984

THE LAW OF PROCEDURE

INTRODUCTION:
Law has to play an important role in the administration of Justice. It has a dual role to
play in the attainment ofjustice.

1. Firstly, it determines those rights the breach of which can be remedied by legal
procedure.
2. Secondly, it lays down the procedure for enforcement of legal rights.

From this point of view, law my be either “substantive or procedural”

The substantive Law is that which defines the "rights" while procedural law determines
“the remedies

PROCEDURAL LAW is also called ‘‘law of action1 It is that branch which governs
the process of litigation2. The term action in its widest sense includes legal proceedings

both civil and criminal: It embodies the rule governing the institution and prosecution of
civil and criminal Proceedings. Substantive law is concerned with the ends which the
administration of justice seeks. It deals with the rights and remedies.

‘‘Procedure ” is the mode by which a legal right is enforced, as distinguished from the
law which gives or defines the right, and which, by means of the proceeding the court is
to administer the machinery, as distinguished from its product. What is a matter of
procedure has been very aptly defined by LUSH, L.J. in Poyser V. Minors {1881}
jt

7Q.B.D.329, as the mode of proceeding by which a legal right is enforced as

distinguished from the law which gives or defines the right. The term is commonly
opposed to the sum of legal principles constituting the substance of the two, and denotes

1 Quod ad actiones pertinent.

2 SALMOND Jursiprudence {12th Ed} P. 461.
 985

the body of rules, whereby the rights are effectuated through the successful application of
the proper remedies1

SUBSTANTIVE AND PROCEDURAL LAW.

Unlike the procedural law which governs the process of litigation, Substantive law is
concerned with the ends which the administration of justice seeks to achieve.

Procedural law deals with the means and procedure by which those ends can be achieved.

In other words, it regulates the conduct and relations of courts and litigations in respect of
judicial proceedings.

The substantive law, on the other hand, determines in respect of judicial proceedings. The
substantive law, on the other hand, determines their conduct and relation in respect of the
matters litigated.

DISTINCTION BETWEEN SUBSTANTIVE AND PROCEDURAL LAW:

According to SALMOND the procedural law can be distinguished from the substantive
law on the following grounds:-
(a) Substantive law determines the conduct and relations of the parties “inter se ” in
respect of the matter litigated whereas the procedural law regulates the conduct
and relations of courts and litigants in respects of the litigation.
(b) Substantive law deals with the ends which the administration of justice
contemplates while procedural law deals with the means and instruments by
which the ends of administration of justice are to be attained. For example, the
question that a person has a fight to recover certain property pertains to
substantive law because protection of such a right in among one of the ends of
justice: but in what court and within what time the proceeding should be instituted
is a question of procedural law.

1 Shanti Devi V Krishan Lai, 1979 All L. J. 651.

 986

(c) The question as to what facts constitute a wrong is determined by the substantive
law, while what facts constitute proof of a wrong is a question of procedure.
(d) Substantive law defines the remedy and the right, where as the law of procedure
defines the modes and conditions of the application of one to the other.
(e) Substantive law relates to matters outside the courts whereas the procedural law
regulates affairs inside the courts.

Despite the above distinction, it is not wholly correct to say that substantive law defines
the rights while the procedural law determines the remedies.

There are many rights which pertain to the sphere of procedure, e.g., a right of appeal, a
right to interrogate the opposite party, a right to give evidence on one’s own behalf etc.

Conversely, there may be certain rules determining remedy which may be a part of
substantive law.

For instance, the rules determining classes of agreements which shall be specifically
enforced are clearly substantive in nature. Again, the substantive part of the criminal law
deals, not with crimes alone, but punishments as well. In civil law, rules as to measure of
damages and power to recover them are in the nature of remedial rights, and pertain to
the sphere of substantive law.

It must be stated that most part of the code of criminal procedure and the law of evidence
pertains to procedural law whereas the Indian penal code, the law of contract, transfer of
property, negotiable instruments etc. are the examples of substantive law. Again,
company law is generally regarded mofe as a substantive law though it has so much of
procedure in it since it contains the procedure for formation and management of
companies, mode of increasing, reducing or reorganizing of share -capital, procedure for
company -meetings, amalgamation, winding up etc.
 987

“The first part” of The code of civil procedure in mostly related to the substantive law as
it contains the general principles of the law. “The second part” consisting of orders,
however, pertains to procedural law as they relates to the procedure of civil proceedings.

