CHAPTER – 1

INTRODUCTION

1.1 Introduction

Evidence for a proposition is what supports this proposition. It is usually

understood as an indication that the supported proposition is true. What role evidence plays

and how it is conceived varies from field to field.

An estimated 1,197,704 violent crimes occurred nationwide in 2015, ac-

cording to the Federal Bureau of Investigation's Uniform Crime Reporting Program. Vio-

lent crimes are determined according to a Hierarchy Rule: murder, non-negligent man-

slaughter, rape, robbery, and aggravated assault. The collection, preservation, and forensic

analysis of the evidence with most crimes are often critical in determining a person's guilt

or a person's innocence. The forensic exam is beneficial to law enforcement and the medical

setting to provide a comprehensive medical forensic examination with the collection of

evidence knowing the patient's body is the crime scene. Evidence must be identified, col-

lected, packaged, secured, and maintained correctly, then released to Law Enforcement

following a strict chain of custody rules so that it can be analyzed appropriately and used

later in legal proceedings. When collecting evidence, the examiner must wear gloves at all

times and change them often utilizing the clean technique. Following proper collec-

tion, handling, and storage of evidence will reduce the possibility of cross-contamination

or degradation of DNA.

In epistemology, evidence is what justifies beliefs or what makes it ra-

tional to hold a certain doxastic attitude. For example, a perceptual experience of a tree may

1
act as evidence that justifies the belief that there is a tree. In this role, evidence is usually

understood as a private mental state. Important topics in this field include the questions of

what the nature of these mental states is, for example, whether they have to be propositional,

and whether misleading mental states can still qualify as evidence. In phenomenology, ev-

idence is understood in a similar sense.

Here, however, it is limited to intuitive knowledge that provides immediate

access to truth and is therefore indubitable. In this role, it is supposed to provide ultimate

justifications for basic philosophical principles and thus turn philosophy into a rigorous

science. However, it is highly controversial whether evidence can meet these requirements.

Other fields, including the sciences and the law, tend to emphasize more the public nature

of evidence (for example, scientists tend to focus on how the data used during statistical

inference are generated). In philosophy of science, evidence is understood as that

which confirms or disconfirms scientific hypotheses. Measurements of Mercury's "anoma-

lous" orbit, for example, are seen as evidence that confirms Einstein's theory of general

relativity. In order to play the role of neutral arbiter between competing theories, it is im-

portant that scientific evidence is public and uncontroversial, like observable physical ob-

jects or events, so that the proponents of the different theories can agree on what the evi-

dence is.

This is ensured by following the scientific method and tends to lead to an

emerging scientific consensus through the gradual accumulation of evidence. Two issues

for the scientific conception of evidence are the problem of underdetermination, i.e. that

the available evidence may support competing theories equally well, and theory-ladenness,

2
i.e. that what some scientists consider the evidence to be may already involve various the-

oretical assumptions not shared by other scientists. It is often held that there are two kinds

of evidence: intellectual evidence or what is self-evident and empirical evidence or evi-

dence accessible through the senses.

The Indian Evidence Act 1872 is the primary legislation on the subject of

legislations in India. This statute has eleven chapters and 167 sections. It is divided in three

parts namelyPart I- Relevancy of Facts, Part II- On Proof and Part III- Production and Ef-

fect of Evidence. Even though it has been almost 149 years since its enactment, this Act

has seen little to no substantial amendments to keep up with the changing social and tech-

nological advancements. The Evidence (Amendment) Act of 2002 amended Section 146

and Section 155 of the Indian Evidence Act, 1872. In 2010, the Information Technology

Act laid down various aspects of electronic evidence and its regulation.

In India, the law governing evidence is very important for both, civil as well

as criminal matters. The word ‘evidence’ finds its origin from the Latin word- Evideari,

which literally means to show clearly or to prove. The Indian Evidence Act contains the

definitions, procedures and various aspects of evidence, and is applicable in court proceed-

ings. The kind of evidences that get accepted and the provisions which govern their ap-

plicability are integral in matters of justice.

Various legal experts have urged towards the need for the amendment of the

age-old legislation. The Indian Evidence Act has not been significantly amended since. The

69th Law Commission report made the most comprehensive analysis on the subjects of

amendments and recommendations with respect to the Act. This report was made in 1997.

3
It has been the opinion of the Commission that to review the law of evidence is a very huge

and challenging task. In the 185th report of the Law Commission, the 69th report was ana-

lyzed and reviewed. Furthermore, the stance of judiciary on various subjects of the Indian

Evidence Act has been incorporated in the report, with little to no chances to the position

of the Supreme Court on a matter

In order for something to act as evidence for a hypothesis, it has to stand in

the right relation to it. In philosophy, this is referred to as the "evidential relation" and there

are competing theories about what this relation has to be like. Probabilistic approaches hold

that something counts as evidence if it increases the probability of the supported hypothesis.

According to hypothetico-deductivism, evidence consists in observational consequences of

the hypothesis. The positive-instance approach states that an observation sentence is evi-

dence for a universal hypothesis if the sentence describes a positive instance of this hypoth-

esis. The evidential relation can occur in various degrees of strength. These degrees range

from direct proof of the truth of a hypothesis to weak evidence that is merely consistent

with the hypothesis but does not rule out other, competing hypotheses, as in circumstantial

evidence.

In law, rules of evidence govern the types of evidence that are admissible in

a legal proceeding. Types of legal evidence include testimony, documentary evidence,

and physical evidence. The parts of a legal case that are not in controversy are known, in

general, as the "facts of the case." Beyond any facts that are undisputed, a judge or jury is

usually tasked with being a trier of fact for the other issues of a case. Evidence and rules

are used to decide questions of fact that are disputed, some of which may be determined by

4
the legal burden of proof relevant to the case. Evidence in certain cases (e.g. capital crimes)

must be more compelling than in other situations (e.g. minor civil disputes), which drasti-

cally affects the quality and quantity of evidence necessary to decide a case.

Understood in its broadest sense, evidence for a proposition is what supports

this proposition. Traditionally, the term is sometimes understood in a narrower sense: as

the intuitive knowledge of facts that are considered indubitable. In this sense, only the sin-

gular form is used. This meaning is found especially in phenomenology, in which evidence

is elevated to one of the basic principles of philosophy, giving philosophy the ultimate

justifications that are supposed to turn it into a rigorous science. In a more modern usage,

the plural form is also used. In academic discourse, evidence plays a central role in episte-

mology and in the philosophy of science.

Reference to evidence is made in many different fields, like in science, in

the legal system, in history, in journalism and in everyday discourse. A variety of different

attempts have been made to conceptualize the nature of evidence. These attempts often

proceed by starting with intuitions from one field or in relation to one theoretical role played

by evidence and go on to generalize these intuitions, leading to a universal definition of

evidence.

One important intuition is that evidence is what justifies beliefs. This line of

thought is usually followed in epistemology and tends to explain evidence in terms of pri-

vate mental states, for example, as experiences, other beliefs or knowledge. This is closely

related to the idea that how rational someone is, is determined by how they respond to ev-

idence. Another intuition, which is more dominant in the philosophy of science, focuses on

5
evidence as that which confirms scientific hypotheses and arbitrates between competing

theories. On this view, it is essential that evidence is public so that different scientists can

share the same evidence.

This leaves publicly observable phenomena like physical objects and events

as the best candidates for evidence, unlike private mental states. One problem with these

approaches is that the resulting definitions of evidence, both within a field and between

fields, vary a lot and are incompatible with each other. For example, it is not clear what a

bloody knife and a perceptual experience have in common when both are treated as evi-

dence in different disciplines. This suggests that there is no unitary concept corresponding

to the different theoretical roles ascribed to evidence, i.e. that we do not always mean the

same thing when we talk of evidence.

Important theorists of evidence include Bertrand Russell, Willard Van Or-

man Quine, the logical positivists, Timothy Williamson, Earl Conee and Richard Feld-

man. Russell, Quine and the logical positivists belong to the empiricist tradition and hold

that evidence consists in sense data, stimulation of one's sensory receptors and observation

statements, respectively. According to Williamson, all and only knowledge constitute evi-

dence. Conee and Feldman hold that only one's current mental states should be considered

evidence.

Digital Forensic is a branch of forensic science related to legal evidence

found in computers and digital storage media. The goal of computer forensics is to describe

the current state of a digital artifact. The term digital artifact can include a computer system,

storage media (such as flash drive, hard disk, or CD-ROM), an electronic document (eg an

6
email message, video, or JPEG), or even a series of data packets in a network switch com-

puter. Explanation could simply "what information that we have here?" until as detail as

"what is the sequence of events that led to the current situation?". Until now most of the

way to collect data for digital forensic purposes is to openly dig the device or electronic

devices commonly used by suspects such as desktop PCs, laptops, and mobile phones. This

is accordance with legal procedures, but has a great possibility that the suspect removed

the digital evidence that is in the devicefirst. There are actually many way to resurrect de-

leted data, but there is no guarantee that the data generated can be in perfect terms of the

number and content as when before it was removed. Consequently when gathering evi-

dence, many cases the police could not gather enough evidence to change the status of a

suspect to be the defendant.

Therefore this paper presents a new method of extracting the data secretly

in order to prevent the collection of imperfect evidence if a suspect eliminate it. This

method specifically for laptop or computers with Windows operating systems. The appli-

cations created based on windows scrypt file and C language. Hope this method can gen-

erate a perfect digital evidence after a person is named as a suspect.

The guiding intuition within epistemology concerning the role of evidence

is that it is what justifies beliefs. For example, Phoebe's auditory experience of the music

justifies her belief that the speakers are on. Evidence has to be possessed by the believer in

order to play this role. So Phoebe's own experiences can justify her own beliefs but not

someone else's beliefs. Some philosophers hold that evidence possession is restricted to

conscious mental states, for example, to sense data. This view has the implausible

7
consequence that many of simple everyday-beliefs would be unjustified. The more com-

mon view is that all kinds of mental states, including stored beliefs that are currently un-

conscious, can act as evidence. It is sometimes argued that the possession of a mental state

capable of justifying another is not sufficient for the justification to happen. The idea behind

this line of thought is that justified belief has to be connected to or grounded in the mental

state acting as its evidence. So Phoebe's belief that the speakers are on is not justified by

her auditory experience if the belief is not based in this experience. This would be the case,

for example, if Phoebe has both the experience and the belief but is unaware of the fact that

the music is produced by the speakers.

It is sometimes held that only propositional mental states can play this role,

a position known as "propositionalism". A mental state is propositional if it is an attitude

directed at a propositional content. Such attitudes are usually expressed by verbs like "be-

lieve" together with a that-clause, as in "Robert believes that the corner shop sells

milk". Such a view denies that sensory impressions can act as evidence. This is often held

as an argument against this view since sensory impressions are commonly treated as evi-

dence. Propositionalism is sometimes combined with the view that only attitudes to true

propositions can count as evidence. On this view, the belief that the corner shop sells milk

only constitutes evidence for the belief that the corner shop sells dairy products if the corner

shop actually sells milk. Against this position, it has been argued that evidence can be mis-

leading but still count as evidence.

This line of thought is often combined with the idea that evidence, proposi-

tional or otherwise, determines what it is rational for us to believe. But it can be rational to

8
have a false belief. This is the case when we possess misleading evidence. For example, it

was rational for Neo in the Matrix movie to believe that he was living in the 20th century

because of all the evidence supporting his belief despite the fact that this evidence was

misleading since it was part of a simulated reality. This account of evidence and rationality

can also be extended to other doxastic attitudes, like disbelief and suspension of belief. So

rationality does not just demand that we believe something if we have decisive evidence

for it, it also demands that we disbelieve something if we have decisive evidence against it

and that we suspend belief if we lack decisive evidence either way.

The meaning of the term "evidence" in phenomenology shows many paral-

lels to its epistemological usage, but it is understood in a narrower sense. Thus, evidence

here specifically refers to intuitive knowledge, which is described as "self-given" (selbst-

gegeben). This contrasts with empty intentions, in which one refers to states of affairs

through a certain opinion, but without an intuitive presentation. This is why evidence is

often associated with the controversial thesis that it constitutes an immediate access to

truth. In this sense, the evidently given phenomenon guarantees its own truth and is there-

fore considered indubitable. Due to this special epistemological status of evidence, it is

regarded in phenomenology as the basic principle of all philosophy. In this form, it repre-

sents the lowest foundation of knowledge, which consists of indubitable insights upon

which all subsequent knowledge is built. This evidence-based method is meant to make it

possible for philosophy to overcome many of the traditionally unresolved disagreements

and thus become a rigorous science. This far-reaching claim of phenomenology, based on

absolute certainty, is one of the focal points of criticism by its opponents. Thus, it has been

argued that even knowledge based on self-evident intuition is fallible. This can be seen, for

9
example, in the fact that even among phenomenologists, there is much disagreement about

the basic structures of experience.

The investigation begins at the crime scene with the identification and re-

covery of physical evidence. After analysis and evolution of the results of recovered phys-

ical evidences and documents as well as the statements of witness’s, it proceeds to presen-

tation of the all findings to the court of law. From the first responders to the end - users of

the information, all entire personnel should have an adequate understanding of the forensic

process, like identification, recovery, collection, preservation, transportation and proper

documentation to maintain the chain of custody.

Crime scene investigation is a process aimed at recording the scene because

it is the first encounter and indentifying and collecting all the physical evidences relevant

to the solution of the case. The scene of crime or place of occurrence is the actual site or

location in which the incident took place. Generally the police personnel first reach at the

crime scene and begin the investigation of the crime scene. The police personal who first

attend the crime scene are called first responding officer (FRO).

The first responding officer (FRO) properly protects the crime scene as well

as the evidence of the crime scene. The entire investigation hinges on that first responding

officer being able to properly identify, isolate, and secure the evidence (s). The crime scene

can be secured by establishing a restricted boundary and it is done by using some types of

crime scene tape, rope, or barrier for the purpose of securing the scene of crime and pre-

vents evidence destruction. After secure the crime scene, the first responding officer (FRO)

10
should maintaining the restrictions not to enter any non - essential person to the crime

scene. During investigation of an incident may involve one or more place of occurrences.

A primary crime scene as well as several secondary or tertiary crime scenes

may be involved at another location. All the locations (it may be indoor, outdoor or car etc.)

where the incident has occurred or recovered the evidence of that crime and connected to a

particular incident all of these places are scene of crime. Basically, a crime scene is that

place (s) where the incident has occurred or evidence of that crime may be recovered. Crime

scene is not only the location where the crime took place. The place (s) where the related

evidence may be located or recovered of a particular crime it is also a crime scene of that

case.

During investigation all of these crime scene should examine properly for

unearth the actual truth of the incident. Each crime scene is unique and with experience a

successful crime scene investigator uses this logical and systematic approach, the investi-

gator will be able to make a successful conclusion to investigate even the most challenging

crime scene. Crime scene investigation is a scientific process which includes documenta-

tion (including measurements and photography) collection and packing of physical evi-

dence and finally reconstruction of crime scene. The Chain of custody of the evidence

should strictly maintain during crime scene investigation. The first responding officer, gen-

erally a police officer, plays a significant role in the entire crime scene investigation pro-

cess. The initial responsibility of the police officer is to preserve the integrity of the crime

scene and the evidence. The police officer is also responsible for the early documentation

of crime scene and all its evidences.

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 “In most of the cases, since the first responders are non - forensic personnel,

adequate training on handling of evidence at SOC is crucial to successfully carry out these

activities. ” The first responding officer has to do some basic recovery procedures before

the arrival of the crime scene investigators, if there's a risk of the evidence being destroyed,

lost or contaminated. In situations where there's no prospect for the crime scene to be pro-

cessed by crime scene investigators, the responsibilities of the first responding officer might

need to be extended beyond preservation and documentation.

In the sciences, evidence is understood as what confirms or disconfirms sci-

entific hypotheses. The term "confirmation" is sometimes used synonymously with that of

"evidential support". Measurements of Mercury's "anomalous" orbit, for example, are seen

as evidence that confirms Einstein's theory of general relativity. This is especially relevant

for choosing between competing theories. So in the case above, evidence plays the role

of neutral arbiter between Newton's and Einstein's theory of gravitation. This is only pos-

sible if scientific evidence is public and uncontroversial so that proponents of competing

scientific theories agree on what evidence is available. These requirements suggest scien-

tific evidence consists not of private mental states but of public physical objects or events.

It is often held that evidence is in some sense prior to the hypotheses it con-

firms. This was sometimes understood as temporal priority, i.e. that we come first to pos-

sess the evidence and later form the hypothesis through induction. But this temporal order

is not always reflected in scientific practice, where experimental researchers may look for

a specific piece of evidence in order to confirm or disconfirm a pre-existing hypothe-

sis. Logical positivists, on the other hand, held that this priority is semantic in nature, i.e.

12
that the meanings of the theoretical terms used in the hypothesis are determined by what

would count as evidence for them. Counterexamples for this view come from the fact that

our idea of what counts as evidence may change while the meanings of the corresponding

theoretical terms remain constant. The most plausible view is that this priority is epis-

temic in nature, i.e. that our belief in a hypothesis is justified based on the evidence while

the justification for the belief in the evidence does not depend on the hypothesis.

A central issue for the scientific conception of evidence is the problem of

underdetermination, i.e. that the evidence available supports competing theories equally

well. So, for example, evidence from our everyday life about how gravity works confirms

Newton's and Einstein's theory of gravitation equally well and is therefore unable to estab-

lish consensus among scientists. But in such cases, it is often the gradual accumulation of

evidence that eventually leads to an emerging consensus. This evidence-driven process to-

wards consensus seems to be one hallmark of the sciences not shared by other fields.

