which they happened or which afford an opportunity for their occurrence or transaction are relevant

Section 7 leaves the transaction itself, and provides for the admission of several classes of facts under the umbrella of the same transaction which though not possible forming part of transaction, are yet connected with it proper modes, and so are relevant when the transaction itself is under inquiry.

This section based on induction. The relevancy of facts is required to be determined by human experience. What has been the constant cause of a particular effect in the past will be the same in future .

For example, If a living being is cut into pieces on the ground there shall be bleeding and blood will be found on the place of occurrence, by his induction whenever a man finds human blood in great quantity on a particular place, he may be reasonably infer that some living being was cut into pieces or at least severely injured there.

Let’s take another example

“A” was tried for the murder of “B”, The dead body of “B” was found near a bridge in gunny bag . At the trial these fact were proved
  1. The wife of “B” deposited all her ornaments with “A”
  2. “A” took all the money that “B” had for purchasing a truck 
  3. “B” demanded money from “A” on a particular date and time and asked “B” to come and take your money 
  4. “B” came there and stayed and slept with “A” on that night. 
Of these facts , the fact of “A” being indebted to “B” and B’s demand for money are relevant as the cause of murder, and the fact that “B” went there and stayed and slept are relevant as the occasion of murder and opportunity for it.

In cases of murders, marks produced near or at the place of the scene of crime by the accused and the deceased on account of the struggle ensuing between them, prior to murder, and also the finger prints and foot prints found at the scene of crime all are relevant under section 7 as effect of a fact-in-issue

Section 7 of Indian Evidence Act 1872 provides for the admission of several classes of facts which are completed with the transaction under inquiry in particular mode
  • As being the occasion or cause of facts
  • As bing its effect 
  • As giving opportunity for its occurrence 
  • As constituting the state of things under which happened 
Section 7 lays down that the facts which are cause of effects of the fact in issue or relevant facts are relevant. It also lays down that the facts which are occasion or which afford an opportunity for the occurrence of the facts in issue or of relevant facts, are relevant. Such relation makes it possible when the existence of the fact in the claim of causation is asserted to test the truth of the

Interpretation of this section is that
  • Occasion of Fact-in-issue or relevant fact
  • Cause of Fact-in-issue or relevant fact 
  • Effect of Fact-issue or relevant fact
  • State of things 
These are all are relevant and admissible

There is nothing technical in this section, only we have to understand, Relevant and Fact in issue. Earlier we have already said that Fact –in-Issue is very technical, it troubles to understand Indian Evidence Act.

Let us simplify

Fact-in-issue means “Matter of issue” मुद्दे की बात या झगडे की जड़
Suppose A prosecutes B for stealing his Mobile phone.

A said B came yesterday at my house when I was not available and he has stolen my phone But said No I did not go his yesterday and went to Gurgaon yesterday, so Now B refuses and It became fact in issue.

“A” said I have evidence, whatever “A” bring in evidence it is relevant fact and whatever B will bring evidence in his defense that will “existence of Fact in Issue “

Don’t Jump to conclusion or judgment, this section clears only relevancy and admissibility

Occasion: - Evidence can always be given of the set of circumstances that constituted the occasion for the happening of the principal Fact.

Example

If you say to friend that tomorrow I will go and withdraw money from bank , the next day you withdraw your money while returning extortion caused you.

Your statement “You said to your friend to that you will go and withdraw money from bank “ will be relevant under Occasion. You have given occasion to extort.

Cause: - Cause often explains why a particular act was done. It helps the court to connect a person with the act. The act in question must have been done by the person who had the cause for it. The Word “Cause” border than the “Motive”

For an example Accused was in love with deceased’s wife

Effects: - Every act leaves behind certain effects which not only record the happening of the act but also throw light upon the nature of act.

For an example

A murdered B , marks on the ground, produced by a struggle at or near the place where murder was committed are all relevant facts

Interpretation of The state of things under which they happened

The facts, which constitute the background in which the principle facts happened, are relevant and can be proved under section 7 of Indian Evidence Act , Thus the state of relation between parties or the state of the health of deceased etc. constitute background in which the incident happened .

For Example

In a murder trial evidence was led to the effect that when it became cloudy and stormy, when the electricity failed and when it became very dark the murder was committed. Here the fact of murder is principle fact and other facts show the state of thing under which the principle fact happened.