SALMOND specifically refers to the instances where the rules of procedure which, in
their operation, are wholly or substantially equivalent to rules of procedure which, in
their operation, are wholly or substantially law. It is for this reason he says that the
difference between substantive law and procedural law is one of form rather than of
substance. A rule falling in one category may, by a change in form, pass over into
another without materially affecting the practical issue. These instances are:

1) There is a rule of evidence that in order to prove a contract it must be in writing.

This corresponds to the rule of substantive law that a contract is void unless It is
reduced in writing. Thus, in the famier, the writing is the exclusive evidence of
title while in the latter, writing is a part of evidence itself. Therefore, it is
evidence that the distinction is one of form and not of substance as rightly
suggested by SALMOND.
2) Again, all conclusive presumptions pertain in form to procedure, but in effect they
constitute the substantive part of law. For example, the rule of evidence that a
child below the age of seven is “doli incapex” i.e. incapable of criminal intention
is a part of law of procedure but it differs only in form from the substantive rule
hat no child under that age is punishable for an offence1. To cite yet another

example, originally, a bond was considered as a conclusive proof of existence of

the debt but now it is considered to be creative of a debt. Thus, its form has
transformed from procedural law to substantive law.
3) It has been said that limitation of actions is procedural equivalent of the right of
prescription which is a subject mater of substantive law. The law of limitation
which pertains to procedural law destroys the bond between right and remedy
while the right of prescription, which is its substantive equivalent, destroys the

1
Sec 82 I.P.C.
 988

right itself. Thus in their practical application the effect of both is same although
they differ in their forms.

The rules of pleading and the law of evidence constitute the most important branches of
procedural law. The rule of pleading must be followed by parties to make out their case
before the court of law so as to enable the court to decide the case. The law of evidence
contains the rules by which the proof of disputed facts is governed. Thus these two have
a major role to play in enabling the courts to decide cases1.

It is significant to note hat where procedural law differs from the substantive law, the
latter shall prevail over the former, because the procedural law deals with the form and
not with the substance or the spirit of the law. The law courts would always look to the
spirit of the law and may even go beyond the procedural law for this purpose if so
required. Further, there can be no stopped against the statute and the rule of stopped
would not be allowed to prevail over the provisions of the substantive law.

ELEMENTS OF JUDICIAL PROCEDURE

Every judicial proceeding must contain five essential elements2, namely,

1) Summon,
2) Pleadings,
3) Proof
4) Judgment, and
5) Execution

H Summons
The summons provide to all interested parties an opportunity for appearances in a
court in order to argue their respective cases for the settlement of issues.

1 POLLOCK : Jurisprudence of Legal Theory, P 43-44

2 SALMOND : jurisprudence (12th Ed.) P.464
 989

21 Pleadings
Pleadings are the backbone of litigation. The code of civil procedure, 1909
defines “pleading” as meaning, a “plaint" or written statement1. Pleadings are
statement of the parties in writing setting out their contention of claims or counter
claims.

According to P.C.MOGHA, "pleadings are statement written, drawn up and filed

by each party to a case, stating that his contention will be at the trial and giving
all such, details, so that the opposite party may know what case has to meet or
what is reply to his case

Thus, pleadings are written statements filed by each party to the case. They give
all such details as opponent needs in order to prepare his case.

In India, as a rule there are only two pleadings in a suit, namely,

i) A plaint, and
ii) A written statement.

Briefly stated pleadings is a part of procedural law which enables all concerned
parties to formulate their respective issues both on points of law and facts for
assistance of the court, so that it may eventually adjudicate upon the issue
involved in this case.

3[ Proof
It is a process which enables the parties to furnish the material by adducing
evidence so that the court may arrive at the right conclusion on the basis of issues
for determination before it.

Order 6 Rule 1 C.P.C.

 990

41 Judgment

A judgment contains the statements given by the judge about the grounds of a
decree or order. It embodies the decision.

Judgment of courts other than small causes courts shall contain...

a) a concise statement of the case;
b) the points for determination;
c) the decision thereon;
d) the reasons for decision.