Another problem for the conception of evidence in terms of confirmation of

hypotheses is that what some scientists consider the evidence to be may already involve

various theoretical assumptions not shared by other scientists. This phenomenon is known

as theory-ladenness. Some cases of theory-ladenness are relatively uncontroversial, for ex-

ample, that the numbers output by a measurement device need additional assumptions about

how this device works and what was measured in order to count as meaningful evi-

dence. Other putative cases are more controversial, for example, the idea that different peo-

ple or cultures perceive the world through different, incommensurable conceptual

schemes, leading them to very different impressions about what is the case and what

13
evidence is available. Theory-ladenness threatens to impede the role of evidence as neutral

arbiter since these additional assumptions may favor some theories over others. It could

thereby also undermine a consensus to emerge since the different parties may be unable to

agree even on what the evidence is. When understood in the widest sense, it is not contro-

versial that some form of theory-ladenness exists. But it is questionable whether it consti-

tutes a serious threat to scientific evidence when understood in this sense.

The word “evidence” signifies in its original sense, the state of being evi-

dent, i.e., plain, apparent or notorious. But it is applied to that which tends to render evi-

dence or generate a proof. The fact sought to be proved is called the principal fact; the fact

which tends to establish it, the evidentiary fact (Best). In English Law, the word “evidence”

sometimes means the words uttered and things exhibited by witnesses before a Court of

Justice.

At other times, it means the facts proved to exist by those words or things

and regarded as the groundwork of inference as to other fittest not so proved. Again, it is

sometimes used as meaning to assert that a particular fact is relevant to the matter under

inquiry. In the Act, however, the word has been assigned a more definite meaning and is

used only in the first of these senses.

As thus used, it signifies only the instrument by means of which relevant

facts are brought before the Court (viz., witnesses and documents) and by means of which

the Court is convicted of these facts. Therefore matters other than the statements of wit-

nesses and documents produced for the inspection of the Court, e.g., a confession or state-

ment of an accused person in the course of a trial.

14
 Statements made by parties when examined otherwise than as witnesses, the

demeanour of witnesses, the result of local investigation or inspection, and material objects

other than documents such as weapons, tools, stolen property, etc., are not “evidence” ac-

cording to the definition given in the Act.

These are, however, matters which the Court may legitimately take into con-

sideration. The definition of “evidence” must be read together with the definition of

“proved”; and the combined result of these two definitions in that “evidence”, as defined

by the Act, is not the only medium of proof and that in addition to it, there are a number of

other “matters” which the Court has to take into consideration when forming its conclu-

sions. A statement recorded under Section 164, Cr. P.C. is not evidence within the meaning

of this definition. So also a confession of an accused is not evidence in the ordinary sense

of the term. Entire evidence of hostile witness does not get excluded or rendered unworthy

of consideration.

In the matter of appreciation of the powers of the appellant, the courts are

as wide as that of the trial court. It has full power to review the whole evidence. It is entitled

to go into the entire evidence and relevant circumstances to arrive at its own conclusion

about the guilt or innocence of the accused”.

Digital forensics is the science of detection, extraction and analysis of the pieces of evi-

dence from the digital media, and is one of the critical requirements in cyber space. One

important goal of digital forensics is to prepare court accepted reports. Three important

components of digital forensics are hard disk, memory and network forensics which record

15
and analyze some tracks from behaviors of cyber criminals. Digital forensics has nearly

three decades of history.

While the first attempts in digital forensics were to collect pieces of evi-

dence from the compromised system, recent researches in digital forensics mostly concen-

trate on the analysis of gathered evidence and preparation of verifiable, valid, and repro-

ducible reports for the court. In a very general categorization, digital forensics attempts can

be divided into two groups of 1) evidence collection and 2) evidence analysis. Several

methods and tools are designed to collect evidence from the system. Therefore, enormous

volume of information is extracted. The big amount of the low level information extracted

from the system is very challenging. Examining millions of pieces of low level information

to extract high-level info is a time consuming and exhausting work. Therefore, some auto-

matic methods are required to extract high-level information from raw data [2-4]. This sur-

vey aims to review and classify research works on digital evidence collection and analysis

and indicate some challenges posed to future work on the topic.

Summary – Here in the chapter – 1 we studied the basic introduction of

evidence collection.

In the next chapter – 2 we will study out the historical background of evi-

dence law

16
 CHAPTER - 2

HISTORICAL BACKGROUND OF EVIDENCE LAW

The evidence, in simpler terms, is the eye and ear of a court. The true facts,

in order to come upon a certain and precise judgment, is very necessary and plays a crucial

role in doing so. The word evidence is derived from a Latin word evident or evidere, which

means to prove or to show clearly.

Evidence, in law, means all the legal means. not restricted to arguments, in

order to prove or disprove a fact to ascertain the truth of matter which is subject to a judicial

investigation.

The law of evidence, also known as the rules of evidence, encompasses the

rules and legal principles that govern the proof of facts in a legal proceeding. These rules

determine what evidence must or must not be considered by the trier of fact in reaching its

decision. The trier of fact is a judge in bench trials, or the jury in any cases involving a

jury.[1] The law of evidence is also concerned with the quantum (amount), quality, and

type of proof needed to prevail in litigation. The rules vary depending upon whether the

venue is a criminal court, civil court, or family court, and they vary by jurisdiction.

The quantum of evidence is the amount of evidence needed; the quality of

proof is how reliable such evidence should be considered. Important rules that govern ad-

missibility concern hearsay, authentication, relevance, privilege, witnesses, opinions, ex-

pert testimony, identification and rules of physical evidence. There are various standards

of evidence, standards showing how strong the evidence must be to meet the legal burden

17
of proof in a given situation, ranging from reasonable suspicion to preponderance of the

evidence, clear and convincing evidence, or beyond a reasonable doubt.

There are several types of evidence, depending on the form or source. Evi-

dence governs the use of testimony (e.g., oral or written statements, such as an affida-

vit), exhibits (e.g., physical objects), documentary material, or demonstrative evidence,

which are admissible (i.e., allowed to be considered by the trier of fact, such as jury) in

a judicial or administrative proceeding (e.g., a court of law).

When a dispute, whether relating to a civil or criminal matter, reaches the

court there will always be a number of issues which one party will have to prove in order

to persuade the court to find in his or her favour. The law must ensure certain guidelines

are set out in order to ensure that evidence presented to the court can be regarded as trust-

worthy.

2.1 Historical Background of Evidence Law in India

The law of evidence in India traces back its root to Vedic period. It was

recognized by Dharma Shastra in order to ascertain the truth. It was also an important and

integral part of Muslim rule of law in order to ascertain the truth of facts pertaining to

judicial proceedings. Subsequently, in the modern times, it all superseded by the modern

English evidence law what we no call as Indian Evidence Act, 1872. But it was a long-

drawn process over a span of several centuries.

Ancient Period

Everything in ancient India, including kings, was subservient to Dharma

(complete rules of right conduct). Sources of law of ancient India are namely; Vedas,

18
Smriti, and Achara (customary law). The earliest lawgiver of early Hindu law is Manu. The

subcontinent was divided in a number of independent territories and every territory has a

leader whose main objective was to protect Dharma and rule according to it. Dharma also

means observance & conduct of truth.

So, truth was given an integral importance in ancient India which led to the

same in laws of that period. The whole administration was divided in different units ranging

from villages to towns and provinces. There is no evidence of a single judge & lawyer but

there was a jury system prevalent. Even the king would have to consult Brahmins on any

matter relating to justice. The authority to rely on were Dharma Sutras.

All the matters pertaining to civil & criminal matters were heard. A person

wanted to make representation in a court on any matter would submit a complaint and after

due consideration whether to admit such a complaint, the defendant was called. Each one

had to submit a written complaint and reply and after due deliberations, the burden of proof

lied upon whom the jury considered to, and he had to submit his evidence in order to sub-

stantiate his claim. There are two kinds of proofs in Hindu law; 1. Divine, 2. Human. The

former consisted of ordeals and latter consisted witnesses, documents and inferences from

the circumstances.

Some Main Feature of Hindu and Ancient Evidence Law

1. Oral evidence was to be direct and first-hand not what one has heard.

2. Circumstantial evidence was an important feature both in criminal and civil cases

but stress was laid upon careful inquiry and investigation of circumstances in order

to minimize mistakes.

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 3. Torture was permitted but not considered solely an element of evidence.

4. There were various circumstances for putting burden of proof. e.g., if defendant

admitted the commission, then there was no need of burden of proof

5. Witnesses were also divided on the basis of kinds of persons who were included in

the commission and who were not.

6. Documents were divided into: - Public & Private. Etc.

Medieval Period – Muslim Rule

By the end of the Mameluke dynasty, the first Muslim dynasty in India,

Muslim rule was well established in India. The administration of justice was also largely

administered by the Muslim rulers. The Islamic thinking and state were influenced by Ira-

nian & Byzantine philosophies but Islamic principles remained integral throughout in the

administration of justice. Men of affairs laid out a great stress on justice and equity in con-

formity within the limits of Islam. Contrary to Hindu laws, king was the supreme authority

of rule in Muslim India.

Ziauddin Barani laid out a great stress on despotism. Barani was the main

man of affairs in Delhi Sultanate who is an authority in matters pertaining to Muslim ad-

ministration. He gave an idea of justice; 'adl', based on equal treatment and supreme au-

thority of justice above all even for non-Muslim subjects.

However, non-Muslims were not subjected to Muslim-law on civil matters

but criminal law was applied equally over them also. After the advent of Mughals, the

subcontinent was again divided into several fragments but the administrative setup of Delhi

Sultanate was imitated more or less by all the rulers.

20
 Then came Abul Fazl in the picture who played an important role in Mughal

administration and its setup. The King was again the supreme authority, as indicated by the

concept of farr-i-izadi of Abul Fazl, but then came Qazi (judge). There was a body of Ule-

mas (Muslim jurists). There were several offices of; Qazi, Mufti, Mir Adl, Muhtasid etc.

were instituted for the sole purpose of delivering justice as Abul Fazl gave very much im-

portance to justice and considered King as its supreme provider.

The Judicial Setting and The Features of The Evidence of Mughal Period Are as Fol-

lows:

1. Representatives, modern day wakils, were allowed to represent and argue on behalf

of clients and they were paid by the state and could be promoted as Kazis.

2. There was bifurcation in civil and criminal proceedings. In civil cases, the plaintiff

had to file a claim and if defendant denies then plaintiff had to adduce evidence in

substantiating his claim and defendant had to adduce evidence in rebuttal of those

claims. Then the kazi had to decide the matter based on the proceedings in such a

manner. In criminal matters, the Kazi would summon any of the accused-defendant

and hear the complainant and witnesses. Then the judgment was pronounced in

open court. There was also an element of extra-judicial inquiry as rightly inherent

in the evidence of Mahmud of Ghazni that he made such an attempt upon a com-

plaint of a subject.

3. According to Hanafi law, which was prevalent in Muslim India, evidence is; (a)

Tawatur or fully corroborating (b) Ehad or testimony of one., (c) Iqrar which means

acceptance or confession.

4. Trial by ordeal was not known in Islamic law.

21
 5. Oral evidence was to be direct.

6. Hearsay evidence was also preferred but under strict scrutiny and conditions. e.g.-

4 witnesses required in order to prove adultery in Muslim law.

7. Evidence produced in a court was to be in support of one's cause, so relevancy can

be inferred.

8. There was not any hard-fast rule regarding putting the onus of Burden of Proof and

the Kazi had the complete authority to put it.

Win Wood Reade Puts

Whatever laws he made respecting women and slaves were made with the

view of improving their condition. Instead of repining that Mohammad (PBUH) did no

more, we have reason to be astonished that he did so much. His career is the best example

that can be given of the influence of the individual in human history.

British Period (East India Co. & Crown Rule)

The East India Co. came in India in the year 1601 after which it got trading

rights in Surat by the Emperor Jahangir then in Bengal by Emperor Shah Jahan. They had

trading rights and a little number of administrative powers which subsequently, after the

decisive Battle of Buxar in 1764, significantly grew in all realms of political administration

of its provinces.

The Muslim penal law was prevalent in Bihar, Bengal and Orissa and after

Britishers came they didn't alter it over 100 yrs and never they touched upon Personal Law

ever much. But gradually after gaining much power and sovereignty they took upon

22
themselves the task of judicial administration of India and superseding the existing Muslim

law, importing the modern English laws through a cohort of enactments.

Let’s look up briefly about the developments and culmination of what

we today know as Indian Evidence Act, 1872:

1. Many of the principles of Muslim law were discarded by Western thoughts long

ago. Warren Hasting was one of the main critics of Muslim law who termed it as

'barbarous construction

2. In 1723, Royal courts were established in the three presidency towns but Indian

subjects were not subjected to their jurisdiction.

3. The act of Regulation, 1773 made a substantial change in the judicial system of

India by establishing courts outside Bengal and establishing Supreme Court of Ju-

dicature in Calcutta.

4. After that there was a dual system of justice in presidencies and mofussil through

the acts of 1781, 1801 and 1823

5. Now it was felt necessary to assimilate the procedural laws first than the substantive

laws of this dual system.

6. First Law Commission Report, under Sir Macaulay, came in 1833 with several en-

actments. In 1835, first enactment regarding law of evidence was part as Act 10 of

1835 of Governor-General-in-council which was applied in all courts; provincial

and mofussil.

7. Act 19 of 1837, Act 5 of 1840, Act 7 of 1844, Act 15 of 1852, Act 19 of 1853, Act

10 of 1855, Act 8 of 1859, Act 25 of 1861, Act 15 of 1869 were among some of the

23
 important Acts pertaining to evidence in British India prior to the enactments of

Indian Evidence Act, 1872.

8. The English judges in India were following English law on matters that were not

mentioned in the Acts in place of Islamic Law.

9. Zamindar of Karvetinugar v. Venkatadri, Narappa v. Gupayya[10], Kazi Gulam Ali

v. H.H. Aga Khan were some of the leading cases pertaining to the development of

Evidence Law in India prior to the enactment of Indian Evidence Act, 1872.

10. The Third Law Commission of India assigned Sir Henry Maine with task to draft

the Indian Evidence Act and it was rejected after being introduced by Sir Henry

owing to the fact that it was not suitable for India.

Summary – Here in the chapter – 2 we have studied the detailed historic

background of evidence law in Indian from old to modern time of era.

In the chapter – 3 we will study the different types of evidences collection

of evidences under Indian evidence act.

24
 CHAPTER – 3

COLLECTION OF EVIDENCE UNDER INDIAN EVIDENCE ACT

The Collection Of Evidences Are Classified Into Different Categories

1. Oral Evidence

2. Documentary Evidence

3. Primary Evidence

4. Secondary Evidence

5. Real Evidence

6. Hearsay Evidence

7. Direct Evidence

8. Circumstantial Evidence

9. Judicial and Non-Judicial Evidence

10. Forensic science evidence

11. Narco-analysis

3.1 Oral evidence

Every evidence plays an important role in the trials, oral evidence has been

growing in regards to usage; as earlier it was not considered to be as precise and blunt as

documentary but its need and importance has been constantly subjected to rapid growth.

Oral evidence is also equally important as it stimulates a person and extracts what a person

has seen or what he wants to say in regards to the trial. Oral evidence is comparatively

easier to refer. The importance has been explained by the Bombay High Court in one of the

25
cases that if the oral evidence is proved beyond reasonable doubt it can also be enough for

passing conviction.

Section – 59 proof of facts by oral evidence

All the facts and circumstances may be proved by oral evidence by express-

ing or speaking except the contents of documents and electronic records. The contents of

documents and electronic records cannot be proved by oral evidence. It is held that if any

person has to be called for proving their documents then that document becomes oral and

documentary evidence loses its significance.

It was held in Bhima Tima Dhotre v. The pioneer chemical co. that “Docu-

mentary evidence becomes meaningless if the writer has to be called in every case to give

oral evidence of its contents. If that were the position, it would mean that, in the ultimate

analysis, all evidence must be oral and that oral evidence would virtually be the only kind

of evidence recognised by law. This provision would clearly indicate that to prove the con-

tents of a document by means of oral evidence would be a violation of that section.”

Section – 60 oral evidence must be directed

This is the cardinal principle of any evidence to be admissible in the court.

If any oral evidence needs to be admissible, all the conditions under Section 60 of the Indian

Evidence Act must be fulfilled. If anyone of the following conditions is not fulfilled, then

the evidence will fail to be pictured as an Oral Evidence. Oral evidence and section 60 is a

proportional equation. For acting out one, the other needs to be fulfilled.

The base principle on which section 60 is placed is that the evidence which

is taken into regards must be direct. The word direct does not include any category of

26
hearsay as its main element is vested in the word “must”. Every statement under oral evi-

dence must be direct. Now let’s focus on some conditions which need to be fulfilled to

make oral evidence admissible;

Direct oral evidence

Oral Evidence must be direct in all cases. Indirect ways or hearsay is not

considered a part of direct oral evidence. The word “Direct” in all matters must mean that

it is administered by any person on their own i.e through their personal knowledge and is

not passed by any other person (hearsay) which on the other hand will be inadmissible.

This involves certain cases in which the word “direct” is involved:-

1. It refers to a fact which could be seen, it must be the evidence of a witness who

says he saw it – It refers to evidence which has been given by the person who

has actually seen or observed the matter by their own eyes, This will be actuated

as direct evidence.For example: if A saw that B is hitting C. A will be an eye-

witness to the crime scene and his testimony will be that of direct evidence.

2. It refers to a fact which could be heard, it must be the evidence of a witness who

says he heard it – It refers to evidence which has been given by the person who

was present and has actually heard the matter by themselves, this will come un-

der direct evidence.For example: if A overheard B’s conversation that stated;

that he is going to kill C tomorrow under the bridge, A’s testimony will be that

of direct evidence.

3. It refers to a fact which could be perceived by any other senses or any other

manner, it must be the evidence of person who says he perceived it by that sense

or manner – Meaning such evidence that has been given by the person who has

27
 perceived it in any other manner or by any other senses but it has been perceived

by that person itself. For example: through sense of smell or taste.

4. If it refers to an opinion or to grounds on which that opinion is held, it must be

the evidence of the person who holds that opinion on those grounds – It means

when a person holds any opinion on any matter or incident, only his testimony

on the ground of which his opinion is formed will be admissible in the court.For

example A thinks that B is not a good guy, so his testimony of that opinion will

be termed under direct evidence.