Case Law

Ratten vs Geginam 1971 AII E.R 801

In this case , the accused was prosecuted for shooting down his wife and he took the defence of accident, the fact that the accused was unhappy with his wife and was carrying an affair with another woman was held to be relevant, as it constituted the state of things between parties.

Spenser Cooper’s Case

In this case, the body of deceased was found in a river and the stomach of the deceased contained no water. The Prosecutor presents the evidence that a person who dies in water, water must have gone in stomach.

The defence tried to produce evidence that a person dying in water does not necessarily take water inside his belly . These facts which being the general consequences of drowning are relevant under section 7 of the Evidence Act 1872.

Levis vs Jones ITLR 152

In this case , some footprints were found near the scene of occurrence. The prosecution led the evidence of a tracker to prove those footprints were that of accused. The evidence are held admissible.

Kasam vs Firm of Haji Jamal 76 IC 327

In this case, plaintiff claimed certain sum of money from defendant. Of that sum certain items were not recorded in the regular kept account book of the defendant. It was held that the absence of entry is admissible to prove want of payment under section 7 of the Indian Evidence Act 1872.

Taantje’s Case

In this case , A young girl was a female servant of a rich man, who was acquainted with every secret of the family. On one Sunday , some precious jewellery was missing. When whole family went to church. The Maid Servant was prosecuted for theft and convicted on the ground that she alone had exclusive opportunity.

After serving the sentence the maid servant was released. On one day she went to market. There a butcher, seeing her started singing, “ What a beautiful body mine”. She knew that butcher was regular supplier of mutton to that rich family and the day of theft also he delivered mutton. The maid servant used to sing that song “ What a beautiful body mine” at the time of her bath and while changing the clothes.

He had stolen jewellery hinting while she had her bath and listened that song. The maid servant went to police and gave report against butcher. Police inquired again and found that real thief was butcher.

Humming the song with words “What a beautiful body mine” by maid servant on the date of incident, and the repetition of the same by the butcher in market would come within purview of the Section 7 of Indian Evidence Act 1872.

Sunday, September 27, 2020

Can Six month locking period be waived in Divorce by Mutual Consent?

Can Six month locking period be waived in Divorce by Mutual Consent under Section 13B of Hindu Marriage Act 1955 ?


Before it must have knowledge, What is Divorce by mutual Consent ?

Divorce puts an end marital tie. When the parties failed to end their differences amicably, a divorce petition may be submitted by any of the spouse to the district court on any of the grounds given in section 13 of the Act. Sometimes both the spouse decided to live separately with amicably and peacefully.

Hence they may take the divorce on mutual consent. Divorce by mutual consent was not incorporated in the original Act of 1955, It has been inserted in the Section as 13B by Hindu Marriage (Amendment) Act 1976.

Section 13B states as

(1) Subject to provision of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both Parties to a marriage together, whether such marriage was solemnized before or after the commencement of the marriage law(Amendment) Act, 1976(68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage shoul be dissolved.

(2) On the motion of both parties made not earlier than six months after the date of presented of the petition referred to in Sub section(1) and not later than eighteen months, after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of decree.

Section 13B and 23(1)(bb) indicate that in the case of a joint petition by husband and wife for a dissolution of marriage by a decree of divorce petition has to be presented to the District Court supported by affidavit of both parties . It must be proved.
  1. That the parties have been living separately for a period of one year or more
  2. That they have not been able to live together 
  3. That they have mutually agreed that the marriage should be dissolved and
  4. That the consent of the parties has been obtained 
If all these four conditions are fulfilled, divorce cannot be refused, provision laid down under Section 13 B are mandatory provision

Can locking period of six month On the motion of both parties made not earlier than six months after the date of presented of the petition referred to in Sub section(1) and not later than eighteen months?

In case of Sangeeta Singh vs Pradeep , 2 Sep 2020, High Court Pumjab and Hariyana

(Divorce) Both parties are educated, so it can be assumed that they understand their best interests: Punjab and Haryana High Court exempted from six months cooling-off period

Noting that 'both parties involved in this marriage are over 30 years of age and educated, it is therefore presumed that they understand their best interests', the Punjab and Haryana High Court mandated a mutually agreed divorce case Ordered to be exempted from the six-month cooling-off period.

The petitioners filed a reconsideration petition before Justice Sanjay Kumar seeking dissolution of their marriage through a decree of divorce under Section 13-B of the Hindu Marriage Act, 1955 on the basis of mutual consent. The divorce petition in this case was filed in June 2020. After which he filed an application for exemption from the statutory waiting period or waiting period of six months prescribed under Section 13-B (2) of the Act 1955. But the Additional District Judge, Mohali, under the order dated 06 August 2020, rejected the said application.