The judgments of the courts of small causes need not contain more than B and C
above. A mere order deciding the matter in dispute, unsupported by reasons is no
judgment at all1.

5]_ Execution

It involves the physical force needed to uphold the judgment when voluntary
submission is not forthcoming.

Execution is a process by which the court enforces its decree.

In other words, it is an act of carrying out the judgment into effect. Execution of
a decree or order compels the defendant to door pay what has been ordered by the
court. It may involve sale or attachment of any property or arrest or detention of
the defendant or appointment of a receiver for the property. A decree may be
executed either by the court which passed it, or by the court to which it is sent for
execution2.

1 Swarnalate V. Harendra Kkumar, AIR 1969, SC 1167

2 Sec. 38 CPC
 991

EVIDENCE
In context of the Indian evidence act, 1872, the word “evidence " means and includes all
statements which the court permits or requires to be made before it by witnesses in
relation to matters of fact under enquiry and all documents produced for the inspection of
the court.

DEFINITION OF EVIDENCE
One fact is evidence of another when it tends in any degree to render the existence of that
other probable. The quality by virtue of which it has such an effect is called its probative
force. Evidence therefore is any fact which has a probative force. When this is great
enough to form a rational basis of inference, we call it proof. A fact which is evidence is
called evidential fact. A fact of which it is evidence is called principal fact.

According to SALMOND, evidence may be - defined as any fact which possesses

probative force. One fact is evidence of another when the existence of the former creates
a reasonable belief in the existence of the other. The quality by virtue of which it has an
effect is called probative force1.

According to PHIPSON, “evidence, as the term is used in judicial proceedings, means

the facts, testimony and documents which may be legally received in order to prove or
disprove the fact to prove or disprove the fact under enquiry”2. This definition appears

to be with that of TAYLOR’s definition of evidence which seems to be too wide as it also
includes presumptions and judicial notice,which can not strictly be regarded as evidence.

According to TAYLOR, evidence includes, “all the legal means exclusive of mere
agreement, which tend to prove or disprove any fact, the truth of which is submitted to
judicial investigation

1 SALMOND : Jurisprudence (12th Ed.) P.404

2 PHIPSON: Treatise on Evidence, P. 1
 992

According to section-3 of the Indian evidence act, 1872, says, “evidence means and
includes
1) All instrument which the court permits or requires to be made before it by
witness, in relation to matters offact under inquiry and
2) All documents producedfor the inspection of the court”

According to BENTHAM, “the fact which when present in mind tells about the existence
or non-existence ofanother fact, is called evidence. ”.

ORAL, DOCUMENTARY AND REAL EVIDENCE

The statements made by a witness before a court of law are called oral evidence. The
documents placed before the court for inspection are called documentary evidence.
Besides the documentary evidence, the material objects which are produced before a
court in course of a judicial proceedings are called the real evidence. '

For example, in case of trial for murder, the statement made by an eye-witness before the
judge or oral evidence, the letters containing the correspondence made by accused person
regarding the plan of murder is documentary evidence while the dagger, knife or pistol
used for committing the murder in real evidence.

The terms evidence and proof are not synonymous. Proof is the effect of evidence. Proof
consists of that fact which either immediately or mediately tends to convince the mind of
the truth or falsehood of a fact. Proof is the effect of evidence and evidence is the
medium of proof. Evidence is the foundation of proof in the same way as a house is built
out of bricks and mortar. All evidence is not proof.

KINDS OF EVIDENCE
Evidence may be of many kinds. These may briefly be stated as follows:-
 993'

H Judicial and Extra-Judicial Evidence

Judicial evidence consists of the testimony given by witness in the court or the
documents produced into and read by the court. These are the facts brought to the
personal knowledge of the court. In other word, judicial evidence consists of all
those evidential facts which are actually brought to the personal knowledge and
observation of the court.

Extra-judicial evidence consists of facts not directly proved in court, but which
serves as a ink between judicial evidence and the fact requiring proof. Thus, the
confession of guilt by an accused in the court is judicial evidence, while his
confession to his friend or relation and known to court through his friend or
relation who heard the accused’s words constituting the confession is extra­
judicial evidence.