3.2 Documentary evidence

Documentary evidence is any evidence that is, or can be, introduced at

a trial in the form of documents, as distinguished from oral testimony. Documentary evi-

dence is most widely understood to refer to writings on paper (such as an invoice, a con-

tract or a will), but the term can also apply to any media by which information can be pre-

served, such as photographs; a medium that needs a mechanical device to be viewed, such

as a tape recording or film; and a printed form of digital evidence, such as emails or spread-

sheets.

Normally, before documentary evidence is admissible as evidence, it must

be proved by other evidence from a witness that the document is genuine, called "laying a

foundation".

Section 3 of the Indian Evidence Act defines documentary evidence – All

documents presented before the court for inspection, to demonstrate or show a reality are

called documentary evidence. This definition also includes electronic records produced

28
before the court. Chapter 5 of the Indian Evidence Act deals with documentary evidence.

Section 61 to 90A falls under this chapter. Sections 61 to 73A deal with the general rules

for proving documentary evidence in various cases, specifically Sections 61-66 of the Act,

which gives answers to the questions that how the contents of a document are to be proved.

The content of documentary evidence can be separated into three sections that are:

1. How can the subject matter of a document be demonstrated?

2. How the record is to be proved to be authentic?

3. How far and in what instance oral evidence is excluded by documentary evidence?

Sections 74 to 78 deal with public documents and Section 79 to 90-A deal

with presumptions as to documents.

There is an ancient Roman proverb that is “Vox Audita Perit, Littera Scripta

Manet” which means that Spoken Word will Vanish, but the Written Word Remains. Hence

the law of evidence recognises the superiority and credibility of documentary evidence as

against oral evidence. There are two kinds of documentary evidence:

Public documents (section 74)

A public document is a reproduction of an entry contained in some kind of

public register, book or record relating to relevant facts or a certified copy issued by an

authority. Documents such as a birth certificate, marriage certificate, a bill of a public wa-

ter utility, an FIR filed before the police station etc are some examples of public documents.

Private document (section 75)

Documents like letters, agreements, emails, etc. which are exchanged be-

tween contesting parties to a litigation are private documents.

29
Courts generally lean in favour of accepting public documents more readily than private

documents as the presumption is that the risk of tampering with public documents is far

less. Additionally, public documents have genesis to some reliable source that can be traced

back to for verification if necessary.

3.3 Primary Evidence (Section 62)

These are the “original documents” that are produced in the court for inspection.

There are 2 special circumstances explained under this section:

1. When a document is executed in parts. In such cases, each part is the primary evi-

dence of the document.

2. Where several documents are made by one uniform process such as printing, lithog-

raphy or photography, each is the primary evidence for the contents of the rest.

3.4 Secondary Evidence (Section 63)

Section 63 of the Act provides Secondary Evidence.

Secondary evidence means and includes:

1. Certified copies.

2. Copies made from the original using a mechanical process while ensuring the ac-

curacy of the copy.

3. Copies made from and compared with the original.

4. Oral accounts of the contents of a document given by some person who has seen it.

When the contents of a document are to be verified by oral evidence then

such document becomes secondary evidence.

30
 With the advancement of technology there came up new devices and modes

by which evidence could be collected. One of these forms was electronic recordings. But

since the Act was enacted in the year 1872, these new developments were not a part of its

definition for evidence. Hence after an amendment to the same, these new forms of evi-

dence were made admissible in the court.

3.5 Real evidence

Any material evidence is real evidence. Real evidence of a fact is brought

to the knowledge of the court by inspection of a physical object and not just by information

derived from a witness or a document.

Example: contempt of court, the conduct of the witness, the parties’ behav-

iour to a case, the local inspection by the court. It can also be called the most satisfactory

witness.

3.6 Hersay evidence

According to the Indian Evidence Act, hearsay evidence is no evidence.

Hearsay evidence is not a direct evidence.

The word hearsay itself gives a clue that something which is not directly

heard. Hearsay evidence means any information which a person gathers or collects from a

person who has first-hand knowledge of that fact or information. Therefore, we can con-

clude that it is second-hand information.

31
 The general rule is that hearsay evidence is not admissible in a court of

law. Section 60 of the Evidence Act states that oral evidence must be direct. The person

must directly hear, see, or sense the fact. For example

1. I saw a woman running with a bloodied knife. The information is itself seen by

the witness. It is admissible.

2. I heard from my watchman that a woman was running with a bloodied knife. It

is hearsay evidence. Generally, it is not admissible in court.

Exceptions to the rule of hersay evidence

It is said that “hearsay evidence is no evidence.” Direct evidence is more

reliable and acceptable in court. But there are some exceptions to this rule. Here are five

instances when hearsay evidence is accepted by the court:

Res Gestae -The rule of res gestae means ‘the facts which form part of the

same transaction.’ This rule is given under section 6 of the Indian Evidence Act. The state-

ment of a person may be proved in the court through another person who appears as a

witness in court if the fact which he states in court forms a part of the same transaction.

Admission-Admission is also an exception to the rule that says hearsay ev-

idence is no evidence. Section 17 of the Indian Evidence Act defines admission as a state-

ment, either oral or in the form of a document or electronic form, which gives inference to

any fact in issue.

If a person in the court makes a statement against his own interests, then the

court accepts such a statement on the ground that a person shall never make a statement

against his own interests.

32
 Confessions- Confession means when a person admits his guilt in court.

Confession has nowhere been defined in the Indian Evidence Act. Section 24 to section

30 of the Indian Evidence Act deals with the provisions relating to confession.

If a person gives an extra-judicial confession that is outside the court, it may

be proved through the testimony of that person to whom such confession was made. Though

the witness did not hear himself or saw anything related to the offence. But the confession

by a person may be proved through his testimony in court.

Dying Declaration - Section 32 of the Indian Evidence Act talks about the

statement of a person who cannot be called as a witness in court.

There might be a situation when a person is on his death bed or suffering

from any disability due to which he could not appear before the court. In such cases, if the

person gives his statement to any other person relating to his death or cause of death, then

the person to whom such statement has been transmitted may appear before the court as a

witness and give hearsay evidence as to what he heard from the declarant.

Evidence Given in Former Proceedings- If the person to be called as a wit-

ness dies or due to some other reason is not able to appear before the court, then the state-

ments given by such person in former or previous proceedings may be used as a piece of

evidence for proving the truth in subsequent proceedings.

Even the entries in books of accounts and public registers like official books

are relevant statements that can be adduced before the court in matters of inquiry. Though

33
the person may not be alive, the statements he made previously in books or official registers

are admissible in court.

3.7 direct evidence

Evidence is either direct or indirect. Direct evidence is evidence that is very

important for the decision of the matter and fact in the issue presented.

When the facts of the case are presented before the court by witnesses, it is

direct evidence.

The person who had actually seen the crime being committed can help de-

scribe the offence, and through its statement, help serve as a direction for the facts to be

established in the case presented.

The evidence of the witness in court is direct evidence as opposed to a tes-

timony to a fact suggesting guilt. Moreover, in case a statement was given before the police,

it can be called circumstantial evidence of complicity and not direct evidence in the strict

sense, i.e., indirect evidence.

3.8 Circumstantial or indirect evidence

There is no difference between circumstantial evidence and indirect evi-

dence. They are synonymous. Circumstantial evidence paves the way to prove the facts in

the issue by providing other facts and manages to pull out an instance as to its existence. It

connects to a series of other facts than the fact in the issue. However, it is often associated

with the fact in issue relative to the cause and effect, leading to a satisfactory and meaning-

ful conclusion.

34
 In the case of Hanumant vs State of Madhya Pradesh, the Supreme Court

observed: “In dealing with circumstantial evidence there is always the danger that suspicion

may take the place of legal proof. It is well to remember that in cases where the evidence

is circumstantial, the circumstances from which the conclusion of guilt is to be drawn

should, in the first instance, be fully established. And all the facts so established should be

consistent only with the hypothesis of the accused’s guilt. In other words, there can be a

chain of evidence so far complete as not to leave any reasonable ground for a conclusion

consistent with the innocence of the accused, and it must be such as to show that within all

human probability, the act must have been done by the accused.”

Example: footprints on the crime scene floor may become a possibility for

the person to be a suspect in the case.

3.9 Judicial and non judicial evidence

Evidence received by the court of Justice in proof or disproof of facts before

the court is called judicial evidence. For example: The confession made by the accused in

the court, statements of witnesses, and documentary evidence and facts for the examination

by the court are judicial evidence.

Any confession made by the accused outside the court in the presence of

any person or the admission of a party is called non-judicial evidence.

3.10 Forensic science evidence

Forensic evidence is the physical evidence found at the crime scene. They

are considered as the secondary evidence, the documents being the primary evidence. The

35
primary evidence amalgamated with secondary evidence is presented in the court of law,

which helps the court to understand the facts and deliver the judgment.

Though the use of forensic evidence has seen a spike in the judicial system

across the world one can see only restrictive use in the Indian judiciary. In most cases,

courts have relied mainly on non-forensic evidence for a judgment.

A recent survey conducted by the Supreme Court of India and the High

Court of Delhi revealed that very few cases are solved with the involvement of forensic

evidence. DNA evidence has been used only in about five percent of the murder cases and

three percent of the rape cases.

There is agreement on the fact that medical and forensic proof play a vital

role in helping the courts of law to reach logical conclusions. Therefore, expert medical

professionals should be inspired to undertake medico-legal work. At the same time, the

atmosphere in courts ought to be congenial to the medical witnesses. This attains the utmost

importance considering the outcome of the case; because if good experts avoid court at-

tendance, the less skilled would fill the gap, thus affecting justice.

3.11 Narco analysis

Nowadays, investigating agencies have introduced new procedures for gath-

ering evidence. These are the lie detector, brain mapping, and narco-analysis. Again, there

is a big debate on narco-analysis and its validity.

36
 Narco-analysis is a relatively new development in the field of criminal in-

vestigation.The question that arises is: is the evidence by narco-analysis admissible in the

court of law?

In India, the narco-analysis test is done by a team comprising an anesthesi-

ologist, a psychiatrist, a clinical and forensic scientist, an audio-videographer, and support-

ing nursing staff. The forensic scientist prepares the report regarding the revelations that is

accompanied by a compact disk of audio-video recordings.

This process poses many questions about law and ethics. Some feel that it

is violating the provision of Art. 20 of the Indian Constitution against self-incrimination.

Summary - Here in the chapter – 3 we have studied the various types of the

evidences described and process of collection of evidences under the Indian evidence act.

In the next chapter – 4 we will study the various opinions of the judiciaries

in india.

37
 CHAPTER – 4

OPINION OF JUDICIARY

4.1 R. R. Chari vs State Of U.P on 28 March, 1962: 1962 AIR 1573, 1963 SCR (1) 121

SarjooPrasad, G.C.Mathur and G.P.Lal, for the respondent. 1962. March 28.

The Judgement of the Court was delivered by GAJENDRAGADKAR, J.-The appellant

R.R. Chari was a permanent employee in a gazetted post under the Government of Assam.

In 1941, his services were lent to the Government of India. The first appointment which

the appellant held under the government of India was that of the Deputy Director of Metals

in the Munitions Production Department at Calcutta. Then he came to Delhi on similar

work in the office of the Master-General of Ordnance which was the Steel Priority Author-

ity during the War period. He was subsequently trans- ferred to Kanpur as Assistant Iron a

Steel Controller in 1945.

Sometime thereafter, he become the Deputy Iron & Steel Controller, Kanpur

Circle; which post he held for one month in September, 1945. From January, 1946, be was

appointed to the said post and he held that post until September 20 1946. The period cov-

ered by the charges which were eventually formed against the appellant and, others is from

January 1, 1946 to September 20, 1946. On the latter date, the appellant proceeded on leave

for four months and did not return to' service either under the Government of India or under

the Assam Government.

It appears that while the appellant had proceeded on leave the Government

of India wrote to the Assam Government on February 8, 1947, intimating that it had desided

to replace the services of the appellant at the disposal of the Assam Government on the

38
expiry of the leave granted to him with effect from September, 21, 1946. The Government

of India also added that the exact period of the leave granted to the appellant would be

intimated to the Assam Government later. On April 28, 1947, leave granted to the appellant

was gazetted with effect from September 21, 1946 for a period of four months. A subse-

quent notification issued by the Central Government extended the leave up to May 13,

1947. On this latter date, the Central Government suspended the appellant, and on a warrant

issued by the District Magistrate, Kanpur, he was arrested on the October 28, 1947. Subse-

quently, he was released on bail.

Thereafter, the Government of India accorded sanction for the prosecution

of the appellant under s. 197 of the Criminal Procedure Code on the January 31, 1949. A

Charge-sheet was submitted by the prosecution alleging that the appellant along with three

of his former assistants had committed various acts of conspiracy, corruption and forgery

during the period 1, 1.1946 to 20-9- 1946 The other persons who were alleged to be co-

conspirators with the appellant, were vaish, a clerk in charge of licensing under the appel-

lant, Rizwi and Rawat who were also working as clerks under the appellant. Bizwi abs-

conded to Pakistan and Rawat died. In the result, the case instituted on the ,,aid charge sheet

proceeded against the appellant and Mr. Vaish.

Broadly stated the prosecution case was that during the period December

1945 to September 20, 1946, the appellant and Vaish and other entered into a criminal

conspiracy to do illegal acts, such as the commission of offenses under, ss. 161, 165, 467.

Indian Penal Code or in the alternative, Offenses such as were prescribed by r. 47 (3) read

with r. 47 (2) of the Defence of India Rules, 1939 and. abetment in the acquisition and sale

39
of Iron and .steel, in contravention of the Iron and Steel (Control of Distribution) Order

1941 ; and that in pursuance of the said conspiracy, they did commit the aforesaid illegal

acts from time to time and thus rendred themselves liable to be punished under s.120-B of

the Indian Penal Code. That was the substance of the first charge.

The Second Charge was in regard to the commission of the offence under s.

161 and it set out in detail the bribes accepted by the appellant from 14 specified persons.

In the alternative, it was alleged that by virtue of the fact that the appellant accepted valu-

able things from the persons specified, he had committed as offence under s. 165 Indian

Penal Code.

The third charge was under s. 467 Indian Penal Code or in the alternative,

under r. 47(3) read with r. 47(2) (a) of the Defence of India Rules. The substance of this

charge was that in furtherance of the conspiracy, the appellant fraudulently or dishonestly

made, signed or executed fourteen documents specified in clauses (a) to (n) in the charge.

Amongst these documents were included the orders prepared in the names of several deal-

ers and licences issued in their favour.

The fourth charge was that the appellant had abetted the firms specified in

clauses (a) to (k) in the commission of the offence under r 81(2) of the Defence of India

Rules. That, in brief, is the nature of the prosecution case against the appellant as set out in

the several charges. At the initial stage of the trial, the appellant took a preliminary objec-

tion that the sanction accorded by the Government of India to the prosecution of appellant

under s. 197 Code of Criminal Procedure was invalid. This objection was considered by

Harish Chandra J. of the Allahabad High Court and was rejected on the July, 18th 1949.

40
The learned Judge directed that since he found no substance in the preliminary contention

raised by the appellant, the record should be sent back to the trial Court without delay so

that it may proceed with the trial of the case. On May 7 1953, the appellant alone with

Vaish was tried by the Additional District and Sessions Judge at Kanpur. The charge un-

der s. 120-B was tried by the learned Judge with the aid of assessors, whereas the remaining

charges were tried by him with the aid of the jury. Agreeing with the opinion of the asses-

sors and the unanimous verdict of the jury, the learned Judge convicted the appellant un-

der s. 120 B and sentenced him to two years' rigorous imprisonment.

He also convicted him under section s. 161 and sentenced him to two years

Rigorous imprisonment and a fine of Rs, 25,000/-. in default to suffer further rigorous im-

prisonment for six months. For the offence under s. 467 Indian Penal Code of which the

appellant was convicted, the learned Judge sentenced him to four years' rigorous imprison-

ment. Be was also convicted under r. 81 (4) read with r. 121 and cls. 4,5, 11 b (3) and 12

of the Iron and Steel Order of 1941 and sentenced to two years'rigorous imprisonments. All

the sentences thus imposed on the appellant were to run concurrently. Vaish who was also

tried along with the appellant was similarly convicted and sentenced to different terms of

imprisonment.

The appellant and Vaish then appealed to the High Court against the said

order of convictions and sentence. It was urged on their behalf before the High Court that

the charge delivered by the Judge to the jury suffered from grave misdirections and non-

directions amounting to misdirections. his plea was accepted by the High Court and so, the

High Court examined the evidence for itself. In the main, the High Court considered the

41
ten instances adduced by the prosecution for showing that the appellant had accepted illegal

gratification and had committed the other offenses charged, and came to the conclusion that

the prosecution evidence in respect of eight instances could not be acted upon, whereas the

said evidence in respect of two instances could be safely acted upon. These two in-

stances were deposed to by Lala Sheo Karan Das and other witnesses and by Sher Singh

Arora and other witnesses.

In the result, the High Court confirmed the appellant's conviction under ss.

161 and 467 and the sentences imposed by the trial Court in that behalf. His conviction

under s. 120-B Indian Penal Code, and under r. 81(4) read with r. 121 Defence of India

Rules was set aside and he was acquitted of the said offenses. The High Court directed that

the sentences imposed on the appellant under ss. 161 and 467 should run concurrently. The

appeal preferred by Vaish was allowed and the order of conviction and sentence passed

against him by the trial Court in respect of all the charges was set aside. This order was

passed on March 17th, 1958. The appellant then applied for and obtained a certificate from

the High Court and it is with that certificate that he has come to this Court in appeal.

At, this stage, it would be useful to indicate briefly the main findings rec-

orded by the High Court against the appellant. As we have just indicated, there are only

two instances out of ten on which the High Court has made a finding against the appellant.