Relying on the judgment given by the Supreme Court in the Amardeep Singh case in 2017, the single bench reiterated that

"Broadly, such exemption of locking period of six month can be considered only when (a) other than the statutory period of one year of separation of the parties under section 13-B (1), section 13-B (2) The statutory period of six months specified in it should be completed before the first motion, (b) all attempts to mediate / compromise to reconcile the parties have failed and any further efforts will be successful in this direction. (C) when both the parties have actually settled their differences including alimony, children's custody or other pending issues, (d) the waiting period is only exacerbating their suffering. ''

The Hon’ble Court said that the petitioners got married in November 2010 and have been living separately since January 2018. According to him, there is no possibility of reconciliation and they are firm in their resolve to divorce. Apart from this, the petitioners have also prepared an MoU (Memorandum of Understanding) on ​​10 June 2020 disposing of all the issues. In such a situation, there is no dispute regarding the custody of his minor daughter.

The bench said, "In view of above situation, it is an opinion of court that it was an suitable case for the Additional District Judge to exercise his right in favor of the petitioners citing the law laid down by the Supreme Court and waived it . " waiting period.

At the same time, the bench quashed the order of 6 August 2020, under which the statutory waiting period was refused to be abolished or waived.

Friday, September 25, 2020

Principle of Res Gastae (Section 6 of Indian Evidence Act)

Principle of Res Gastae (Section 6 of Indian Evidence Act)

Relevancy of facts, forming the same part of the transaction, it is also called the principle of Res Gastae

Before we start the interpretation, first we must know what the same part of the transaction is?

Statements of bystanders witnessing a transaction are relevant if they are made while the transaction is in progress or so shortly before or after it as to form part of the same transaction

So here will explain with an example

“A” along with one more chasing to B and at an isolated place, they shot dead to B and ran away. But when they were chasing some people saw, and when they were running away some people also saw but none saw shooting so whatever people saw is the same part of the transaction of shot dead of B.

Take another Example

“A” Begins assaulting “B” , “C” and “D” begin shouting that “A” is assaulting “B”. The Fact that “C” and “D” shouted about the assault when the transaction was on, is relevant

And if we simplify more, Lets take an latest example

In case of Shushant Sing Rajpur Suicide case, whatever fact has collected which tends to abetment of suicide is same part of transaction.

Fighting of Rea Chakraborthy, leaving house, or any more which connects to abetment all are same part of transaction.

In hindi we say “ Kadi se Kadi Judna” so all these “Kadi” is same part of the transaction

Section 6 of Indian Evidence Act 1872

As per section 6 of Indian Evidence Act 1872, Facts which are relevant whether they occurred same part of transaction at same time and place or at different time or place and such fact is not in issue are connected with fact in issue or forming same part of transaction.

It is not necessary that fact is of at time of occurrence of incident, it may be before incident or it may be after the incident, it is also not necessary that such facts must relate to place of occurrences of incident.

So Principle of Res Gastae is challenged by defence that such fact is not relevant but the principle Res Gestae clears that any facts which are connected with fact in issue or forming same part of transaction are all those relevant.

For an example

A is sitting in Delhi and made a Plan of Dacoity in Mumbai, he executed as per plan in next month. So all these forming same part of transaction in different place and time

Doctrine of Res Gestae

The doctrine of Res Gestae is criticized as it includes within the ambit, hearsay evidence as well , which is not considered to be a good piece of evidence . In RV Foster 1834, the witness had seen only a speeding vehicle but not the accident itself. The person injured explained to him the nature of the accident. The witness was allowed to give an account of what the deceased said , although it was only a derived knowledge , yet part of Res Gestae

The rule of Res Gestae is a confusing one, every part of rule is covered under some other section of the Act . Moreover, Since there are no limits to the doctrine(any fact could be included as Res Gestae) it also causes confusion regarding the limitation of other section. Thereby, because of its confusing nature, the doctrine has not been included in the Indian Evidence Act

Statement as Res gestae

Statement is also included as a part of same transaction. These conditions must be satisfied for the statement to be treated as part of same transaction.