Similarly, a document if produced constitutes judicial evidence but is extra­

evidence if known to the court through a copy or recollection of a witness who
has read the document. Testimony is extra-judicial when it is judicially known
only through the relation of a witness who heard it.

Thus, the examples of judicial evidence are statements of witnesses in the court,
all relevant documents produced in the court and other material things examined
by the court in the course of judicial proceeding. A confession is a judicial
evidence if made to a court itself but if it is made somewhere else and proved
before a court by some other evidence, then it shall be extra-judicial evidence.

Similarly, an original document fs a judicial evidence if produced in a court but it

is extra-judicial if known to the court through a copy.

It must be stated that in every judicial proceeding some proof in the form of
judicial evidence is essentially needed but it is not so in case of extra-judicial
 994

evidence, that is, it may not exist. Extra-judicial evidence serves merely as an
intermediate link in a chain of proof1.

2[ PERSONAL AND REAL EVIDENCE

Personal evidence is also called “testimony ” and includes all kinds of statements
regarded as possessed of probative force. Personal evidence is the most important
form of evidence. It may be oral or written and judicial or extra-judicial.

In other words, personal evidence is otherwise termed as “testimony ”, It includes

all statements, verbal, written, judicial or extra-judicial so far as they are
possessed of probative force.

Real evidence, on the other hand, is that which is directly addressed to the senses
of the court. It is the evidence supplied by material object, other than documents,
produced for the inspection of the court.

In other words, real evidence includes the residue of evidential fact. Anything
which is believed for any other reason than that someone has said so, is believed
on real evidence. Real evidence may be judicial or extra-judicial.

JERMY BENTHAM, has used the term "real evidence ”, in a wider sense so as to
include, “all evidence of which any object belonging to the class of things as the
source, persons being included in respect ofsuch properties as belong to them in
common with thing". Considered from this stand point, real evidence may either
be immediate where the material object itself is produced before the court, or it
may be reported, where its existence is reported by some witness.

Thus, the production of a weapon by which murder was committed is real

evidence, while the statement of an eye-witness is personal evidence

1 SALMOND : Jurisprudence (12,h Ed.) P.465

 995

3) Primary and Secondary Evidence

Primary evidence is the testimony of a witness who perceived a fact with his own
senses or the original document or thing when produced in court. It is also called
original evidence. Primary evidence is considered as the best evidence and so
long as primary evidence is available, no other evidence shall be admissible. The
original copy of a document to prove its contents is an illustration of primary
evidence. Under the Indian evidence act, primary evidence means in the case of
oral in the case of documentary evidence the production of the document itself.

Secondary evidence is inferior to primary evidence. The court shall not allow
secondary evidence when primary evidence is available. The court may admit
secondary evidence in exceptional case when it is proved that primary evidence is
not available for some sound valid reason. A copy of a document or oral
testimony of its contents are examples of secondary evidence.

' Again a statement by A that he saw B committing a murder of C is primary and

direct evidence but A’s statement that D told him that B murdered C, is a
secondary evidence. The copies of an original document or a photocopy or
extracts of documents etc. are secondary evidence.

41 Direct and Circumstantial Evidence

Direct evidence is testimony relating to the principle act. All other evidence is
circumstantial. It is evidence of a fact actually in issue or evidence of a fact
perceived by a witness with his own sense. “Direct evidence ” is the testimony
relating immediately to the principle fact "by one who has seen it, heard it or
known it”.

In other words, “direct evidence ” is the testimony of a witness relating to the

precise point in or the principle fact. It is evidence of a fact actually in issue or
evidence of fact perceived by a witness with his own senses.
 996

Thus, the testimony of A that he saw B commit the murder constitutes direct
evidence.

Circumstantial evidence, on the other facts than the fact in issue but which are
closely connected with that fact in such a way that it leads to some definite and
irrestible conclusion. Professor KEETON explains circumstantial evidence as the
evidence of facts other than those of which proof is required, but from the
existence of which proof of the desired facts can necessarily be inferred. Thus, if
A swears that he saw B leaving the place where C was stabbed and B then had a
blood stained dagger in his hand, the evidence of A is circumstantial evidence.

Direct evidence is also known as positive evidence and circumstantial evidence or

presumptive evidence.