The first is the case of Lala Sheo Karan Das. According to the prosecution case, as a motive

or reward for issuing written orders and expediting supply of iron by the stock-holders'

Association Kanpur to Lala Sheo Karan Das, the appellant accepted from him Rs. 4,000/-

on 31.3.1946, Rs. 2,000/- on 9.4.1946; Rs. 1,060/- on 11.4.1946 and Rs. 1,000/-on 12.5-

42
1946 as illegal gratification. That is the basis of the charge under section 161. The prose-

cution case further is that in regard to the supply of iron to Lala Sheo Karan Das, certain

documents were forged and it is alleged that the written orders issued in that behalf Exhibits

P 341 and P 342 were ante-dated and the licences issued in that behalf were similarly ante-

dated. In support of this case, oral evidence was given by Lala Sheo Karan Das himself, his

son Bhola Nath and Parshotam Das, his nephew who is a partner with him. This oral evi-

dence was sought to be corroborated by relevant entries in kachhi rokar books. These en-

tries indicated that the several amounts had been paid by the firm to the appellant. The High

Court considered the oral evidence and held that the said evidence was corroborated by

entries in the account-books.

The argument that dacca rokar books had not been produced did not appear

to the High Court to minimise the value of the kachhi rokar books which were actually

produced, and the contention that the books of Account kept by accomplices themselves

could not, in law, corroborate their oral evidence, did not appeal to the High Court as sound.

It held that even though Sheo Karan Das, his son and his nephew may be black-marketeers,

it did not necessarily follow that they were liars. Besides, the High Court took the view that

there were certain pieces of circumstantial evidence which lent support to the oral testimony

of the accomplices. The ante-dating of the orders, and the supply of a large quantity of iron,

were two of these circumstances.

It is on these grounds that the High Court accepted the prosecution case

against the appellant under s. 161 Indian Penal Code. The High Court then examined the

evidence in support of the charge under s. 467 and it held that the manner in which the dates

43
in the quota register had been tampered with supported the oral testimony of the witnesses

that the applications made by Sheo Karan Das had been deliberately and fraudulently ante-

dated and orders passed on them and the licences issued pursuant to the said orders-all were

fraudulent documents which proved the charge under s. 467 as well as under r. 47 (3) read

with 47(2)(a). On these grounds, the appellant's conviction under s. 467 was also con-

firmed. As to the prosecution case in respect of the bribes offered by Sher Singh Arora, the

High Court was not satisfied with the evidence adduced in respect of the actual offer of

money, but it held that the evidence adduced by the prosecution in respect of the offer and

acceptance of certain valuable things was satisfactory. These valuable things were a three-

piece sofa sot, a centre piece, two stools and a revolving chair (Exts. 16 to 21). These were

offered on behalf of Sher Singh Arora and accepted by the appellant in January, 1946. In

dealing with this part of the prosecution case, the High Court considered the statements

made by the appellant and ultimately concluded that the charge under s. 161 had been

proved in respect of the said articles.

In regard to the charge under s. 467, the High Court adopted the same rea-

sons as it had done in dealing with the said charge in respect of Sheo Karan Das's transac-

tions and held that the said .charge had been proved. The licences which are alleged to have

been ante-dated are Exts. P 535 and P

536. The application which is alleged to have been ante- dated is Ext. P 294,

and the High Court thought that the relevant entries in the quota register showed that the

dates had been tampered with. In the result, the charge under s. 467 in respect of this

44
transaction was held to be established. An alternative charge was also proved against the

appellant under r. 47(3) read with r. 47(2) (c) Defence of India Rules.

The first point which Mr. Chari has raised before us is that the Addl. District

& Sessions Judge had no jurisdiction to try this case, because at the relevant time, the Crim-

inal Law Amendment Act, 1952(46 of 1952) had come into operation and the case against

the appellant could have been tried only by a Special Judge appointed under the said Act.

This argument has been rejected by the High Court and Mr. Chari contends that the decision

Of the High Court in erroneous in law. In order to deal with the merits of this point, it is

necessary to refer to some dates. The order of commitment was passed in the present pro-

ceedings on March 1, 1952. It appears that thereafter a list of defence witnesses was tiled

by the appellant before the Commiting Magistrate on July 24, 1952. On July 28, 1952,

the Criminal Law Amendment Act came into force. On August 14, 1952, Vaish filed a list

of witnesses before the committing Magistrate and requested that one of the prosecution

witnesses should be recalled for cross- examination.

On September 18, 1952, the District & Sessions Judge at Kanpur was ap-

pointed a Special Judge under the Act. On December 19, 1952, the case was taken up before

the Special Judge and the question as to where the case should be tried was argued. The

Special judge held that the question had been considered by the Madras High Court in the

case of P. K. Swamy and it had been held that the Special Judge had no jurisdiction to hear

the case because the order of commitment' had been passed prior to the passing of the Crim-

inal Law Amendment Act. Since the order of commitment in the present case had also been

passed before July 28, 1952, the Special Judge held that the case against the appellant must

45
be tried under the provisions of the Criminal Procedure Code and not under the provisions

of the Criminal Law Amendment Act; and so, an order was passed that the trial should be

held by the Additional District & Sessions Judge at Kanpur. After the case was thus trans-

ferred to the Add1. Sessions Judge at Kanpur, it was actually taken up before him on May

7, 1953, when the charge was read out to the accused persons and the jury was empanelled.

It is in the light of these facts. that the question about the jurisdictions of the trial Judge has

to be determined.

Two provisions of the Criminal Law Amendment Act fall to be considered

in this connections Section 7 provides that notwithstanding anything contained in the

Code of Criminal Procedure, or in any other law, the offenses specified in sub-section (1)

of s. 6 shall be triable by a Special Judge only, Offenses under ss. 161 and 165 Indian Penal

Code are amongst the offenses specified by s. 6(1). Section 7(2)(b) provides that when try-

ing any case, a Special Judge may also try any offence other than an offence specified in s.

6 with which the accused may, under the Code of Criminal Procedure be charged at the

same time. Therefore, if the offence under s. 161 falls under s. 7(1) and has to be tried by a

Special Judge, the other offenses charged would also have to be tried by the same Special

Judge as a result of s. 7(2)(b). It is clear that the provisions of a. 7 are prospective.

This position is not disputed. But it would be noticed that s. 7 does not pro-

vide for the transfer of pending cases to the special Judge and so, unless the appellant's case

falls under the provisions of s. 10 which provides for transfer, it would be tried under the

ordinary law in spite of the fact that the main offence charged against the appellant falls

under s. 6(1) of the Criminal Law Amendment Act. That takes us to s. 10 which deals with

46
the transfer of certain pending cases. This section provides that all cases triable by a special

Judge under s. 7 which immediately before the commencement of the Act, were pending

before any Magistrate shall, on such commencement, be forwarded for trial to the special

Judge having jurisdiction over such cases. It is thus clear that of the cases made triable by

a special Judge by s. 7, it is only such pending cases as are covered by s.10 that would be

tried by the special Judge. In other words, it is only cases triable by a special Judge under s.

7 which were pending before any Magistrate immediately before the commencement of

this Act that would tie transferred to the special Judge and thereafter tried by him.

So, the question to consider is whether the appellant's case could be said to

have been pending before any Magistrate immediately before the commencement of the

Act. This position also is not in dispute. The dispute centres round the question as to

whether the appellant's case can be said to have been pending before a magistrate at the

relevant time, and this dispute has to be decided in the light of the provisions contained

in s. 219 of the Code of Criminal Procedure. This section occurs in Chapter 18 which deals

with the enquiry into cases triable by the Court of Sessions or High Court. We have already

seen that on March 1, 1952, an order of commitment had been passed in the present case

and that means that the jurisdiction of the committing Court had been exercised by the said

Court under s. 213 of the Code. Mr Chari contends that though the order of commitment

had been passed, that does not mean that the case had ceased to be pending before the

committing Magistrate.

It is not disputed that once an order of commitment is made, the committing

Magistrate has no jurisdiction to deal with the said matter; he cannot either change the order

47
or set it aside. So far as the order of commitment is concerned, the jurisdiction of the Mag-

istrate has come to an end. The said order can be quashed only by the High Court and that

too on a point of law. That is the effect of s. 215 of the Code. It is, however, urged that s.

216 confers jurisdiction on the committing magistrate to summon witnesses for defence as

did not appear before the said Magistrate and to direct that they should appear before the

Court to which the accused had been committed. Similarly, before the said Magistrate,

bonds of complainants and witnesses can he executed as prescribed by s. 217. Section

219 confers power on the committing Magistrate to summon and examine supplementary

witnesses after the commitment and before the commencement of the trial, and to bind

them over in manner here in before provided to appear and give evidence. It is on the pro-

visions of this section that the appellant's case rests.

The argument is that since the committing magistrate is given power to sum-

mon supplementary witnesses even after an order of commitment has been passed, that

shows that the committing magistrate still hold jurisdiction over the case and in that sense,

the case must be deemed to be pending before him. We are not impressed by this argument.

The power to summon supplementary witnesses and take their evidence is merely a sup-

plementary power for recording evidence and no more.

This supplementary power does not postulate the continuance of jurisdiction

in the committing magistrate to deal with the case. It is significant that this power can be

exercised even by a Magistrate other than the committing magistrate, provided he is em-

powered by or under s. 206 and clearly, the case covered by the commitment order passed

by one magistrate cannot be said to be pending before another magistrate who may be

48
empowered to summon supplementary witnesses. When s. 10 of the Criminal law Amend-

ment Act refer to cases pending before any magistrate, it obviously refers to cases pending

before magistrates who can deal with them on the merits in accordance with law and this

requirement is plainly not satisfied in regard to any case in which a commitment order had

been passed by the committing magistrate.

After the order of commitment is passed, the case cannot be said to be pend-

ing before the committing magistrate within the meaning Of S. 10. Therefore, we are sat-

isfied that the High Court was right in coming to the conclusion that s. 10 did not apply to

the present case and so, the Addl. Sessions Judge had jurisdiction to try the case in accord-

ance with the provisions of the Code of Criminal Procedure. It is true that in dealing with

this point, the High Court has pro- ceeded on the consideration that the appellant's trial had

actually commenced befere the Addl. Sessions Judge even prior to July 28, 1952. In fact,

it is on that basis alone that the High Court has rejected the appellant's contention as to

absence of jurisdiction in the. trial Judge. We do not think that the reason given by the High

Court in support of this conclusion is right, because the trial of the appellant could not be

said to have commenced before May 7, 1953.

However, it is unnecessary to pursue this point any further because we are

inclined to take the view that the appellant's case does not fall under s. 10 of the Criminal

Law Amendment Act and that is enough to reject the contention of the appellant on this

point. The next argument raised is in regard to the validity of the sanction given by the

Government of India to the prosecution of the appellant. This sanction Ext. P-550 purports

to have been granted by the Governor-General of India under s. 197 of the Code for the

49
institution of criminal proceedings against the appellant. It has been signed by Mr. S.

Boothalingam, Joint Secretary to the Government of India on January 31, 1949. The sanc-

tion sets out with meticulous care all the details of the prosecution case on which the pros-

ecution rested their charges against the appellant and so, it would not be right to contend

that the, sanction has been granted as a mere matter of formality. The several details set out

in the sanction indicate that prima facie, the whole case had been considered before the

sanction was accorded.

Mr. Chari, however, attempted to argue that on the face of it, the sanction

does not show that the Governor-General granted the sanction after exercising his individ-

ual judgment. Section 197 of the code at the relevant time required that sanction for the

prosecution of the appellant should have been given by the Governor-General exercising

his individual Judgment, and since, in terms ‘, it does not say that the Governor-General in

exercise of his individual judgment had accorded sanction, the requirement of s. 197 is not

satisfied. That is the substance of the contention. In support of this contention, reliance is

sought to be placed on certain statements made by Mr. Boothalingam in his evidence. Mr.

Boothalingam stated that sanction of the Governor-General was conveyed by him as Joint

Secretary to the Government of India. He also added that authorities of the Government of

India competent to act in this behalf accorded the sanction and he conveyed it. His evidence

also showed that the matter had been considered by the competent authorities and that he

was one of those authorities.

Mr. Chari argues that Mr. Boothalingam has not, expressly stated that the

Governor-General applied his individual mind to the problem and exercising his individual

50
Judgment, came to the conclusion that the sanction should be accorded. This contention

had not been raised at any stage before and the point had not been put to Mr. Boothalingam

who gave evidence to prove the sanction. If the point had been expressly put to Mr. Boothal-

ingam be would have either given evidence himself on that point or would have adduced

other evidence to show that the Governor-General had exercised his indi- vidual judgment

in dealing with the matter. Therefore, we do not think that this plea can be allowed to be

raised for the first time in this Court.

That takes us to the question as to whether the Government of India was

competent to grant the sanction even if the appellant was at the relevant time a person

employed in connection with the affairs of the Federation. Mr. Chari contends that in the

case of the appellant whose services had been loaned by the Assam Government to the

Government of India, it could not be said that he was a parson permanently employed in

connection with the affairs of the Federation and so, cl. (a) of s. 197 (1) would not apply to

him at all. He was a person permanently employed in connection with the affairs of a State

and that took the case under cl. (b) which means that it is the Governor of Assam exercising

his individual judgment who could have accorded valid sanction to the appellant's prose-

cution. We are not impressed by this argument.

It is clear that the first part of s. 197 (1) provides a special protection, inter

alia, to public servants who are not removable from their offices save by or with the sanc-

tion of the State Government or the Central Government where they are charged with hav-

ing committed offenses while acting or purporting to act in the discharge of their official

duties; and the form which this protection has taken is that before a criminal court can take

51
cognizance of any offence alleged to have been committed by such public servants, a sanc-

tion should have been accorded to the said prosecution by the appropriate authorities.

In other words, the appropriate authorities must be satisfied that there is

prima facie, case for starting the prosecution and this prima facie satisfaction has been in-

terposed as a safeguard before the actual prosecution commences. The object of s.. 197(1)

clearly is to save public servants from frivolous prosecution, Vide, Afzelur Rahman v. The

King Emperor(1). That being the object of the section, it is clear that if persons happened

to be employed in connection with the affair's of the Federation, it was the Governer-Gen-

eral who gave sanction and if persons happened to be employed in connection with the

affairs of the State, it was the Governor. What is relevant for the purpose of deciding as to

who should give the sanction, is to ask the question where is the public servant employed

at the relevant time ? If he is employed in the affairs of the Federation, it must be the Gov-

ernor-General in spite of the fact that such employment may be temporary and may be the

result of the fact that the services of the public servant have been loaned by the State Gov-

ernment to the Government of India. Therefore, having regard to the fact that at the relevant

time the appellant was employed in connection with the affairs of the Federation, it was the

Governor-General alone who was competent to accord sanction. Therefore, our conclusion

is that the sanction granted by the Governor- General for the prosecution of the appellant

is valid.

The result is that the contention of the appellant that the sanction required

for his prosecution under section 161 and section 165 is invalid, succeeds and his trail in

respect of those two offenses must, therefore, be held to be invalid and without jurisdiction.

52
That being so, it is unnecessary to consider whether the finding of the High Court in respect

of the charge under s. 161 is justified or not. So, we do not propose to consider the evidence

led by the prosecution in respect of the said charge in relation to the two cases of Lala Shoo

Karan Das and Sher Singh Arora.

The charge under section 467 or the alternative charge under Defence of In-

dia Rules still remains to be considered, because the said offenses are outside the scope

of s. 6 of the Prevention of Corruption Act and the sanction accorded by the Governor-

General in respect of the appellant's prosecution for the said offenses is valid under s. 197 of

the Code of Criminal Procedure. What, then, are the material facts on which the conclusion

of the High Court is based? The first point on which stress has been laid both by Mr. Chari

and Mr. Sarjoo Prasad relates to the background of the case. Mr. Chari contends that the

prosecution of the appellant is, in substance, the result of the attempts successfully made

by the back-marketeers in Kanpur to involve the appellant in false charges and in support

of his plea, Mr. Chari has very strongly relied on the evidence of Mr. Kanhaiya Singh. This

witness was, at the relevant time, an Inspecting Assistant Commissioner of Income-tax at

Kanpur and his evidence seems to show that unlike his predecessor Mr. Talwar, the appel-

lant gave whole-hearted co-operation to the witness in discovering the illegal dealings of

black- marketeers in Kanpur in iron. According to the witness, the black-marketeers came

to know about the cooperation between him and the appellant and that disturbed them very

rudely.

Some lists were prepared by the appellant giving the witness detailed infor-

mation about the activities of the black-marketeers and the witness suggested that in order

53
to destroy the papers thus supplied to him by the appellant, a burgulary was arranged in his

house in May or June, 1946. A similar burgulary took place in the appellant's house. There

was also a fire in the appellant's house. The witness was asked whether any of the persons

who have given evidence against the appellant in the present case, were included in the list

supplied by the appellant to him, and the witness refused to answer the said question and.

claimed protection under s. 54 of the Income Tax Act. Mr Chari's argument is that the ac-

tivities of the appellant in cooperation with Mr. Kanhaiya Singh frightened the black-mar-

keteers and so, they organised the present plot to involve the appellant in a false case. In

that connection, Mr. Chari also relies on the fact that out of the ten instances, the story

deposed to in respect of eight has been rejected by the High Court.

On the other hand, Mr. Sarjoo Prasad has argued that as soon as the appellant

took charge from Mr. Talwar, he evolved a very clever scheme of establishing personal

contacts with the black marketeers; dispensed with the enquiry which used to be held prior

to the granting of licences to them and. thus introduced a practice of direct dealings with

the black-marketeers which facilitated the commission of the offenses charged against him.

He has also referred us to the evidence given by Mr. Sen which tends to show that the

appellant was frightened by the prospect of investigation and so, suddenly left Kanpur un-

der the pretext of illness. In other words, Mr. Sarjoo Prasad's argument is that the appellant

deliberately adopted a very clever modus operandi in discharging his duties as a public

servant and has, 'in fact, committed the several offenses charged against him. We do not

think that the ultimate decision of the narrow point with which we are concerned in the

present_ appeal can be determined either on the basis that the appellant is more sinned

against than a sinner or that he is a cold-blooded offender.