  1. Statement must be made during transaction
  2. Statement must be spontaneous as to exclude any possibility of them being fabricated. 
  3. They must relate to and explain the act they accompany, and not independent facts prior or subsequent thereto 
  4. The statement must be a statement of facts and not an opinion 
  5. Hearsay evidence though admissible to explain, are not always taken as proof of the truth. 
  6. Statement made in the course of the investigation of a crime is not relevant. 

Case Law

R.M Malkani vs State of Maharashtra 1973 SCC 471

In this case , Hon’ble court held that a contemporaneous tape-record of a relevant conversation is a relevant fact. It is Res Gestae.

Basanti vs State of H.P 1987 SCC 227,

In this Supreme Court held that where shortly after a murder, the person suspected of the murder describe the absence of the deceased by saying that he had left the village, the court held that statement as part of the same transaction and thus relevant

Bishna vs State of W.B AIR 2006 SC 302

In this Supreme Court held that in a case of murder, witnesses came to the place of occurrence immediately and found dead body of the deceased and other injured victims. The mother of the deceased was weeping as also injured witness present there. They heard about the entire incident from injured witness including the role played by each of the accused and others. Hence the evidence of said witness would be admissible under Section 6 of Indian Evidence Act 1872.

Hadu v State, (1950) Cut 509.

In this Hon’ble court clears that What is admissible under this section is a fact which is connected with the fact in issue as "part of the same transaction". A transaction may consist of a single incident occupying a few minutes or it may be spread over a variety of facts, etc., occupying a much longer time and occurring on different occasions or at different places. Where the transaction consists of different acts, in order that the chain of such acts may constitute the same transaction, they must be connected together by proximity of time, proximity or unity of place, continuity of action and community of purpose or design

Mohd. Islam v State of UP, 1993 Cr LJ 1736

In this case it was said that Where the witness deposed that immediately after the occurrence, his niece told him that his wife was shot by the accused, it was held that his statement was admissible under section 6

Stephen's Digest of Evidence, Article 3.

If facts form part of the transaction which is the subject of enquiry, manifestly evidence of them ought not to be excluded. The question is whether they do form part or are too remote to be considered really part of the transaction before the court. A transaction is a group of facts so connected together as to be referred to by a single legal name, as a crime, a contract, a wrong or any other subject of inquiry which may be in issue

Rattan vs Queen Reginam

In this case a man was prosecuted for the murder of his wife. His defence was that the shot went off accidentally. There was evidence to the effect that the deceased telephoned to say: "Get me the police please". Before the operator could connect the police, the caller, who spoke in distress, gave her address and the call suddenly ended. Thereafter the police came to the house and found the body of a dead woman. Her call and the words she spoke were held to be relevant as a part of the transaction which brought about her death. Her call in distress showed that the shooting in question was intentional and not accidental for no victim of an accident could have thought of getting the police before the happening.

Om Singh v State, 1997 Cr LJ 2419 (Raj).

The accused intruded into the courtyard of the victim's house at night and inflicted gun-shot injury on her. She was able to identify him. She stated before her death that the accused was standing with a gun before her. She explained the time and space proximity between her and the assailant. The statement was held to be a part of the transaction and relevant as such under section 6. The eye-witness spontaneously told the persons reaching the place immediately after the occurrence that the accused killed the deceased. Such persons derived knowledge about the incident spontaneously with the happening from the eye-witness. Their evidence was held to be relevant under section 6 as forming part of the same transaction



Wednesday, September 23, 2020

Section 5 of Indian Evidence Act 1872

Section 5 of Indian Evidence Act read as Evidence may be given of facts in issue and relevant facts.

We have already discussed previously, Fact-in-issue is very technical if will not pay attention, honestly it disturb you to understand the entire Evidence Act.

Explanation of Fact-in-Issue

Fact-in-Issue means matter in dispute, for example, Suppose “X” lodged a complaint against “Y” for theft of his Mobile, if “Y” accepts then there is no issue but If “Y” refuses then it becomes a matter in dispute or fact-in-issue.

Here you have understood “Fact-in-issue”, Now what is the existence of Fact-in-issue, so in the above illustration “X” and “Y” are two parties, X’s allegation is Y has stolen his mobile, and he has to give the evidence against “Y” so whatever “X” will give evidence that would be “Non-existence of fact-in-issue” , When “Y” will give evidence in his defence that would be “Existence of Fact-in-issue”.

So the interpretation of section 5 of the Indian Evidence Act, any fact which inference either existence of fact-in-issue or non-existence of fact in issue are relevant.