51 Original and Hearsa y Evidence

Original evidence is evidence which has an independent probative force of its

own. It is that evidence which a witness reports himself to have seen or heard
through the medium of his own senses.

HEARSAY evidence, on the other hand, is not actually perceived by a witness

with his own senses, but proved by him to have been stated by another person.

In simple words HEARSAY evidence is merely reported by a person not what he

actually heard or saw himself but what he was told by some third person.

Ordinarily, HEARSAY evidence is not accepted and the, courts reject it subject to
certain exceptional cases.

HEARSAY evidence is also called derivative evidence or transmitted evidence.

HEARSAY evidence is not based on personal knowledge of the witness but on
what he has heard from others.
 997

The law of evidence is concerned mainly with two major issues, namely,
i) Production of evidence;
ii) Its probative force of evidence

THE LAW OF EVIDENCE

H Production of Evidence

Many rules have been laid down for the production of evidence and the
examination of witnesses. This part of evidence deals with the process of
adducing evidence and not with the effect of it. It is concerned with the manner
in which the witnesses are to be examined and cross-examined and not the weight
to be attributed to their testimony. Various kinds of evidence are adduced before
the court but the judge is not bound to accept all of them with a view of avoiding
unnecessary expense, delay and vexation. That apart, there are certain categories
of witnesses who cannot be forced to disclose facts which are otherwise material
to the point in issue in the interest of pubic policy. These excluded categories
are1.

Al JUDGES AND MAGISTRATES

No judge or magistrate shall, except upon the special order of some court
to which he is subordinate, be compelled to answer any questions as to his
own conduct in court or anything which came to his knowledge in court as
a magistrate in his official capacity2. 3

Bl COMMUNICA TION DURING MARRIAGE

No married person shall be compelled to disclose any communication

made to him during marriage by an person to whom he or she is or has
been married except in suits between married person in which married
person is prosecuted for having committed any crime against the otherJ.

1 Sections — 121 to 126 of the Indian Evidence Act, 1872

2 Sections - 121 of the Indian Evidence Act, 1872
3 Sections - 122 of the Indian Evidence Act, 1872
 998

Q Affairs of the State

No person shall be permitted to give any evidence derived from
unpublished official records relating to any affairs of state except with the
permission of the officer at the head of the department concerned, who
shall give or withhold such permission as he thinks fit1.

Ql Official Communication
No public officer shall be compelled to disclose communications made to
him in official confidence when he considers that the pubic interest would
be adversely affected by such disclosure2.

El Information as to Crime
No magistrate of public officer shall be compelled to say where from he
got any information as to the commission of any offence and no revenue
officer shall be compelled to say where form he got any information as to
the commission of any offence against the public revenue3.

El Professional Communications
No advocate or pleader shall at any time be permitted, unless with his
client’s express consent, to disclose any communication made to him in
the course and the purpose of his employment in such capacity or disclose
the contents or condition of any document with which he has become
acquainted in the course of his professional employment.

Besides these exclusions, the provisio to section -132 of the Indian

evidence act also provides'that a witness shall not be compelled to answer
any question as to any matter relevant to the matter in issue which shall
subject him to any arrest or prosecution, or be proved against him, in any

1 Section-123 of the Indian Evidence Act, 1872

2 Section -124 of the Indian Evidence Act, 1872
3 Section —125 of the Indian Evidence Act, 1872
 999

criminal proceeding, except a prosecution for giving false evidence by

such answer.

BENTHAM, however, thinks that such a provisio is not justified in the

interest of fair investigation and trial. He firmly believes that conviction of
offenders is not possible without the use of force and such a rule prohibits
use of force and, therefore, extends unwanted protection to the accused

persons.

ijl Proba tive Force of Evidence

When all the evidence is produced, its probative force is to be evaluated. The law
does not permit personal discretion of the court to estimate the probative force of
evidence. For this purpose inflexible rules have been incorporated in the Indian
evidence act. Some of the rules which determine what evidence ca be received
and what weight should be given to such evidence when adduced, are stated
hereunder:-

Al Conclusive Proof'

It consists of facts which have such probative force that they cannot be
contradicted. When one fact is declared by law to be conclusive proof of
another, the court shall, on proof of one fact, regard the other as proved,
and no evidence to disprove it shall be admissible. Thus conclusive
presumptions are inferences which "must” be drawn and cannot be
allowed to be overruled by any evidence howsoever strong it may be.