54
 Ultimately, we will have to examine the evidence specifically connected

with the commission of the offence and decide whether that evidence can legitimately sus-

tain the charge under s. 467. Let us take the case as disclosed by the evidence of Sheo Karan

Das in respect of the charge under s. 467. According to Sheo Karan Das, the two applica-

tions Exts. 35 and 36 were given by him in the office of the appellant on the 29th or 30th

March, 1946, but the appellant asked the witness to get other applications in which the date

should be prior to 23rd of March. Accordingly, the witness put the date 22nd March on his

applications. On the 29th or 30th March when the witness met the appellant, he asked for

130 tons and the appellant told him that he could give him more than that, provided, of

course, the appellant got his profit. Accordingly, after these applications were antedated,

the appellant passed orders and licences were issued. Thus, it would be seen that the pros-

ecution case is that the applications which were presented by Sheo Karan Das on the 29th

or 30th of March, were deliberately ante-dated in order that the orders subsequently passed

by the appellant and the licences issued thereunder should also appear to have been issued

prior to the 23rd of March and that, in substance, is the essence of the charge under s. 467.

When this case was put to the appellant, he made a somewhat elaborate

statement which it is necessary to consider. According to this statement, the appellant left

Kanpur on March 23, 1946, for a meeting with Mr. Spooner who was the Iron Steel Con-

troller at Calcutta. Mr. Spooner told him in confidence that there would be no more need

to issue licences after March 31, on account of decontrol. He also expressly desired that no

further licences need be issued by any Regional Dy. Iron & Steel Controller after March

26, 1946. The appellant returned to Kanpur on March 28, and attended office on ,he 29th.

He then found that the office had placed on his table a number of licences for which he had

55
already issued orders before he left Kanpur on the 23rd. Some new applications had also

come thereafter and these included applications from Government bodies and other public

institutions. These were also placed on his table.

The appellant urged that statutorily he had the power to issue licences until

March 31, even so, in order to comply with the desire expressed by Mr. Spooner, he ordered

that all licences should be issued as on March 23. The appellant emphasised that even if he

had dated the licences and his own orders as on the 30th or 31st March, that would have

introduced no invalidity in the orders or licences respectively, and so, he contended that

even though in form, the orders and the licences can be said to have been ante-dated, the

ante-dating did not introduce, any criminal element at all. It appears that after his return to

Kanpur on the 28th, a large number of licences were issued in this way. This statement of

the appellant thus shows that even on applications admittedly received after the 23rd, li-

cences were issued as on the 23rd and orders had been passed by the appellant in support

of the issue of such licences. This antedating of the licences is a circumstance on which the

prosecution strongly relies in support of the charge under s. 467.

The result is, the finding Of the High Court in respect of the charge against

the appellant under s. 467 or the alternative charge under the relevant Defence of India

Rules must be reversed, his conviction for the, said offenses set aside and be should be

ordered to be acquitted and discharged in respect of those offenses.

That raises the question as to whether we should order a retrial of the appel-

lant for the offence under s. 161. Mr. Sarjoo Prasad has argued that the interests of justice

require that the appellant should be asked to face a new trial in respect of the charge under

56
a. 161, Indian Penal Code if and after a valid sanction is obtained for his prosecution for

the same. We are not inclined to accept this argument. Two facts have weighed in-our

minds in coming to the conclusion that a retrial need not be ordered in this case. The first

consideration is that the accused has had to face a long and protracted criminal trial and the

sword has been hanging over his head for over 14 years.

The accused was suspended in 1947 and since then these proceedings have

gone on all the time, The second factor which has weighed in our minds is that though the

prosecution began with a charge of a comprehensive conspiracy supported by several in-

stances of bribery, on the finding of the High Court it is reduced to a case of bribery offered

by two persons; and then again, the substantial evidence is the evidence of accomplices

supported by what the High Court thought to be corroborating circumstances. It is true that

offenses of this kind should not be allowed to go unpunished, but having regard to all the

facts to which our attention has been drawn in the present case, we are not inclined to take

the view that the ends of justice require that the accused should be ordered to face a fresh

trial. The result is that the conviction of the appellant under section 161 is set aside on the

ground that his trial for the said offence was without jurisdiction since his prosecution in

that behalf was commenced without a valid sanction as required by s.6 of the prevention

of Corruption Act.

4.2 K. S. Dharmadatan vs Central Government And Ors: 1979 AIR 1495, 1979 SCR

(3) 832

The Judgment of the Court was delivered by FAZAL ALI, J.-This appeal by

special leave is directed against the judgment and order of the High Court of Kerala dated

57
11th July, 1975 dismissing a criminal revision petition filed by the appellant before the

High Court The point involved in the present appeal lies within a very narrow compass.

The appellant was being prosecuted for offences under sections 120-

B, 420, 471 and 468 read with section 34 I.P.C., section 167 (72) of the sea of the Sea Cus-

toms Act and section 5 (2) read with section 5 (1)(d) of the Prevention of Corruption Act.

At the time when the chargesheet was filed and the Special Judge took cognizance against

the appellant sometime in October, 1970 the appellant ceased to be a public servant and,

therefore, no sanction under section 6 of the Prevention of Corruption Act (hereinafter re-

ferred to as the Act) was obtained. It appears that in pursuance of a departmental enquiry

held against the appellant he was charge-sheeted and ultimately dismissed by the appoint-

ing authority.

Thereafter, the appellant filed an appeal before the President of India on 18-

10-1967 against his removal from service. After consulting the Union Public Service Com-

mission the President by his order dated 25-9-1972 allowed the appeal and set aside the

order of removal from service passed by the Collector of Customs against the appellant.

The order of the President further directed that the period of absence from 5-9-1967 till the

date of reinstatement was to be treated as under suspension. The appeal appears to have

been allowed by the President mainly on the ground that there was some defect in the

charge-sheet served by the disciplinary authority. The disciplinary authority was directed

to institute de novo proceedings against the appellant after rectifying the defect in the

charge-sheet. While these proceedings before the President were going on, the trial against

the appellant proceeded to its logical end and we now understand that evidence has already

been led and the arguments have to be heard.

58
 The appellant on being reinstated by the President filed an application be-

fore the special Judge praying that all further proceedings be dropped inasmuch as the pros-

ecution against the appellant was initiated in the absence of a proper and valid sanction

having been obtained under section 6 of the Act. The special Judge, however, rejected the

petition as a result of which the appellant moved the High Court but was not successful

there.

The only point raised by the appellant before the High Court as also before

us was that in view of the order of the President reinstating the appellant retrospectively,

the appellant must be deemed to be in service with effect from the date from which the

departmental proceedings were started against him, and, therefore, he would be a public

servant at the time when cognizance was taken by the special Judge, and as no sanction

under section 6 of the Act was obtained, the entire proceedings became void ab initio. Mr.

Sorabjee appearing for the respondents has submitted that admittedly and factually at the

point of time when the special Judge took cognizance of the case on 14-10-1970 the appel-

lant having been dismissed from service was no longer a public servant, and, therefore, sec-

tion 6 of the Act had no application. Section 6 of the Act runs thus:-

No court shall take cognizance of an offence punishable under section

161 or section 164 or section 165 of the Indian Penal Code, or under sub-section (2) or sub-

section (3A) of section 5 of this Act, alleged to have been committed by a public servant,

except with the previous sanction.

59
 1. in the case of a person who is employed in connection with the affairs of the Union

and is not removable from his office save by or with the sanction of the State Gov-

ernment or of the Central Government;

2. in the case of a person who is employed in connection with the affairs of a State and

is not removable from his office save by or with the sanction of the Central Gov-

ernment or of the State Government;

3. in the case of any other person, of the authority competent to remove him from his

office."

A perusal of this section would clearly disclose that the section applies only

where at the time when the offence was committed the offender was acting as a public

servant. If the offender had ceased to be a public servant then section 6 would have no

application at all. Further more, it is also manifest from the perusal of section 6 that the

point of time when the sanction has to be taken must be the time when the court takes

cognizance of an offence and not before or after. If at the relevant time, as indicated above,

the offender was not a public servant no sanction under section 6 was necessary at all.

"When the provisions of s. 6 of the Act are examined it is manifest that the

two conditions must be fulfilled before its provisions become applicable. One is that the

offences mentioned therein must be committed by a public servant and the other is that that

person is employed in connection with the affairs of the Union or a State and is not remov-

able from his office save by or with the sanction of the Central Government or the State

Government or is a public servant who is removable from his office by any other competent

authority. Both these conditions must be present to prevent a court from taking cognizance

60
of an offence mentioned in the section without the previous sanction of the Central Gov-

ernment or the State Government or the authority competent to remove the public servant

from his office. If either of these conditions is lacking, the essential requirements of the

section are wanting and the provisions of the section do not stand in the way of a court

taking cognizance without a, previous sanction. Conversely, if an offence under s. 161 of

the Indian Penal Code was committed by a public servant, but, at the time a court was asked

to take cognizance of the offence, that person had ceased to be a public servant one of the

two requirements to make s. 6 of the Act applicable would be lacking and a previous sanc-

tion would be unnecessary. The words in s. 6(1) of the Act are clear enough and they must

be given effect to".

To the same effect is a later decision of this Court in the case of C. R. Bansi

v. State of Maharashtra(1) In view of the observations referred to above, it is manifest that

as the appellant had ceased to be a public servant at the time when the cognizance of the

case was taken against him by the Special Judge no sanction under section 6 of the Act was

necessary.

It was, however, argued by Mr. Swaminadhan, learned counsel for the ap-

pellant that the logical consequence of the order of the President reinstating the appellant

was that he would be deemed to have been put jack into service on the date the charge-

sheet was submitted against him, and, therefore, he must be deemed to be a public servant

within the meaning of section 6 of the Act. In other words, the learned counsel wanted us

to import a legal fiction arising from the Presidential order by which even though factually

the appellant may not have been a public servant at the time when the cognizance was

61
taken, he would be deemed to be so by virtue of the Presidential order even though the

Presidential order may have been passed years after the cognizance was taken. We are

however unable to agree with the somewhat broad arguments advanced by the learned

counsel for the appellant.

To begin with, the dismissal of the appellant was not a nullity so as to vitiate

all proceedings previous or subsequent. It was merely an order passed by the President in

an appeal and the appellant succeeded because of a manifest defect in the charge-sheet. The

order passed by the President was therefore not an order on merits. There is nothing to show

that the President ever intended that the appellant should be deemed to have been reinstated

even for the purpose of section 6 of the Act so as to nullify actions completed, conse-

quences ensued or transactions closed.

In fact, when the President observed that the appellant shall be deemed to

have been placed under suspension from the date of the original order of dismissal it merely

meant that for the purpose of certain civil consequences flowing from the order of the Pres-

ident. namely, the grant of subsistence allowance or other benefits the, order would be

deemed to be retroactive in character. It is well settled that a deeming provision cannot be

pushed too far so as to result in a most anamolous or absurd position.

In the case of Commissioner of Sales Tax, Uttar Pradesh v. The Modi Sugar

Mills Ltd. (1) while laying down the principles on the basis of which a deeming provision

should be construed this Court observed as follows:-

"A legal fiction must be limited to the purposes for which it has been created

and cannot be extended beyond its legitimate field".

62
 Similarly in the case of Braithwaite & Co. (India) Ltd. v. Employees' State

Insurance Corporation(2) this Court further amplifying the principle of the construction of

a deeming provision observed thus:-

"A legal fiction is adopted in law for a limited and definite purpose only and

there is no justification for extending it beyond the purpose for which the legislature

adopted".

In the Bengal Immunity Co. Ltd. v. State of Bihar and Ors.(3) this Court

pointed out that "explanation should be limited to the purpose the Constitution-makers had

and legal fictions are created only for some definite purpose".

In the case of Commissioner of Income Tax Bombay City v. Elphinstone

Spinning and Weaving Mills Co. Ltd.(4) this court observed as follows:-

"As we have already stated, this fiction cannot be carried further than what

it is intended for".

Thus, it is well settled that a deeming fiction should be confined only for the

purpose for it is meant. In the instant case, the order of the President reinstating the appel-

lant and creating a legal fiction regarding the period of suspension must be limited only so

far as the period of and the incidents of suspension were concerned and could not be carried

too far so as to project it even in cases where actions had already been taken and closed. In

other words, the position seems to be that at the time when actual cognizance by the court

was taken the appellant had ceased to be a public servant having been removed from ser-

vice. If some years later he had been reinstated that would not make the cognizance which

63
was validly taken by the court in October, 1970 a nullity or render it nugatory so as to

necessitate the taking of a fresh sanction.

We, therefore, entirely agree with the view taken by the High Court that in

the facts and circumstances of the present case legal fiction arising out of the Presidential

order cannot be carried to nullify the order of cognizance taken by the special Judge. The

argument of the learned counsel for the appellant is, therefore, overruled. No other point

was pressed before us. The appeal being without merit is accordingly dismissed. The spe-

cial Judge would now hear the arguments of the parties and dispose of the case as expedi-

tiously as possible. Let the records be sent back to the special Judge immediately.

4.3 State Of Punjab & Anr vs Mohammed Iqbal Bhatti: (2009) 17 SCC 92

Respondent was working as Block Development and Panchayat Officer. A

First Information Report was lodged against him on or about 6.9.2001 under Sections

7 and 13(2) of the Prevention of Corruption Act, 1988. Upon completion of investigation,

the Vigilance Department sought for sanction from the competent authority so as to enable

it to prosecute the respondent. By an order dated 15.12.2002, grant of such sanction was

refused. The matter, however, was placed before the competent authority once again and

on or about 14.9.2004 sanction to prosecute the respondent was granted. Questioning the

legality and/or validity of the said order, the respondent filed a writ petition before the High

Court of Punjab and Haryana.

By reason of the impugned judgment, the said writ petition was allowed

opining that the State has no power of review and in any event, the impugned order could

64
not have been passed as the State while passing its earlier order dated 15.12.2003 has ex-

hausted its jurisdiction.

Mr. Vivek K. Goyal, learned Additional Advocate General appearing on

behalf of the appellants, would urge that the jurisdiction for grant of sanction being an

administrative one, the State has the requisite power to review its earlier order. It was urged

that it is incorrect to contend that power once exercised stands exhausted.

Mr. Jasdeep Singh Gill, learned counsel appearing on behalf of the respond-

ent, on the other hand, urged that the order impugned in the writ petition having been passed

by the State on the same material, the said order was wholly illegal.

The respondent is a public servant. The Governor of the State of Punjab is

his appointing authority. He is, therefore, not removable from his office save by and with

the sanction of the Government and in that view of the matter if he is accused in any offence

alleged to have been committed by him while acting or purporting to act in discharging of

his official duty, grant of prior sanction is imperative in character in terms of Section 197 of

the Code of Criminal Procedure, 1973. The power of the State, as is well known, is per-

formed by an executive authority authorized in this behalf in terms of the Rules of Execu-

tive Business framed under Article 166 of the Constitution of India insofar as such a power

has to be exercised in terms of Article 162 thereof. Once a sanction is refused to be granted,

no appeal lies thereagainst.

Although the State in the matter of grant or refusal to grant sanction exer-

cises statutory jurisdiction, the same, however, would not mean that power once exercised

cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express

65
power of review in the State may not be necessary as even such a power is administrative

in character. It is, however, beyond any cavil that while passing an order for grant of sanc-

tion, serious application of mind on the part of the concerned authority is imperative. The

legality and/or validity of the order granting sanction would be subject to review by the

criminal courts. An order refusing to grant sanction may attract judicial review by the Su-

perior Courts. Validity of an order of sanction would depend upon application of mind on

the part of the authority concerned and the material placed before it. All such material facts

and material evidences must be considered by it.

The sanctioning authority must apply its mind on such material facts and

evidences collected during the investigation. Even such application of mind does not appear

from the order of sanction, extrinsic evidences may be placed before the court in that behalf.

While granting sanction, the authority cannot take into consideration an irrelevant fact nor

can it pass an order on extraneous consideration not germane for passing a statutory order.

It is also well settled that the Superior Courts cannot direct the sanctioning authority either

to grant sanction or not to do so. The source of power of an authority passing an order of

sanction must also be considered. [See Mansukhlal vithaldas Chauhan v. State of Guja-

rat [(1997) 3 SCC 622]

The concerned authority cannot also pass an order of sanction subject to

ratification of a higher authority. [See State (Anti Corruption Branch) Govt. of N.C.T. of

Delhi and Anr. v. Dr. R.C. Anand and Anr. [(2004) 4 SCC 615].

The High Court called for the entire records. It perused the same. It noticed

that several queries were raised but remained unanswered. The Departmental proceeding

66
initiated against the respondent was dropped. The recommendations therefore were made

not to grant sanction on the basis whereof the aforementioned order dated 15.12.2003 was

passed. A finding of fact has been arrived at by the High Court that no material was placed

before the competent authority. Only a communication had been received from the Direc-

tor, Vigilance Bureau dated 22.6.2004 wherein reference of the letter dated 26.5.2004 was

made. It, according to the High Court, was not a new material.

The contention of the learned Additional Advocate General for the appel-

lants is that Rule 8 of the Rules of Business shall apply whereas according to the learned

counsel for the respondent, Rule 9 thereof shall apply. In terms of Clause (3) of Article

166 of the Constitution of India all orders of the government must be issued in the name of

the Governor. Such orders, however, may be signed by any authorities specified in Rule 9

of the Rules of Business. By reason of either Rule 8 or Rule 9 of the Rules of Business, no

substantive power is conferred. The Rules of Executive Business inter alia provided for

three authorities before whom the records are to be placed, viz., Minister of the Department,

Chief Minister and Cabinet. It has not been contended that in terms of the Rules of Execu-

tive Business read with the Standing Order, the Minister of the Department concerned could

not have refused to grant sanction. What is contended before us is that Rule 8 of the Rules

of Business should have been complied with.