Relevant and Admissibility

Relevant means that which is logical probative. Admissibility is not based on logic but on law and strict rule. The term relevancy and admissibility are not co-extensive or interchangeable terms. All admissible evidence is usually relevant but all relevant is not admissible. So only relevant facts are admissible in the court,

According to Section 5 of Indian Evidence Act, Evidence May be given of the existence or non-existence of every fact in issue and of relevant facts and of no others. This section shall not enable any person to provide evidence of the fact that he is disentitled to prove any provision of law for time being in force relating to civil procedure.

Evidence can be given without any fact unless it is either a fact in issue or one is declared relevant under the following sections. Thus, evidence of all collateral facts, which does not inference with the matter in dispute, is excluded to save the public time.

Meaning of this, If any evidence which does not inference or which does not connect directly or indirectly with the matter in dispute, such evidence is baseless and it should be excluded to save courts time, and the reason is that such evidence tends to consume time, to deviate the mind of juros from the points in issue, and to excite prejudice and mislead moreover the adverse parties, having had no notice of such evidence is not prepared to rebut it.

So Section 5 of Indian Evidence Act deals with a relevant fact, according to this section, Evidence may be given of facts which in connection with other facts, make the existence of a relevant fact

Case Law

Balaji Gunthu Dhule v State of Maharashtra, (2012) 11 SCC 685.

While the entire evidence of eyewitnesses was not accepted by the High Court, it was held by the Supreme Court that the accused cannot be convicted for the offense under Section 302 IPC on the basis of post mortem report only. Post mortem reports must be filed with the evidence of eye witnesses and there may not be enough evidence to reach the conclusion to convict the accused.

Stokes' Anglo Indian Codes, Vol II, p 854, fn 1.

In this The words "and of no others" has been cleared, Impliedly impose a duty on the court to exclude evidence of irrelevant facts, Irrespective of objections by the parties. In criminal proceedings this duty is expressly imposed by the Code of Criminal Procedure, section 298 (omitted by the Code of 1973). In civil proceedings, see the Code of Civil Procedure, 1908, O XIII, rule 3.6

Dinesh Borthakur v State of Assam, (2008) 5 SCC 697 .

While the services of a sniffer dog may be taken for the purpose of an investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused

Ram Bihari Yadav vs State of Bihar AIR 1998 SC 1850,

Hon’ble Supreme Court speaking through Mohd. Quadari J and Said that more than often the expression relevancy and admissibility are used as a synonym but their legal implication is different because more often than not facts which are relevant not be admissible.

For example the communication made by a spouse during the marriage, the communication between an advocate and his client though relevant but is not admissible.

so also the facts which are admissible may not be relevant. For example, Question permitted to be cross-examined to test the veracity or to impeach credit of witness though not relevant are admissible

Monday, September 21, 2020

Section 4 of Indian Evidence Act 1872: May Presume, Shall Presume, and Conclusive Proof.

PART I RELEVANCY OF FACTS

CHAPTER I PRELIMINARY

Section 4 of Indian Evidence Act 1872: May Presume, Shall Presume, and Conclusive Proof.

May Presume: The meaning of presumption is a rule that Hon’ble courts and Judges shall draw inference from the existence of a certain fact or may also say presumption is a legal or factual assumption from the existence of a fact which is presumed as proved.

The meaning of “may presume” is that Hon’ble court has discretionary power to use his mind to presume as proved. It is upon the court that he will presume as proved any fact. When the court has presumed any fact in favour of any party such party will not be bounded to prove but against whom it has been presumed as proved, he will have full right to rebut.

Shall Presume: In the section where the word “Shall presume” has been used, the court has to be presumed as proved, and the court has not any discretionary power in such sections but against whom it has been presumed, has full right to rebut such presumption whether it is in “ May presume or Shall Presume”

Note: Presumption wherever is always rebuttable

In case Babukhan v State of Rajasthan, AIR 1997 SC 2960: 1997 Cr LJ 3567; Mayank Rajput v State, 1998 Cr LJ 2797 (All). In this case, Supreme Courts clarified, The term "presumption", in its largest and most comprehensive signification, may be defined to be an inference, affirmative or disaffirmation of the truth or falsehood of a doubtful fact or proposition, drawn by a process of probable reasoning from something proved or taken for granted.

Conclusive Proof: A fact will be called as conclusive of the other fact If one fact is proved then the other will also be considered as proven. No need to prove or disprove the second fact.