For example, section-82 of Indian penal code provides that a child below
the age of seven is “doli incapex", that is, incapable of having guilty
intention. It is a conclusive presumption of law which camiot be endowed
with any discretion. Likewise, section 112 of the evidence act lays down
that if a person is born during a valid wedlock between his mother and any

1 Section-4 of the Indian Evidence Act, 1872

 1000

man, within 280 days after its dissolution, the mother remaining
unmarried, it shall be conclusive proof of the legitimacy of the child.

b[ Presumptive Proof

It is called rebuttable proof or conditional proof. The rule of presumptive

proof is contained in section -4 of the evidence act, which says that the
court may presume a fact as proved unless and until it is disproved. It is
rebuttable presumption, which may be disproved by a contrary evidence

For instance, a man not heard of for seven years by those who would
naturally have heard of him if he had been alive, is presumed to be dead.
This presumption is, however, rebuttable by contrary proof.

Likewise, the court may presume that a man who is in possession of stolen
goods soon after the theft is either the thief or has received the goods
knowing it to be stolen, unless he can reasonably account for his
possession.

In other words, unlike conclusive proof, the court will permit contrary
evidence to disprove a fact.

cl Exclusive Evidence

The rules as to exclusive evidence lay down the manner in which certain
evidence in respect of certain facts should be given, any other kind of
evidence if tendered being inadmissible. Thus, the execution of a will can
be proved only by the testimony of atleast one attesting witness1. But if
the attesting witness be dead, or their testimony is not available for some
valid reason, then the stringency of this rule is not insisted upon and the
testimony of the will is accepted or rejected on its own merits. Likewise, a

' The law requires that a will must be attested by two witnesses
 1001

written contract can be proved by the contract-deed which is the exclusive

evidence of that contract.

Dl Insufficient Evidence

Where the law prescribes a certain amount of evidence but the evidence
adduced is not upto the requisite standard, the evidence is considered
insufficient and the courts are not called upon to act on such evidence.

For instance, a probative requires attestation by two witnesses. Therefore,

if a probative is arrested by only one witness, it shall be insufficient
evidence to be taken cognizance of by the court.

El Facts which are not Evidence

There are certain facts which do not possess any probative force at all.
The courts do not take nay cognizance of such facts.

For example, in criminal proceedings previous, bad character of the

accused is irrelevant, unless evidence has been give that he has a good
character, in which case it becomes irrelevant1.

Similarly, hearsay evidence is no evidence and it is ordinarily excluded by

the courts.

SOME SUGGESTIONS
Undoubtly, the rules of evidence prescribe the best course to get at truth and hence they
are more or less throughout are more Or less the same throughout the civilized world.
This is true with the Indian evidence act, as well. It adopts the requirements of a
’’prudent man ” as an appropriate standard by which to measure proof and at the same

Section-54 Evidence Act

 1002

time, allows full effect to be given to circumstances or probabilities or improbabilities.

It, however, does not require absolute certainty1.

There is one single rule of evidence applicable to both civil and criminal trials and that is
contained in the definition of the terms "proved" and “disproved”. The test whether a
fact in issue is proved or disproved depends on whether a prudent man after considering
the matters before him, would deem it proved to not. Obviously, in this process it is
difficult to bind the court with any particular rule. The only things that may bind the court
is the dictates of its own conscience. It is mainly for reason that when the court is called
upon the convict a person having committed any offence, it has to satisfy itself that the
possibility of innocence is completely ruled out2. It is indeed a very arduous task for the
courts and more often than not, this results into acquittal of accused person.

Yet another rule which generally earns benefit of doubt to the accused person is the rule
that a criminal, charge must be established beyond reasonable doubt3. It is because of this

rule that the defence finds it rather easy to create doubt, which the courts treat, sufficient
to acquit the accused. Some of the circumstances which were considered sufficient to
raise reasonable doubt in the prosecution story and earning acquittal to an accused
persons are feeling that it would be hazardous to convince the accused4 group rivalries
and previous enmity5, purpose of preparing false memos not established6, medical
evidence being balanced on both sides7, absence of names from the FIR8, interval
between death and recovery of body9 etc. Thus, this principle has been applied in such a

divergent manner that it may even be possible for a judge to give benefit of doubt in
almost every case.