It is now well-known that in the event it appears from the order and the

records produced before the court, if any occasion arises therefor that even if a valid order

is not authenticated in terms of Clause (3) of Article 166 of the Constitution of India, the

same would not be vitiated in law. Failure to authenticate an executive order is not fatal.

67
The said provision is directory in nature and not mandatory. [See I.T.C. Bhadrachalam

Paperboards and Another v. Mandal Revenue Officer, A.P. and Others (1996) 6 SCC 634].

From a perusal of the order dated 15.12.3003, it is evident that before the Hon'ble Minister

all the relevant records were produced.

The Vigilance Department did not contend that the Hon'ble Minister did not

have any jurisdiction. It accepted the said order. It was not challenged. Only when a new

government came in, a request was made for reconsideration of the earlier order, as would

be evident from the memo of the Secretary of the Department.

It was, therefore, not a case where fresh materials were placed before the

sanctioning authority. No case, therefore, was made out that the sanctioning authority had

failed to take into consideration a relevant fact or took into consideration an irrelevant fact.

If the clarification sought for by the Hon'ble Minister had been supplied, as has been con-

tended before us, the same should have formed a ground for reconsideration of the order.

It is stated before us that the Government sent nine letters for obtaining the clarifications

which were not replied to.

The High Court in its judgment has clearly held, upon perusing the entire

records, that no fresh material was produced. There is also nothing to show as to why re-

consideration became necessary. On what premise such a procedure was adopted is not

known. Application of mind is also absent to show the necessity for reconsideration or

review of the earlier order on the basis of the materials placed before the sanctioning au-

thority or otherwise.

68
 For the reasons aforementioned, there is no merit in this appeal which is

dismissed accordingly. However, in the facts and circumstances of the case, there shall be

no order as to costs.

4.4 Superintendent Of Police vs Deepak Chowdhary & Ors: 1996 AIR 186, 1995 SCC

(6) 225

The facts lie in a short compass. During the year 1982, while the respondent

no.1 was working as a Branch Manager in Desh Priya branch of the United Bank of India

at Calcutta it was realised that certain officers working in that bank had conspired with a

creditor and the bank was defrauded for a sum of Rs.45,000/-. On a complaint laid, a crime

case was registered and the appellant investigated the matter and submitted the report to

the competent authority for sanction, who, by its order dated the 14th January, 1987 ac-

corded sanction under 6(1-c) of the Prevention of Corruption Act, 1947 (for short, `PC Act)

to file the charge-sheet against the respondent for the offences punishable under Section

120B, 420, 467, 468, 471, 477A, 201 and 109 IPC and also under Section 5(1) (d) read

with Section 5(2) of the PC Act. The respondent filed writ petition in the High Court to

quash the sanction. The High Court by the impugned order dated the 2nd April, 1992 in

Matter No.498/87 quashed the sanction on two grounds, namely, that the respondent was

not given any opportunity of hearing before granting sanction and in the departmental en-

quiry conducted by the Bank, respondent was exonerated of the charge. Therefore, it was

not expedient to proceed with the prosecution of the respondent. Hence, the above appeal

has been filed.

69
 It is contended for the appellant that the question of giving an opportunity

to the charged officer before granting sanction does not arise since it is not a quasi-judicial

function. Grant of sanction is an administrative function. What is required is that the inves-

tigating officer should place all the necessary material before the sanctioning authority who

should apply its mind to that material and accord sanction. Therefore, the question of giving

opportunity of hearing to the accused before granting sanction does not arise.

We find force in the contention. The grant of sanction is only an adminis-

trative function, though it is true that the accused may be saddled with the liability to be

prosecuted in a court of law. What is material at that time is that the necessary facts col-

lected during investigation constituting the offence have to be placed before the sanctioning

authority and it has to consider the material. Prima facie, the authority is required to reach

the satisfaction that the relevant facts would constitute the offence and then either grant or

refuse to grant sanction. The grant of sanction, therefore, being administrative act the need

to provide an opportunity of hearing to the accused before according sanction does not

arise. The High Court, therefore, was clearly in error in holding that the order of sanction

is vitiated by violation of the principles of natural justice.

The second ground of departmental exoneration by the disciplinary author-

ity is also not relevant. What is necessary and material is whether the facts collected during

investigation would constitute the offence for which the sanction has been sought for.

It is not appropriate at this stage to go into the merits of the culpability of

the respondent though sought to be contended for by Shri Thopas Roy, the learned counsel.

70
In fairness to the accused, we deem it inappropriate to go into the merits to express any

opinion.

The appeal is accordingly allowed, the order of the High Court is set aside

and the trial court is directed to proceed with the trial against the respondent as expedi-

tiously as possible and conduct joint trial, if trial is not already concluded, along with other

accused. If the case has been separated and the trial of other accused has been concluded,

then the trial court is directed to expeditiously conclude the trial of the respondent, not

exceeding one year.

4.5 R. S. Nayak vs A. R. Antulay: 1984 AIR 684, 1984 SCR (2) 495

The Judgment of the Court was delivered DESAI, J. Respondent Abdul

Rehman Antulay (hereinafter referred to as the accused) was the Chief Minister of the State

of Maharashtra from 1980 till he submitted his resignation on January 20, 1982, which

became effective from January 20, 1982. He thus ceased. to hold the office of the Chief

Minister from January 20, 1982 but continues to be a sitting member of the Maharashtra

Legislative Assembly till today.

As the contentions canvassed before this Court are mainly questions of law,

facts at this stage having a peripheral relevance in the course of discussion, it is unnecessary

to set out the prosecution case as disclosed in the complaint filed by complainant Ramdas

Shrinivas Nayak (complainant for short) in detail save and except few a pertinent and rel-

evant allegations. In the process the brief history or the litigation may also be traced.

The complainant moved the Governor cf Maharashtra by his application

dated September 1, 1981 requesting him to grant sanction to prosecute the accused as

71
required by Sec. 6 of the Prevention of Corruption Act, 1947 ('1947 Act' for short) for var-

ious offences alleged to have been committed by the accused and neatly set out in the ap-

plication. Complainant then filed the first complaint in the Court of Chief Metropolitan

Magistrate, 28th Esplanade, Bombay on September 11, 1981 being Criminal Case No. 76

Misc. of 1981 against the accused and others known and unknown collaborators alleging

that the accused in his capacity as Chief Minister and thereby a public servant within the

meaning of Sec. 21 of the Indian Penal Code (IPC) has committed offences under Secs.

161, 165 IPC and Sec. 5 of the 1947 Act, Sec. 384 and Sec. 420 IPC read with Secs. 109

and 120-B IPC. The complaint runs into 31 closely typed pages and carried the list of 37

witnesses.

The learned Metropolitan magistrate invited the complainant to satisfy him

as to how the complaint for offences under Secs. 161, 165 IPC and Sec. 5 of the 1947 Act

is maintainable without a valid sanction as contemplated by Sec. 6 of 1971 Act and ulti-

mately held that in the absence of a valid sanction from the Governor of Maharashtra, the

complaint filed by the complainant for the aforementioned three offences was not main-

tainable. The learned Metropolitan Magistrate accordingly held as per order dated October

6, 1981 that the complaint was maintainable only for offences alleged to have been com-

mitted by the accused under. Secs. 384 and 420 read with Secs. 109 and 120B of

the IPC and directed that the case be fixed for examining the complainant as required by

Sec. 200 of the Cr. P.C. The complainant questioned the correctness of this order in Special

Criminal Application No. 1742 of 1981 filed in the High Court of Judicature at Bombay.

72
 In the meantime, another development had taken place which may be briefly

noticed. One Shri P.B. Samant, who has also filed an identical complaint against the ac-

cused along with several others filed a Writ Petition No. 1165 of 1981 in the High Court of

Judicature at Bombay challenging the method of distribution of ad hoc allotment of cement

in the State of Maharashtra as being contrary to the rule of law and probity in public life.

The accused as the second respondent in this petition, the first and third respondents being

the State of Maharashtra and Union of India respectively. By an exhaustive speaking order

dated September 23, 1981, a learned Single Judge of the High Court granted rule nisi and

made it returnable on November 23, 1981. The writ petition came up for hearing before

another learned Single Judge who by his judgment dated January 12, 1982 made the rule

absolute. Probably as a sequel to this decision of the High Court, the accused tendered his

resignation as Chief Minister on the same day and when the resignation was accepted he

ceased to hold the office of the Chief Minister with effect from January 20, 1982.

Special Criminal Application' No. 1942 of 1981 filed by the complainant

against the order of the learned Chief Metropolitan Magistrate was dismissed by a Division

Bench of the High Court on April 12, 1982. Not the accused but the State of Maharashtra

preferred an appeal by special leave under Art. 136 of the Constitution against the decision

of the Division Bench of the High Court rejecting the special criminal application; This.

Court rejected the application for special leave at the threshold on July 28, 1982.

Promptly, on the heels of the judgment of this Court, the Governor of Ma-

harashtra on the same day granted the sanction under Sec. 6 of the 1947 Act to prosecute

the accused in respect of specific charges set out in the order according sanction. Armed

73
with this sanction, the complainant filed a fresh complaint in the Court of the Special Judge,

Bombay registered as Criminal Case No. 24 of 1982 against the accused as Accused No. 1

and others known and unknown. In this complaint it is broadly alleged that the accused

who was the Chief Minister of the State of Maharashtra between the period August 1980

to September 1981 conceived scheme of aggrandisement involving obtaining of funds from

the members of the public and putting them substantially under his own control for the

disbursal of the funds so obtained.

The complaint proceeded to refer to the setting up of various trusts and al-

leged that the corner- stone of the scheme involved receipt by the accused of illegal grati-

fication other than legal remuneration as a motive or reward for doing or forbearing to do

any official act, or for showing or forbearing to show in the exercise of his official func-

tions, favour or disfavor to persons, or for rendering or attempting to render any service or

disservice to such persons who dealt with the State Government in general and with public

servants who formed part of the Government. It was specifically alleged that the scheme

devised by the accused was a flagrant abuse of his official position as Chief Minister for

obtaining control over funds which would be used for purposes conducive to the interest of

the accused himself.

The complainant proceeded to set out the abuse of office of Chief Minister

by the accused citing various alleged instances such as distribution of adhoc cement con-

trary to law and the binding circulars, granting liquor Licences as and by way of distribution

of Government largesse, issuing no objection certificates for letting out premises by ob-

taining a price for the same. The running thread through various allegations is that the

74
accused by abusing or misusing his office of Chief Minister obtained or attempted to obtain

gratification other than legal remunerations a motive or reward for doing or forbearing to

do any official act as Chief Minister or for showing or forbearing to show in the exercise

of his official functions, favour or disfavour to persons etc. To this complaint, the order

granting sanction to prosecute the accused made by the Governor of Maharashtra was an-

nexed and produced. After recording the verification of the complaint, the learned Special

Judge took cognizance of the offences and issued process by directing a bailable warrant

to be issued in the sum of Rs. 10,000 with one surety and made it returnable on September

3, 1983.

On the process being served the accused appeared and sought exemption

from personal appearance which was granted for a day and the case was adjourned to Oc-

tober 18, 1982 for recording the evidence of the complainant and his witnesses for the

prosecution.

When the case was called out on October 18, 1982 an application was

moved on behalf of the accused inter alia contending that the Court of the learned special

Judge had no jurisdiction in view of the provision contained in Sec. 7 of the Criminal Law

Amendment Act, 1952 ('1952 Act' for short) and that no cognizance can be taken of of-

fences punishable under Secs. 161, 165 IPC and Sec. 5 of the 1947 Act on a private com-

plaint. The case was at that time pending in the Court of the special Judge presided over by

one Shri P.S. Bhutta. The learned special Judge by his order dated October 20, 1982 re-

jected both the contentions and set down the case for November 29, 1982 for recording

evidence of the prosecution.

75
 The learned special Judge made it abundantly clear that under no circum-

stance the case would be adjourned on the next occasion and if any revision or appeal is

intended to be filed against the order, the learned counsel for the accused should give ad-

vance notice to the learned counsel for the complainant.

The accused filed Criminal Revision Application No. 510 of 1982 against

the order of the learned special Judge dated October 20, 1982 rejecting his application. On

January 16, 1983, the Government of Maharashtra issued a notification in exercise of the

powers conferred by sub-sec. (2) of Sec. 7 of 1952 Act and in modification of the earlier

Government order dated April 12, 1982, directing that in Greater Bombay on and after the

date of the notification the offences specified in sub-sec. (1) of sec. 6 of the 1947

Act which are investigated by the Anti-Corruption Bureau of Police in

Greater Bombay, except special cases No. 14, 15 and 16 of 1977 and Special Case No. 31

of 1979 to 37 of 1979 (both inclusive) shall continue to be tried by Shri R.B. Sule. The net

outcome of this notification was that Special Case No. 24 of 1982 pending in the Court of

Special Judge Shri P.S. Bhutta would stand transferred to the Court of Shri R.B. Sule, Ad-

ditional Special Judge for Greater Bombay.

On a reference by the learned Single Judge, a Division Bench of the Bombay

High Court heard and dismissed on arch 7, 1983 Criminal Revision Application No. 510

of 1982 filed by the accused against the order of learned special Judge Shri P.S. Bhutta

dated October 20, 1982. The Division Bench in terms held that the private com plaint was

maintainable and as the required notification has already been issued, Shri R.B. Sule will

have jurisdiction to try Special Case No. 24 of 1982. The learned trial Judge Shri R.B. Sue

76
on receipt of the record of the case issued a notice on April 27, 1982 calling upon all parties

to appear before him on April 21, 1983. lt appears on July 8, 1783, two applications were

moved on behalf of the accused urging the learned trial Judge; (i) to discharge the accused

inter alia on the ground that the charge was groundless and that even though the accused had

ceased to be the Chief Minister, on the date of taking cognizance of the offences, he was a

sitting member of the Maharashtra Legislative Assembly and as such a public servant and

in that capacity a sanction to prosecute him would have to be given by the Maharashtra

Legislative Assembly and the sanction granted by the Governor would not be valid in this

behalf.

The second petition requested the learned Judge to postponed the case till

the petition for special, leave field by the accused against the decision of the Division Bench

cf the High Court holding that the private complaint was maintainable is disposed of Both

these applications came up for hearing before Shri R.B. Sule, who by his order dated July

25, 1783 upheld the contention of the accused that M.L.A was a public servant within the

meaning of the expression in Sec. 21 (12) (a) IPC and that unless a sanction to prosecute

him by the authority competent to remove him from his office as M.L.A. was obtained

which in the opinion of the learned Special Judge. was Maharashtra Legislative Assembly

the accused is entitled to be discharged.

So saying, the learned Judge discharged the accused. The complainant filed

a petition for special leave to appeal No. 1850 of 1983 and a Writ Petition (Crl.) No. 145

of 3983 against the decision of the learned special Judge. Both these matters came up before

this Court on August 3, 1983 when the matters were adjourned to August 10, 1983 to enable

77
the petitioner, original complainant to file a criminal revision application against the order

of the learned special Judge in the High Court. Accordingly, the complainant filed Criminal

Revision Application No. 354 of 1983 in the High Court against the order of learned special

Judge Shri R.B. Sule. This Court ultimately granted special leave to appeal as also rule nisi

in the writ petition. By an order made by this Court, the criminal revision application filed

by the petitioner stands transferred to this Court.

It may be mentioned that this Court has granted special leave to the accused

against the decision of the Division Bench of the Bombay High Court holding that a private

complaint is maintainable etc. Criminal Appeal No. 247 of 1983 arising out of the said

special leave petition is being heard along with this matter but that will be dealt with sepa-

rately.

While discharging the accused, the learned special Judge held that the ma-

terial date for deciding the applicability of Sec. 6 of the 1947 Act is the date on which the

court is asked to take cognizance of the offence.

Proceeding further it was held that even though the accused had ceased to

hold the office of the Chief Minister on the date on which cognizance was taken by the

learned special Judge, Shri Bhutta, yet on that date he was a sitting M.L.A. and was there-

fore a public servant within the meaning of the expression in Sec. 21 (12)(a) in as much as

the M.L.A. is a person in the pay of the Government or at any rate he is remunerated by

fees for performance of public duty by the Government and therefore, he is a public servant.

As a corollary, the learned Judge held that as on the date of taking cognizance of the offence

the accused was a public servant, he could not be prosecuted without a valid sanction as

78
contemplated by Sec. 6 of the 1947 Act. The learned Judge further held that the M.L.A.

holds an office and he can be removed from that office by the Legislative Assembly because

the latter has the power to expel a member which would amount to removal from office.

The learned Judge further held that as there was no sanction by the Maha-

rashtra Legislative Assembly to prosecute the accused and as the Governor had no power

to sanction prosecution of the accused in his capacity as M.L.A. the accused is entitled to

be discharged for the of offences under Secs. 161, 165, 120-B, 109 IPC and Sec. 5 of the

1947 Act for want of a valid sanction for prosecution, and in respect of the other offences,

the accused is entitled to be discharged on the ground that the court of the special Judge

had no jurisdiction to try the accused for those offences.

In respect of those other offences, the learned Judge directed the complaint

to be returned to the, complainant for presenting it to the proper court. It may be mentioned

that by a common order in Special Case No. 3 of 1983 instituted upon the complaint of Mr.

P.B. Samant, the accused was discharged.

This interrelation between to office and its abuse if serered would render

Sec. 6 devoid of any meaning. And this interrelation clearly provides a clue to the under-

standing of the provision in Sec. 6 providing for sanction by a competent authority who

would be able to judge the action of the public servant before removing the bar, by granting

sanction, to the taking of the cognizance of offences by the court against the public servant.

Therefore, it unquestionably follows that the sanction to prosecute can be given by an au-

thority competent to remove the public servant from the office which he has misused or

79
abused because that authority alone would be able to know whether there has been a misuse

or abuse of the office by the public servant and not some rank outsider.