For example A marriage certificate is conclusive proof of marriage

Case Law

Minoti Anand v Subhash Anand, AIR 2011 Bom 61 : 2011 (2) Mah LJ 812 : 2011 (5) Bom CR 624

In a matrimonial dispute, the marriage was said to have been performed according to Hindu customs. Thereafter they married as per Japanese Custom and the registration certificate showing their marriage under section 17 of the Foreign Marriage Act, 1969 was issued. It was held by Bombay High Court that upon the factum of registration of marriage, the solemnisation of the marriage becomes a conclusive fact under section 14(2) of the Foreign Marriage Act, 1969. Thus, under section 4 of the Evidence Act, no evidence with regard to the fact that marriage was also solemnised under the Hindu Marriage Act, 1955 can be allowed

Nirmal Das Bose v Mamta Gulati, AIR 1997 All 401 .

A marriage certificate issued under the Special Marriage Act, 1954 is a conclusive evidence of the solemnisation of marriage under the Act and also of compliance of formalities and signatures of parties and witnesses. The genuineness of the compliance procedure is a different question. It remains questionable

Emperor v Shrinivas, (1905) 7 Bom LR 969 . For the clarification of expressions "may presume" and "shall presume" see Haradhan Mahatha v Dukhu Mahatha, AIR 1993 Pat 129 .

A court, where it "may presume" a fact, has the discretion to presume it as proved or to call for confirmatory evidence of it, as the circumstances require. In such a case the presumption is not a hard and fast presumption, incapable of rebuttal, a presumptio juris et de jure

Gitika Bagechi v Subhabrota Bagechi, AIR 1966 Cal 246 .

See the decision of the Supreme Court in Sodhi Transport Co v State of UP, AIR 1986 SC 1099 : (1986) 2 SCC 486 : 1986 Tax LR 2347 , where the effect on the burden of proof of all the kinds of presumption has been explained. The court further said that these presumptions are not peculiar to the Evidence Act. They are generally used wherever facts are to be ascertained by a judicial process

Where husband and wife were in love and led an amorous life for about eight years before their marriage, both were sound in health and mind and after marriage lived together in a room for months together and had privacy, the presumption was conclusive that consummation of the marriage was an accomplished fact.




Thursday, September 17, 2020

The Indian Evidence Act 1872 Chapter 1( Section 1 to 3)

Chapter-1: Preliminary (Sections 1-3)

Section 1 – Title, Extent and Commencement:

The Indian Evidence Act, 1872 was passed by Legislative Council on 15th March, 1872 and came into force on 1st September, 1872. It extends to the whole of India and applies to all judicial proceedings in or before any court of law.

Court Martial – This Act applies to native Court Martial which were in the existence during British Rule and also applies to the proceedings before Indian Marine Act. According to Section 1 of Act, it will not apply to any Court Martial which has been established under any of the following Act:
  • The Army Act;
  • The Naval Discipline Act;
  • The Indian Navy (Discipline) Act, 1934
  • The Air Force Act.
Interpretation Clause

Affidavits: Section 1 expressly excluded all the affidavits from the scope of the Act. The reason is that affidavits are confined to such facts as the deponent is able of his own knowledge and belief to prove. Of course, the court may order any fact to be proved by an affidavit. Proving a fact by an affidavit cannot be given in accordance of the Evidence Act. In Civil proceedings, it is given as per Order 19, Rule 1-3; CPC and in criminal proceedings, Sections 295 to 297 deal with it.

Arbitrator: According to Section 1, this Act does not apply to proceedings before an Arbitrator. But Arbitrators are bound to follow the rules of natural justice. The reason is that the object of submission to an Arbitrator is to avoid the complicated procedure of a regular trial. Thus, the Arbitrators have no power to administrator on oath and need not examine witness. They can obtain information in any way as they think fit but, must always give a fair opportunity to all parties.

Section 2 has been repealed by the Repealing Act, 1938.

Interpretation clause (Section 3)

This section contains definitions of certain important terms. The very first term that has been defined is “court”. It is defined as except Arbitrtator, “including all Judges and Magistrates, and all persons, legally authorized to take evidence”. This definition of the word “court” is not exhaustive but, is meant for the purposes of Evidence Act alone. As per the definition, arbitrators, even though they may have the legal authority to take evidence, have been expressly excluded from the scope of the Evidence Act.