1 Ahibaran V. State AIR 1953 All-493

lJ Vithal Das. V. Rupchand & Others, AIR 1967 Orissa 188
inder Singh V. Delhi Administration, AIR 1978, SC 1091
4 AIR 1970 SC 1191
5 Baldeo Singh and others V. State of Bihar, AIR 1972, SC 464
6 Bhagwandas Keshwani V. State of Rajathan, AIR 1974 SC 898
7 State of Maharashtra V. Annappa Bandu Kavatage, AIR 1979 SC. 1410
8 Juwar Singh V State of Madhya Pradesh, AIR 1981 SC 373
9 State of Maharashtra, V. Annappa Bandhu Kavatage, AIR 1979, SC 1410
 1003

Commenting on this malady, justice GULAB GUPTA of the high court of Madhya
Pradesh “as he then was ” observed that benefit of doubt is not a formula to be used for
shirking the task of magistrate. He further stated, “so long as there is volume of
evidence, it is the duty of the magistrate to apply his mind out whether the prosecution
has affirmately and satisfactorily proved its case, making use of its defence evidence for
the purpose of testing whether the prosecution case can be true”1. Giving a note of
warning the learned judge further observed, ‘fanatical devotion to the rules of benefit of
doubt and general unmarried acquittals based on spasmodic sentiments may lead to the
danger of resorting to retribution by the community. That would mean self-redress or
lynch-law which would wreck the peace of the society and bring the criminal law itself
into contempt”.

The need of the time, therefore, is to restructure the law, particularly the law of procedure
and evidence so that it serves the cause of social justice, it hardly needs to be mentioned
that law cannot command respect if it is divorced from justice and realities of life. The
law of procedure and evidence being several decades old, it is unable to lead to just
results in many situations. In such cases the judicial discretion may prove to be an
effective weapon in the hands of judges for rendering justice possible by weighing the
rules of law in their proper perspective. The magistracy should ensure that the judicial
process is not only cheap and speedy but it is also pragmatic, modern and rational.

1 AN article entitled 'Socialjustice perspective ofcriminaljustice ’ by Hon’ble justice Gulab Gupta of the
high court of Madhya Pradesh published in central Indian law quarterly Vol 1 (1987) PP 15-17
 1004

BIBLIOGRAPHY
LEGAL RIGHTS AND DUTIES
Allen Legal Duties
Austin Jurisprudence
Buckland Some Reflections on Jurisprudence
Dias & Hughes Jurisprudence
Fuller, L.L. The Morality of Law, Yale Uni. Press, 1969
Holland Elements of Jurisprudence
Goodhart, A.L. English Law and the Moral Law, 1955
Gray Nature and Source of Law
Hohfeld Fundamental Legal Conceptions
Hall, J Foundations of Jurisprudence
Hart, H.L.A, The Concept of Law, Clarendon Press, 1975
Hearn, W.E. The Theory of Legal Duties and Rights, London, 1883
Jenks Edward The New Jurisprudence
Kelsen General Theory of Law and State
Kocourek, A Jural Relations
Laski Duguits Conception of the State in Modem Theories of Law
Mises, Von Positivism
Olivecrona Law as a Fact
Paton Jurisprudence
Roscoe Pound Legal Rights (1915)
Saimond Jurisprudence
Stone The Province and Function of Law
Subbarao, G.C. Jurisprudence (3rd Ed.)
Smith, J.C. Legal Obligation, University of London 1976
JURISTIC PERSONALITY
Allen, C.K. Legal Duties
Bertie and Means The Modem Corporation and Private Property
Dias & Hughes Jurisprudence
Drucker Concept of the Corporation
Duff Personality in Roman Private Law
Farnsworth, A The Residence and Domicile of Corporations
Friedmann Law and Social Change
Goodhart Essays in Jurisprudence
Gower : Modem Company Law in India, the Protection of Cruelty to Animal Act,
1960
 1005