By a catena of decisions, it has been held that the authority entitled to grant

sanction must apply its mind to the facts of the case, evidence collected and other incidental

facts before according sanction. A grant of sanction is not an idle formality but a solemn

and sacrosanct act which removes the umbrella of protection of government servants

against frivolous prosecutions and the aforesaid requirements must therefore, be strictly

complied with before any prosecution could be launched against public servants. (See

Mohd. Iqbal Ahmad v. State of Andhra Pradesh).

The Legislature advisedly conferred power on the authority competent to

remove the public servant from the office to grant sanction for the obvious reason that that

authority alone would be able, when facts and evidence are placed before him, to judge

whether a serious offence is committed or the prosecution is either frivolous or speculative.

That authority alone would be competent to judge whether on the facts al-

leged, there has been an abuse or misuse of office held by the public servant. That authority

would be in a position to know what was the power conferred on the office which the public

servant hold, how that power could be abused for corrupt motive and whether prima facie

it has been so done.

That competent authority alone would know the nature and functions dis-

charged by the public servant holding the office and whether the same has been abused or

misused. It is the vertical hierarchy between the authority competent to remove the public

servant from that office and the nature of the office hold by the public servant against whom

80
sanction is sought which would indicate a hierarchy and which would therefore, permit

inference of knowledge about the functions and duties of the office and its misuse or abuse

by the public servant. That is why the legislature clearly provided that that authority alone

would be competent to grant sanction which is entitled to remove the public servant against

whom sanction is sought from the office.

Summary – Here in the chapter – 4 we have studied out the various opinions

of the judiciaries given on the various cases related to this dissertation.

In the chapter – 5 we will study the various available legal provisions that

are available in india.

81
 CHAPTER – 5

LEGAL PROVISIONS

5.1 What is Evidence Law?

Before diving into the concept of “evidence law,” it is necessary to first ex-

plore the definition of “evidence” in general. The term evidence was derived from the Latin

word ‘Evidera,’ which means lucidity, clarity in presentation, and the ability to prove the

facts in question.

In its original sense, the word “evidence” refers to the state of being evident,

i.e. plain, obvious, or well-known. However, it is used to describe something that tends to

produce evidence or proof. The principal fact is the one that needs to be proven, and the

evidentiary fact is the one that tends to establish it. To put it another way, it can be said

that, evidence acts as the eyes and ears of the court

In the words of Sir William Blackstone, evidence “Signifies that which

demonstrates, makes clear or ascertains the truth of the facts or points in issue.” Faylor

describes evidence as “all means which tend to prove or disprove any matter, fact, the truth

of which is submitted to judicial investigation.”

According to Dr. Johnson’s Dictionary, the word evidence signifies “the

state of being evident, that is plain apparent or notorious”. Bentham defined “evidence” as

“any matter of fact, the effect, tendency or design of which is to produce in the mind a

persuasion affirmative or disaffirmative, of the existence of some other matter of fact.”

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 Wigmore defined ‘evidence’ as representing “Any knowable fact or group

of facts, not a legal or logical principle, considered with a view to its being offered before

a legal Tribunal to produce a persuasion, positive or negative, on the part of the Tribunal,

as to the truth of a proposition, not of law, or of logic, on which the determination of the

Tribunal is to be asked.”

According to Stephen, “It sometimes means words uttered and things exhib-

ited by witnesses before a Court of Justice. At other times, it means the facts proved to exist

by those words or things and regarded as grand work of inference as to other facts not so

proved. Again, it is sometimes used as meaning to assert that a particular fact is relevant to

the matter under inquiry.”

Thus, evidence is defined as anything that tends to verify or deny the exist-

ence or nonexistence of a stated fact. The party who claims the presence of a fact must

prove its existence, whereas the party who denies it must disprove its existence or establish

its non-existence.

5.2 Indian Evidence Act, 1872

‘Evidence’ means and includes the following:

1. All statements made before the Court by witnesses about matters of fact under in-

vestigation, which the Court permits or requires; such statements are referred to as

oral evidence;

2. All documents (including electronic records) presented for the inspection of the

Court; such materials are referred to as documentary evidence.

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The Supreme Court made the following observations on evidence, the word ‘evidence’ has

been used in common parlance in three different senses: as

1. Equivalent to relevant,

2. As equivalent to proof, and

3. As equivalent to the material, based on which Courts conclude the existence or non-

existence of disputed facts.

5.3 Enactment of the Indian Evidence Act, 1870

The Governor-General established the first Act pertaining to rules of evi-

dence in 1835. 1835 and 1855, a series of Acts were passed to successfully incorporate the

reforms proposed by Jeremy Bentham.

Acts 10 of 1855, Act 8 of 1859, Act 25 of 1861, and Act 15 of 1869 were

also passed, however, the courts in India followed English law of evidence when delivering

judgment, though only a portion of English law was applicable in the Mofussil area and

Presidency Towns. As a result, the position was rather unsatisfactory, and the Judges made

comments about it in their judgments in the case of Gajju Lal v. Fattehlal, ILR 6 Cal 171

In the words of Richard Garth, C.J.” The law of evidence is not just a fun-

damental principle governing the process of proof rather it also has a multidimensional

purpose of governing the rules relating to the process of proof in court proceedings. So the

process of evidencing any facts or proof should be governed by a well-established law to

achieve speedy and fair justice…instead of binding the Courts of this country by the strict

rules of evidence, it would be more desirable and was in fact the intention of the Evidence

Act to render all decrees admissible in evidence “as facts” or “transactions,” leaving it to

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the discretion of the Courts to attribute to each judgment its due weight. But to my thinking

this liberty of action would be extremely unsafe; and I certainly am not surprised to find

that the Legislature here was unwilling to leave to the subordinate Courts in this country a

discretion, which it has not been thought safe or right to entrust to English Judges”.

Maine Commission

The Law of Evidence was in desperate need of codification. In 1868, a com-

mission was formed to create the Law of Evidence under the chairmanship of Sir Henry

Maine, the then-Law Member. But Maine’s bill was rejected since it did not meet all of the

requirements at the time.

Stephen Commission

The Stephen Commission was established in 1871 to write the Law of Evi-

dence. On March 31, 1871, Stephen delivered the Council a draft of the Bill, which was

then forwarded to the local governments, High Courts, and Advocates for their review.

After receiving their feedback, the Bill was submitted to the Select Committee, which made

the required changes before presenting it to the Council, which enacted it as The Indian

Evidence Act, 1872. (Act No. 1 of 1872). The Act has been amended multiple times since

it was enacted.

The Indian Evidence Act of 1872 is based on English evidence law, but it

includes several provisions adapted to the Indian realities and needs. Even though flaws in

the Act have been pointed out from time to time, the Act’s drafting is an example of the

best draftsmanship skill. It is very important to note that the Law of Evidence, which was

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enacted in 1872, continues to be applicable with the least amendments possible over more

than 140 years.

5.4 Scope of Indian evidence act, 1872

The Indian Evidence Act of 1872 consolidates, defines, and amends the law

of evidence in India. It extends to the whole of India. The Act applies to all judicial pro-

ceedings in or before any Court in India, including Courts-martial (except those convened

under the Army Act, the Naval Discipline Act, or the Indian Navy Discipline Act, 1934,

or the Air Force Act), but not to affidavits presented to any Court or officer, or proceedings

before an arbitrator.

5.5 Relevancy Of Facts in The Act

The second portion of the act is titled ‘the Relevancy of facts’. This section

contains 51 sections starting from Section 5 to Section 55.

1. The relevance of facts that are part of the same transaction (Section 6);

2. Facts that constitute the occasion, cause, or effect of the facts in issue (Section 7);

3. Facts showing motive, preparation, and conduct, previous and subsequent (Section

8);

4. Facts required establishing the facts in issue, etc. (Section 9);

5. Things that are said or done by conspirators in regard to a common design (Section

10);

6. Facts not otherwise relevant (Section 11);

7. Facts that allow the Court to determine damages (Section 12);

8. Facts that establish a right or custom (Section 13);

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9. Facts showing the existence of the state of mind, or of the body or bodily feeling

(Section 14);

10. Facts bearing on the question of whether an act was accidental or intentional (Sec-

tion 15);

11. The facts illustrating the course of business (Section 16);

12. facts that amount to admission (Sections 17 to 23 and 31);

a. Facts which are confessions of the accused persons (Sections 24 to 30);

13. Facts made by people who cannot be called as witnesses in certain circum-

stances (Sections 32 and 33);

14. Facts are statements, under certain circumstances (Sections 34 to 38). When any

statement for which evidence is given is part of a longer statement, a conversation,

or a portion of an isolated document, or is contained in a document that is part of a

book, or is contained in part of an electronic record, or is contained in part of a

connected series of letters or papers, evidence shall be given of only that portion of

the statement, conversation, document, electronic record, book, or series of letters

or papers that the Court considers necessary in that particular case. (Section 39);

15. Judgments of Courts (Sections 40 to 44); It is based on the following two Latin

maxims;

16. Establishes the relevance of third-party opinions, which is usually referred to

in day-to-day activity as an expert’s opinion (Sections 45 to 51);

17. Characteristics of the parties to a lawsuit (Sections 52 to 55).

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5.6 Different Type of Evidence

1. Section 59 states that if evidence of any is to be given, it must be either oral or

documentary.

2. Section 60 requires direct oral evidence.

3. Section 61 specifies that the contents of a document may be proven using either

primary or secondary evidence.

4. Sections 62 to 66 deal with primary and secondary evidence and specify that pri-

mary evidence of documents must be provided before mentioning the cases in

which secondary evidence may be given.

5. Then there are provisions for submitting oral evidence to prove the authenticity of

a document (Sections 67, 67-A, 68, 69, 71, and 72).

6. Sections 73 and 73-A deal with determining the term of a deed. Section 100 forbids

the Chapter from being applied to the provisions of the Indian Succession Act deal-

ing with the drafting of wills.

5.7 Competency, Comparability, Examination And Cross-Examination Of Witnesess

And Impeachment Of Witness Credibility

Chapters IX and X deal with competency, comparability, examination and

cross-examination of witnesses, impeachment of the credit of testimony of the witnesses,

and the use of previous writings of witnesses for refreshing their memory and also using

their previous statements for corroboration of their statement in Court.

A witness is considered competent when there is nothing in the law that

prevents him/her from appearing in Court and presenting evidence. The capacity of a

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witness to understand and respond rationally to the questions posed to him determines

whether or not he is competent.

The competency of those who can testify as witnesses are covered un-

der Sections 118, 119, 120, and 133. A witness may be competent but not compellable,

which means that the Court cannot compel him to testify. A court cannot compel foreign

ambassadors and sovereigns to appear before it to testify. A court cannot compel foreign

ambassadors or sovereigns to attend the court to testify.

A witness may be competent and compellable, but the law may not compel

him to respond to specific questions. Restricted comparability, often known as a privilege,

is the term used to describe this situation. This privilege is addressed in Sections 122–

132. The quantum of evidence is covered in Section 134. The examination, cross-examina-

tion, and re-examination-in-chief of witnesses are covered in Sections 135 to 139. Sections

140 to 153 cover the types of questions that can and cannot be asked during cross-exami-

nation of witnesses.

Evidence contradicting a witness’s cross-examination replies is not allowed

under Section 153. Under Section 154, the Court may, at its discretion, allow the person

who calls a witness to ask him any question that the other party might ask during cross-

examination. Section 155 talks about the impeachment of a witness. Section 158 of the Act

deals with giving evidence to contradict, impeach, or corroborate the credibility of someone

who gave evidence under Sections 32 and 33 of the Act. Sections 159 to 161 allow a wit-

ness to recall his memory by reviewing the previously produced record. Sections

165 and 166 define the scope of the Judges and jury’s rights to examine witnesses.

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5.8 Admissibility of Evidence

There is only one section in Chapter XI, Section 167, which states that there

will be no new trial for the improper admission or rejection of evidence.

The Act is dynamic and has evolved over the years. Three of the most recent

amendments to the statute were the Information Technology Act of 2000, the Criminal Law

(Amendment) Act of 2013, and the Criminal Law (Amendment) Act of 2018.

5.9 List of Amendments

1. The Indian Evidence (Amendment) Act, 1872 (18 of 1872)

2. The Indian Evidence Act, 1872 Amendment Act, 1887 (3 of 1887).

3. The Indian Evidence Act, 1872 Amendment Act, 1891 (3 of 1891)

4. The General Clauses Act, 1897 (10 of 1897).

5. The Indian Evidence Act, 1899 (5 of 1899).

6. The Repealing and Amending Act, 1914 (10 of 1914).

7. The Repealing and Amending Act, 1919 (18 of 1919).

8. The Indian Evidence (Amendment) Act, 1926 (31 of 1926).

9. The Repealing and Amending Act, 1927 (10 of 1927).

10. The Repealing Act, 1927 (12 of 1927).

11. The Amending Act, 1934 (35 of 1934).

12. The Government of India (Adaptation of Indian Laws) Order, 1937

13. The Repealing Act, 1938 (1 of 1938)

14. The Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948.

15. The Repealing and Amending Act, 1949 (40 of 1949).

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16. The Adaptation of Laws Order, 1950.

17. The Part B States (Laws) Act, 1951 (3 of 1951) (w.e.f. 1-4-1951).

18. The Criminal Law (Amendment) Act, 1983 (43 of 1983) (w.e.f. 25-12-1983)

19. The Criminal Law (Second Amendment) Act, 1983 (46 of 1983) (w.e.f. 25-12-

1983).

20. The Terrorist Affected Areas (Special Courts) Act, 1984 (61 of 1984) (w.e.f. 14-7-

1984).

21. The Dowry Prohibition (Amendment) Act, 1986 (43 of 1986) (w.e.f. 19-11-1986)

22. The Information Technology Act, 2000 (21 of 2000) (w.e.f. 17-10-2000),

23. The Indian Evidence (Amendment) Act, 2002 (4 of 2003) (w.e.f. 31-12-2002). -

(This Act was repealed by the Repealing and Amending Act, 2015 (17 of 2015),

(w.e.f. 13-5-2015). The Repeal of this Act shall not affect the validity, invalidity,

effect, or consequences of anything already done or suffered, or any right, title, ob-

ligation, or liability already acquired, accrued or incurred, or any remedy or pro-

ceeding in respect thereof, or any release or discharge of or from any debt, penalty,

obligation, liability, claim or demand or any indemnity already granted, or the proof

of any past act or thing.)

24. The Criminal Law (Amendment) Act, 2005 (2 of 2006) (w.e.f. 16-4-2006 & 5-7-

2006). - (This Act was repealed by the Repealing and Amending (Second) Act, 2015

(19 of 2015 (w.e.f. 14-5-2015). The Repeal of this Act shall not affect the validity,

invalidity, effect, or consequences of anything already done or suffered, or any

right, title. obligation or liability already acquired, accrued or incurred, or any rem-

edy or proceeding in respect thereof, or any release or discharge of or from any debt,

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 penalty, obligation, liability, claim or demand, or any indemnity already granted, or

the proof of any past act or thing)

25. The Information Technology (Amendment) Act, 2008 (10 of 2009) (w.ef 27-10-

2009).

26. The Criminal Law (Amendment) Act, 2013 (13 of 2013) (w.r.e.f. 3-2-2013).

27. The Criminal Law (Amendment) Act, 2018 (22 of 2018) (w.r.e.f. 21-4-2018).

28. The Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019) (w.e.f. 31-10-

2019).

Summary – Here in the chapter – 5 we have studied out the various legal

provisions and law that are available regarding this dissertation.

In the next chapter – 6 we will conclude the conclusion and will see the

some suggestions for this dissertation report topic.

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 CHAPTER – 6

CONCLUSION AND SUGGESTIONS

6.1 Conclusion and Suggestions

While exploring the lacuna revolving around Section 112 of the Indian Ev-

idence Act, it was noticed that the act lays down provisions which would be considered as

conclusive proof when it comes to determining the legitimacy of a child born out of wed-

lock. This provision does not take into consideration things like adultery, DNA tests, etc.

and is based on the concept of morality, focusing on the mother and protection of the child

from being declared a bastard. However, science has developed since, and the only excep-

tion of non-access given under this section is not enough to prove or disprove legitimacy

of a child.

The current legal practice is such that a DNA test is only ordered by a court

if the fact of nonaccess can be sufficiently proved. This practice has evolved through judge-

ment and precedents and the act itself does not mention DNA tests, denial of DNA test

leading to waiving of defense to paternity or further provisions apart from non-access like

adultery. Thereby, there is a need to amend this section of the act to make it operative in

the current times.

Further, on the subject of expert evidence under Section 45, it is important

to note that there are various ambiguities in the Indian Evidence Act. First of all, the Section

does not specify who is an expert, or how will the court ensure that an expert appointed is

actually skilled in the subject area or not. Also, provisions for how the court will ensure

93
that the expert appointed is not biased towards a party is absent from the law. Due to these

reasons, expert opinion is considered as weak evidence in India.

Steps need to be taken in order to lay down the qualification of experts as a

mixture of professional qualifications and practical experience in the field.13 Further, there

is an urgent need for laying down provisions for the protection of expert witnesses. In most

cases, experts are harassed, thereby, it is important to widen the ambit of witness protection

of his self and his family and close friends.

On the subject of the Law Commission report, it is important to note that

the Commission has been given a role of giving recommendations to update the statutes to

the changing social and technological advancements. Thereby, the study that is undertaken

by the Commission needs to be holistic in nature and not a mere review of a previous report.

It has also been observed that for various issues, the opinion of the Supreme Court has been

as it is applied by the Commission in the report. This method should not be undertaken by

the Commission, itshould do its own independent study on the topic to arrive at a conclu-

sion which could or could not be in support of the Supreme Court’s verdict.

Another issue with the Law Commission reports is that its applicability is

not binding, and several recommendations made by the commission go unheard. This par-

ticular report of the Law Commission had an attached annexure which is the Indian Evi-

dence Amendment Bill, 2002. However, the only amendment made was in the Evidence

(Amendment) Act of 2002, wherein Section 146 and Section 155 of the Indian Evidence

Act were amended. Evidence is a very wide and integral area in the Indian Legal system.