Fact: 
According to a layman, the term ‘fact’ means an existing thing. It does not refer to a mental condition of which a person is conscious. However, according to the definition contained in the section and the illustrations appended to it; statements, feelings, opinions and state of mind are as much fact as any other fact which is tangible and visible or any other circumstance of which, through the medium of senses we become aware. The illustrations appended to the section amply exemplifies the position that state of mind, opinions, statements, etc. are as much a “fact” as any other visible or tangible thing. 

According to a common man, the word 'fact' means existing thing. It does not refer to the mental state for which a person is conscious. However, according to the definition contained in the section fact means anything which can be known through our senses that is fact.

It is more simplify that Anything which can be perceived by our ear, smell, eyes, or by touching a fact, apart from these relation of things and state of things are also a fact.

Interpretation of relation of things means, there must be some relation between parties, Suppose A and B are accused of murder of C, if there is any enemy with C that a fact and it comes under relation of things.

Any state of things means, whatever the situation, whatever the condition, whatever the stage of things which can be perceived by our sense is a fact

For an example “I smelt urine” that statement is fact”

“I saw ghost yesterday night” this statement is not a fact it cannot be perceived through our sense.

“Any mental condition of which any person is conscious” meaning of this sentence is if anyone knows that “what is going in others mind” is a also fact.

State of mind, A person who knows something about the mind other person is a fact.

For an example A and B are friend , A knows that B is aggressive so might have done this offense this statement is also a “Fact”

Illustrations
  • I saw that Mohan jumped from wall
  • Sohan heard something.
  • He said certain words is a fact
  • He has certain opinion, has a certain intention is a Fact,
  • He acts in good faith or fraudulently is also a Fact,
  • He uses a particular word in a particular sense is a Fact,
  • He was there at a specified time.
  • The consciousness of a particular feeling is a fact.
  • Sachin has certain reputation is a fact.
Relevant Fact

The list of facts, which are relevant, is to found in the provisions contained in Section 6 to 55. But the Act gives no general definition of the term ‘relevant fact’. Generally speaking, a fact is said to be relevant to another if by itself or in connection with other facts it renders the existence of a fact in issue, either probable or improbable. Relevancy implies relationship and such, relationship with the facts in issue as convinces or has a tendency to convince the judge as to the existence or otherwise of the facts in issue. 

A fact in order to be relevant must be connected with the facts in issue or with any other relevant fact in any of the ways referred to in Section 5 to 55. A fact that is not connected is not a relevant fact. The scheme of the Act makes all relevant facts admissible. However, there is a difference between the two which will be considered at a later stage.

Relevant facts are those fact which directly and indirectly connected with other facts in common course of event, which proves or renders probable the past, present or future existence or non existence of other.

Facts in Issue

Fact is issue is very technical, it makes difficult to understand Evidence Act if do not pay attention,

Facts that are alleged by one party and denied by the other in any suit or proceeding are said to be facts in issue.

As per the bare act it is clear that which is claimed in a suit or proceeding by one party and denies by another parties

It means, Suppose A and B are party in a suit or proceeding, if A says that this is my ancestral property and B denies the right of A, the moment he denies it become “Fact-in-Issue”

Example 1 – A dies intestate. One D enters into possession of his property. S files a suit for possession against D alleging that she is a sister of A, that she

Alone is the heir of A. D files a written statement contending that she is the daughter and the only heir of A and that S is not a sister of A. In this case, the Court in order to give a decision has to decide –

A dies intestate, D is in possession of his property. S filed a suit for possession against D, alleging that she is A's sister, that she

A. alone D. Heir's filing a written statement that she is A's daughter and sole heir and not S's sister. In this case, the court has to decide for awarding -
  • whether S is a sister of A;
  • whether D is a daughter of A;
  • whether S is the only heir of A.

From the facts (1) whether S is a sister of A (2) whether D is a daughter, (3) whether S is the only heir of A, the existence or non-existence of right of S to the property of A necessarily follows. Therefore, they are facts in issue.

Document: 

Document means any substance expressed or described by means of letters, fingers, or marks on any substance, or for more than one of the means intended or intended to be used for the purpose of recording that case.

The word document properly encompasses all the physical substances on which men's ideas are represented by any other type of writing or any other species of traditional mark or symbol. Thus the wood marking on which bakers, milkmen, etc. indicate, the number of loaves or the loaves of milk given to their customer is documented as the most elaborate deeds.

For an example Photograph, writing notes, words printed, map, lithographed, any plan in written form, inscription on a metal plate or on stone or caricatures are all documentary evidence.