Gray, J.C. Nature and Sources of the Law

Holland, T.E. The Elements of Jurisprudence
Halils, F Corporate Personality, Oxford, Uni-Press, 1930
Hendersen, G.C. The Position of Foreign Corporations in American Constitutional Law
Hibbert Jurisprudence
Hohfeld Scheme of Jural Postulates (Intra)
Lloyd, D. The Law Relating to Unincorporated Associations, Sweet and Maxwell,
1938
Maitland Collected Papers
Markby, W Elements of Law, Oxford, 1905
Nekam, A The Personality Conception of the Legal Entity
Paton G.W. A Textbook of Jurisprudence (2nd Ed.)
Pollock Essays in the Law
Roscoe Pound Legal Rights
Salmond Jurisprudence (12th Ed.)
Subbarao, G.C. Jurisprudence & Legal Theory (9th Ed.)
POSSESSION/ OWNERSHIP
Bhalla, R.S. The Institution of Property Legally, Historically and Philosophically
Regarded, Eastern Book Co (1984)
Cheshire, G.C. The Modem Law of Real Property, Butterworths, 1976
Crossley Vaines, J. Personal Property, Butterworths, 1967
Denman, D.R. Origins of Ownership, Allen & Unwin Ltd., 1958
Friedmann Law and Social Change
Godeve, L.A. Modern Law of Personal Property, Sweet and Maxwell, 1949
Jha G.N. Hindu Law in its Sources
Holland The Elements of Jurisprudence, Oxford, 1924
Hibbert Jurisprudence
Holmes, O.W. The Common Law, Boston, 1881. Indian Trusts Act, 1882
Keeton, G.W. The Elementary Principles of Jurisprudence, 1994
Kocourek, A Jural Relatons, 1928
Lightwood, J.M. *
A Treatise on Possession of Land, Stevens and Sons, 1894
Lloyd, D. The Idea of Law, Penguin Book, 1964
Maine Henry Ancient Law
Markby, W. Elements of Law, Oxford, 1905
Manu Manu Smriti
Noyes, C.R. The Institution of Property, 1936
Paton, G.W. A Textbook of Jurisprudence, Clarendon Press, Oxford, 1972
 1006

Pollock,F A Firstbook of Jurisprudence, Macmillan and Company, 1929

Pollock, F & Wright R.S An Essay on Possession of the Common Law, Oxford, 1888
Pollock and Maitland History of English Law
P.N.Sen Hindu Jurisprudence
Salmond, G.W. Jurisprudence, 1966
Subbarao, G.C. Jurisprudence & Legal Theory (9th Ed )
Stone, J Social Dimensions of Law and Justice, Stevens and Sons 1966, Transfer of
Property Act, 1882
Vinogradoff, P Outlines of Hindu Jurisprudence, Oxford, Uni-Press, 1922
CONCEPT OF LIABILITY
Allen, C.K. Legal Duties/ Legal Rights and Duties
Austin Jurisprudence
Barnes and Teeters New Horizons in Criminology
Clark Analysis of Criminal Liability
East and Hubert The Psychological Treatment of Crime
Fox, L.W. The Modern English Prison
Gault,R .H Criminology
Glues Crime and Justice
Hall, J. Theft, Law and Society
Hooton, E A Crime and the Man
Keeton, R.E. Legal Causes in the Law of Torts, Ohiostate, Uni. Pres-1963
Lawson, F.H Negligence in the Civil Law, (1950),
Indian Penal Code, 1860
Paton, G.W. A Textbook of Jurisprudence
Ross, A On Guilt, Responsibility and Punishment, Stevens and Sons Ltd. 1975
Salmond, J.W. The Law of Torts, Sweet and Maxwell, 1977
Street, H The Foundation of Legal Liability, New York
Dr.Sethna Jurisprudence
Street, H. The Law of Torts, Butter worth, 1976, The Specific Relief Act
William G.L. Criminal Law, 1961
Winfield, R.H. and A Textbook of tjie Law of Torts, Sweet and Maxwell (1975)
Jolowicz, J.A.
LAW OF PROPERTY
Atchuthen Pillai P.S. Jurisprudence & Legal Theory (I'985)
Austin Jurisprudence
Bhalla, R.S. The Institution of Property - Legally, Historically and Philosophically
Regarded
Bentham Principles of Legislation