Evidentiary value of Photograph

In the case of L Choraria vs State of Maharashtra AIR 1968 SC 938, Hon’ble court said that if the court is satisfied that there was no trick photography and the photography is above suspicion, the photograph can be received in evidence . But the evidence of photograph to prove writing or handwriting can only be received if the original cannot be obtained and the photographic reproduction is faithful and not fake or false.

Evidence

Meaning of evidence is the truthiness of any statement, things or matter or its in original sense the state of being Plain, apparent or notorious. Under the act no clear definition of the term evidence has been provided.

This section merely states that what evidence include. In its real sense evidence means anything which establishes the principle of fact or the issue in question before court

The definition in this act included two types of evidence
  1. Statement of witness( oral form of evidence)
  2. Documents

Types of Evidence

Direct Evidence – It is the evidence of what the witness has personally seen or gathered from his senses it is also include production of an original document. Direct here is as opposed to to hearsay and circumstantial evidence. It means any fact which without the intervention of any other fact could prove the fact in issue. Statement of eye witness is direct evidence

For an example

Whatever a person saw the commission of the act which constitutes the alleged crime.

Wedding card is a direct evidence of Marriage,

Indirect Evidence - The hearsay evidence is indirect evidence, any evidence which collaborated with evidence is indirect evidence.

Example

The witness here presents what was told him by a third party.

Suppose Mr “X “ is working in a pvt firm and his friend said to him that he has seen a man was stealing mobile from pocket of other while traveling in Metro.

Statement of Mr. “X” is hearsay or indirect evidence.

Circumstantial Evidence-  It is testimony of witness to other relevant from which the fact in issue may be inferred. In case based on circumstantial evidence, such evidence should be so strong as to point unmistakably to the guilt of the accused.

Circumstantial evidence includes all the relevant facts. It is not secondary evidence, it is merely direct evidence applied indirectly.

But facts that happened sudden, such as road accidents or crimes or tricks, do not leave much direct evidence behind. They execute it ruthlessly under the cover of darkness or secrecy. They silence their victim’s altogether and do not leave any trail of evidence behind.

In such cases, the main event will have to be reconstructed before the Court with the help of surrounding circumstances such as the cause or the effects of the event.

Circumstances sometimes speak as forcefully as does the direct evidence. When footprints are found on sand; it is plausible to infer that someone must have gone that way and also from the shape of footprints it can be ascertained as to whether those are of man or of a bird or of an animal.

In the case of State of UP Vs. Ravindra Prakash Mittal, AIR 1992 SC 2045 the Supreme Court made certain observations vis-à-vis circumstantial evidence.

They are as follows:-
  1. The circumstances from which the conclusion is reached must be fully established.
  2. The circumstances should be conclusive in nature. 
  3. All the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence. 
  4. The circumstances should, to a moral certainty exclude possibility of guilt of any person other than the accused. 
The importance which circumstantial evidence assumes in certain cases can be gauged from the fact that in the case of Har Dayal Vs. State of UP, AIR 1976 SC 2055; the Supreme Court sustained the conviction and death sentence of the accused for the murder of a child on the basis of circumstantial evidence alone. 

There were no eye witnesses to the fact of the murder, but, the circumstances had made the chain so complete that there was no escape from the conclusion that within all human probability the child was kidnapped murdered and thrown into the well by none other but the accused. He used to beat his wife and therefore, she had gone back to her parents. He tried his best and even played false tricks with his father-in-law and brother-in-law, but his wife refused to join him. He went back uttering a threat that he would teach them a lesson. Later, he was seen taking away the ten year old child of his wife’s brother while the child was alone at home

The child remained missing and when the accused was traced in his village and surrounded by the fact of the missing child; he confessed to have taken away the child and promised to return him, but instead managed to escape. On report of a villager, the body of the child was recovered from a well and duly identified. The Supreme Court sustained conviction, which was based solely on the basis of circumstantial evidence

Primary Evidence: - It means original evidence which is given in first instance. Section 62 of the acts deals with it

Secondary Evidence: It is an indirect evidence which can be given in the absence of the primary evidence . Section 63 of this Act deals with it.

For an example Photograph of Qutub Minar is secondary evidence because it cannot present as originally

Oral Evidence: - It is something which the witness has seen or heard personally

Documentary Evidence: It is an evidence of original documents such as evidence of Education is Mark sheet , Date of birth certificate, any evidence which can be produced in the form of documents





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