It is very important that the laws with respect to evidence are updated from time to time to

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incorporate the changing social and technological advancements. However, there has no

substantial amendment to the Indian Evidence Act 1872, even after various recommenda-

tions. In practice, some of the principles of scientific advancement has been incorporated

by way of judicial precedents, but the same is not corroborated in the legislation governing

evidence in India.

The purpose of the observation and documentation of the crime scene is to

make a note of the location of potential evidence and to mentally prepare and make an

outline of how the crime scene will be examined. The crime scene conditions should be

carefully observed and transient details, such as lighting (on/off), newspaper, on the door/in

- house, curtains (open/closed), weather, temperature, movement of furniture, or other dis-

turbances made in the life - saving efforts, conditions which would support or refute sui-

cide/self - defense (gunshot residue, position of firearm in cases of shooting), etc. should

be recorded.

It is also important to be able to recognize what should be present at a scene

of the crime but is not there, e. g. victim's purse, watch, ornaments, vehicle, etc. Similarly,

the objects which appear to be out of place and might have been left by the perpetrator

should be taken note of. If vehicles are involved in a crime, details of license (identification)

number, the position of the key, gear shift position, meter reading, steering position, amount

of fuel in the tank, lights turned on or off, etc. should be recorded. Use of the oblique light-

ing technique is a good technique to use indoors on hard floors.

This technique only needed a suitable flashlight with a strong concentrated

beam. Use this light just spreads over the floor surface and is almost parallel to the surface.

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The light is then moved back and forth. Any evidence, such as trace evidence and shoe

prints, will appear dramatically which Under normal light conditions, this evidence may be

barely visible or completely invisible. In addition to the floor, the ceiling should also be

extensively inspected. It can get valuable evidence like blood splatter and bullet holes. Pho-

tography and videography may be used for the documentation of crime scene conditions.

It can provide a better perspective on the crime scene layout. Photography and videography

should begin with a general overview of the crime scene and the surrounding area, and it

will cover the crime scene using wide - angle, close - up (long, middle, and close - up range)

shots to show the shape, size, and position of the evidence and its relevance to the crime

scene.

It is the responsibility of the doctor or hospital who examines the Rape vic-

tim to take care and protect the victim and provide medical examination and care without

a police request. Until now, rape survivor examinations have been possible only after re-

ceiving a police requisition. If the survivor reports to the hospital without the FIR, the doc-

tor should review the matter.

The victim’s treatment and examination should not be denied due to lack of

police records. It should not be done if the survivor does not wish to tell the police about

the incident. The unwillingness to inform the police, on the other hand, should be noted.

Only if the victim, parents, or guardians request it, should a medical evalu-

ation be conducted. Neither the court nor the police may compel the survivor to seek med-

ical help.

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 The patient’s consent should be obtained for medical examination and treat-

ment, forensic medical examination and evidence gathering, and contacting the police for

investigation and treatment purposes.

If a male doctor examines a female patient, the examination must be done

in the presence of a female nurse/attendant/etc. The name and signature of the female in

whose presence the examination is conducted must also be collected in such circumstances.

Crime scene investigation is a very important part of any investigation. It is

the meeting point of science, logic and law. Physical evidence includes all objects that may

establish or deny that a crime has been committed or link a crime with its perpetrator or

victim. Forensic science begins at the crime scene. Here, investigators must identify the

evidence for laboratory testing and preserve it properly. The primary duty of the first re-

sponding officer is securing the crime scene.

Once the scene is secured, the relevant investigators record the crime scene

taking photograph, making sketches and taking notes. Before processing the crime scene

for physical evidence, the investigator should conduct a preliminary investigation of the

scene as it was left by the offender. The search for physical evidence in a crime scene must

be thorough and systematic.

Typically the search pattern selected depends on the size of the scene and

the locale and the number of collectors participating in the search. Physical evidence can

be anything from huge objects to microscopic traces. Often, many items of evidence are

clearly visible, but others can only be identified by examination in a crime laboratory. For

this reason, in addition to the more obvious items, it is important to collect potential carriers

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such as clothing, vacuum sweeping, and cutting fingernails. Each different item or similar

item collected in different places must be placed in a separate container. Packaging evi-

dence individually prevents damage through contact and prevents cross - contamination.

At the time of evidence collection, the chain of custody must be maintained a record indi-

cating the location of the evidence.

In addition, proper standard / reference samples, such as hair, a buccal swab,

and fiber, must be collected from appropriate subjects for comparison at the crime scene

and in the laboratory. The removal of any evidence from a person or crime scene must be

carried out in accordance with the appropriate search and seizure protocol. Due to lack of

scientific knowledge of the investigator regarding the proper collection, preservation, stor-

age and transportation of crime scene evidence, failure to obtain appropriate analysis results

and diminish its value before the court of law. Many factors contribute to the generation of

a good report from a biological sample i.e. rate and extent of degradation, purity and amount

of the sample, etc.

“No biological evidence is resistant to degradation”. Thus, careful collection

and packing of crime scene evidence can provide useful information. Hence, proper pre-

caution for collection and preservation of crime scene evidence is essential. Hope, this re-

view will help to forensic, and law enforcement professionals to deal with crime scene

evidence to avoiding contamination, degradation, and loss of the value of biological evi-

dence.

In spite of the increased attention paid to forensic evidence over the past

decade, there is little published empirical data identifying the types of evidence routinely

98
collected, and the extent to which this evidence is submitted to and examined in forensic

crime laboratories. There is even less research that describes the role and impact of such

evidence on criminal justice outcomes.

While the current study shows that forensic evidence can affect case pro-

cessing decisions, it is not uniform across all crimes and all evidence types; the effects of

evidence vary depending upon criminal offense, variety of forensic evidence, the criminal

decision level, and other characteristics of the case. The current study attempted to fill this

gap in knowledge by examining the role and impact of forensic evidence on five felony

crimes across five jurisdictions. Given the varied nature of the criminal offenses, as well as

contextual differences across study sites, the project reached the following conclusions:

1. The study data revealed that the collection of forensic evidence from crime scenes

(and victims) was very extensive in homicides and, to a lesser extent, rapes; it was

much more limited for assault, burglary and robbery offenses.

2. With the exception of homicides (89%), few of the reported crime incidents had

forensic evidence that was submitted to crime laboratories. While the rate of sub-

mission of evidence for rape was 32%, submission rates in assaults, burglaries and

robberies were under 15% of reported offenses.

3. With the exception of homicides (81%), the overall percent of reported crime inci-

dents that had physical evidence examined in crime labs was low. Less than 20%

of rape cases and less than 10% of assault, burglary and robbery incidents had lab

examined evidence. Of evidence submitted to labs, however, rates of examination,

with the exception of rape cases (58%), exceeded 70%. Consequently, it is clear

that criminal justice officials external to the laboratory screen much of the forensic

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 evidence and have a major influence on evidence examination priorities and prac-

tices.

4. The most frequently collected, submitted and examined forms of evidence were

fingerprints, firearms and biological (blood and semen). For the sites included in

this study and for the time period reviewed, DNA testing was rarely performed

across all offenses and was concentrated in homicides and, to a lesser extent, rapes.

5. Although rates of arrest and conviction in study sites were low, the study rates were

quite similar to national arrest and conviction data.

6. The contrasts between rates of arrest, prosecutor referral, charging and conviction

for the crimes of aggravated assault, burglary, and robbery with and without phys-

ical evidencecollected were all substantial and statistically significant. For the crime

of rape, differences were significant for all decision levels except for prosecutor

referral.

7. At the logistic regression level, crime scene evidence was a consistent predictor of

arrest across all crimes, but a very low percentage of arrests actually had physical

evidence examined before the arrest. The exact role played by forensic evidence at

investigation and prosecution levels is complex and dependent upon many factors.

8. Post-arrest, the predictive power of forensic evidence varied by crime type and

criminal justice outcome. Lab examined evidence was a significant predictor of case

charges for aggravated assault and rape. Forensic evidence also was associated with

sentence length for assault and homicide. None of the measures of forensic evi-

dence, however, were significant predictors of case conviction regardless of crime.

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 In all, few independent variables successfully predicted trial/plea outcome largely

due to the very high rate in which charged cases resulted in conviction.

9. While collected forensic evidence was a consistent predictor of arrest across all of-

fense types, the other consistent predictors of criminal justice outcomes were typi-

cally non-forensic, legal and situational variables: victim and witness reports, vic-

tim/suspect relationships, victim medical treatment, and arrest methods.

10. Very few reported crime incidents had forensic evidence that linked a suspect to the

crime scene and/or victim (~2% of all cases, 6% of cases with crime scene evidence,

and 12% of cases with examined evidence.) In terms of examined evidence, how-

ever, those percentages elevate to x% and y%. However, the conviction rate for the

cases with linking forensic evidence was significantly higher than cases without

such evidence. Furthermore, conviction rates were higher for offenses with two or

more forms of individualizing evidence that associated offenders with crime scenes.

The study results were consistent with previous research. Peterson et al.

(1987) compared felony case filings from six jurisdictions through a random sampling from

three calendar years (1975, 1978 and 1981) in order to assess the rates at which forensic

evidence was used and its impact on case outcomes. Similar to the current results, their data

indicated that forensic evidence had a significant effect on the clearance rates of assaults,

burglaries and robberies. On the other hand, prosecutors preferred the testimony of police

investigators and eyewitnesses when making decisions to charge, in part, because labora-

tory results were unavailable at the time of charging. This was particularly true in sexual

assault cases. Where the accused does not deny sexual contact with the victim, the signifi-

cance of the forensic evidence was largely moot. Prosecutors perceived the value of

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forensic evidence in acquaintance rape cases to be primarily corroborative of other evi-

dence, and seldom was forensic evidence alone sufficient to convict. However, in cases

with a child victim and situations where either the defendant denies having sexual inter-

course with the victim or the victim’s identification of her assailant is questionable, the

laboratory results may be critically important.

The current study findings also replicated Peterson et al.’s (1987) results

regarding plea bargaining and sentence length. In both studies, sentences tended to be more

severe for trialconvictions than for conviction through plea bargain. Unlike the Peterson et

al. findings, however, forensic evidence was not predictive of plea agreements, nor was it

associated consistently with sentence length (forensic evidence variables were significant

in assault and homicide sentencing models).

In addition, the results confirm the findings of earlier aggregate research

(Pare et al., 2007) that the types of crimes that occur in a community affect crime clearance.

Consistent with previous research, the study found that property crimes (burglary) were

more difficult to clear than violent crimes. Gottfredson and Hindelang (1979) believed that

the response of the legal system, including the police, is affected by seriousness of offense.

Police put more investigative effort into more serious offenses. Thus, violent crimes should

be more likely to be cleared than property crimes and incidents with an injured victim

should be more likely to be cleared than incidents with an uninjured victim. Supporting the

argument that more serious incidents are more likely to be cleared (Gottfredson & Hin-

delang, 1979), crime incidents having an injured victim, had greater odds of clearance.

Also, consistent with previous findings (D'Alessio & Stolzenberg, 2003; Eitle et al., 2005),

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odds of clearance in all five study crimes in the present study were much higher when the

offender was known to the victim (especially if an intimate or family member) than when

the offender was a stranger.

Finally, the findings support Strom & Hickman’s (2010) conclusions re-

garding the processing of forensic evidence. In their study, Strom and Hickman (2010)

identify the number and distributions of unsolved homicides (14%), rape cases (18%), and

property crimes (23%) in which forensic evidence was not submitted to the crime labora-

tories for analysis. The study makes the vital point that there are two kinds of backlog in

forensic science. First, evidence submitted to crime laboratories might not be processed

promptly, which creates a risk of ‘justice delayed’. Second, law-enforcement agencies do

not always submit forensic evidence from unsolved cases for testing, which creates a risk

of ‘justice denied’. The results of the present study not only support Strom & Hickman’s

findings but, in fact, paint a more worrisome picture of the underutilization of forensic

evidence. Forensic evidence not only goes unexamined in unsolved cases, but in the vast

majority of all assault, burglary, rape, and robbery incidents. Only a small fraction of avail-

able forensic evidence present at scenes of serious crime is submitted to forensic crime

laboratories and undergoes examination.

A number of reasons have been established as to why evidence might not be

submitted to crime labs. Law enforcement might not submit evidence if an investigator

questions if a crime has, in fact, occurred and/or if the investigator questions if the case

merits full investigation. Investigators may also not submit evidence if a suspect had not

been identified, if the investigator believes the case will not be charged by a prosecutor,

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and because of delays in receiving laboratory results because of long turn around tines.

Equally important, even if evidence is submitted, in many cases, the evidence is not ana-

lyzed. Data from the present study illustrate, that to a large extent, the decisions to analyze

submitted evidence are directly and indirectly affected by a prosecutors’ assessments of the

case. Implicit prosecutor approval is often needed for investigators to request a laboratory

analysis and to avoid what otherwise would be viewed as an unnecessary use of laboratory

resources. Investigators and prosecutors perceive laboratory resources as precious com-

modities that are not to be requested or consumed casually.

Studies of the charging process demonstrate that prosecutors exercise their

discretion and reject a significant percentage of cases at screening (Frazier and Haney 1996;

Spears and Spohn 1997). This research also indicates that case rejections are motivated

primarily by prosecutors’ attempts to “avoid uncertainty” (Albonetti 1987) by filing

charges in cases where the odds of conviction are good and rejecting charges in cases where

conviction is unlikely. These studies suggest that prosecutors’ assessments of convictability

are based primarily, although not exclusively, upon legal factors such as the seriousness of

the offense (Albonetti 1987; Jacoby, et al. 1982; Rauma 1984; Schmidt and Steury 1989),

the strength of evidence (including forensic) in the case (Albonetti 1987; Jacoby, et al.

1982; Nagel and Hagan 1983), and the culpability of the defendant (Albonetti 1987;

Schmidt and Steury 1989; Swiggert and Farrell 1976). Several studies conclude that pros-

ecutors’ assessments of convictability, and thus their charging decisions, also reflect the

influence of suspect and victim characteristics. In deciding whether to go forward with a

case, in other words, prosecutors attempt to predict how the background, behavior, and

motivation of the suspect and victim will be interpreted and evaluated by other decision

104
makers, and especially by potential jurors. As Frohmann (1997:535) notes, “concern with

convictability creates a ‘downstream orientation’ in prosecutorial decision making, that is,

an anticipation and consideration of how others (i.e., jury and defense) will interpret and

respond to a case.”

While forensic laboratories included in the current study did not analyze

biological evidence and stains on a consistent basis, Appendix A shows that their use of

DNA testing in such cases has grown substantially since 2003. While DNA testing proce-

dures has the potential to individualize evidence and to link offenders to crime scenes and

victims (Beaver, 2010), the present study has shown that even cases with strong forensic

evidence are subject to investigator and prosecutor screening that assess the credibility of

the victim and are amenable to defenses, including consent, that render DNA evidence less

dispositive. It may be that stranger property offenses and those where ‘touch DNA’ is pre-

sent, may constitute the offense category where DNA will have its major impact in the

future.

The views expressed in the Forensic Evidence Processing section of the

May 2010 issue of Criminology and Public Policy (Vol. 9, Issue 2) raise some excellent

questions that should be reviewed critically by the forensic field. Brief articles addressing

unanalyzed evidence (Strom and Hickman, 2010), the independence of crime laboratories

(Cowan and Koppl, 2010), and the benefits, imitations and ethical concerns of the searching

of DNA databases (Beaver, 2010; Roth, 2010). Increased resources devoted to DNA anal-

ysis and database searching can certainly yield important results, but the costs and benefits

to the criminal justice process must be assessed carefully. Research may show that the

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discriminating and individualizing power of DNA evidence has its greatest impact on prop-

erty crimes and those offenses with high percentages of stranger offenders. Personal crimes

of violence and particularly those committed between acquaintances, intimates and family

members should be carefully evaluated prior to forensic analysis, because in those offenses

DNA individualizing evidence may have limited benefits.

Given the recent economic downturn and the scarcity of resources in the

criminal justice system, it is possible that DNA-based cases will displace non-DNA based

cases, rather than leading to a dramatic increase in total forensic cases. After all, the crim-

inal justice system has a limited number of police, prosecutors, courtrooms and prisons.

Given that prosecutors inevitably develop a bias toward DNA-based evidence in allocating

resources. Thus, prosecutors faced with limited resources will logically prefer those cases

in which proof of scientific certainty is readily available, caompared to those that rely only

on victim and witness statements. If so, then the typical prosecutor's docket will likely con-

tain a percentage of DNA-based cases disproportionate to the percentage of such cases in

the pool at large. In order to achieve such projections, DNA testing must also maintain its

current ‘gold standard’ reputation as the most reliable form of forensic testing. There may

also be a reshuffling of resources devoted to forensic analysis away from the forensic test-

ing of evidence in cases where consent becomes the primary issue of legal dispute.

6.2 Suggestions

1. The filtering of evidence, from collection at the crime scene to ultimate usage by

investigators and prosecutors, requires additional study. The tracking of evidence

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 utilization in various offense categories should expose factors that shape decisions

to collect evidence, submit it to laboratories, and to request examination.

2. A major finding of the study was that most evidence goes unexamined, but its pres-

ence in cases was associated with arrest and movement of cases through the justice

process. Added studies are needed to review how unexamined forensic and tangible

evidence teams with other conventional investigative procedures to lead to arrests.

3. Cost studies, much like that completed by Roman et al., 2008, are needed to esti-

mate the costs of various forensic analytical procedures applied to types of physical

evidence. Such cost data must be linked to studies that determine the value of fo-

rensic investigations; together, they will constitute a more comprehensive view of

such evidence.

4. Improved crime laboratory information management systems (LIMS) that assess

the cost and impact of forensic evidence analysis need to be developed, imple-

mented and adopted by crime laboratories around the nation. Such systems will

enable the collection of research data on a routine basis of the type described in this

study.

5. The present study’s finding that two or more forms of individualizing/linking fo-

rensic evidence in cases lead to higher rates of conviction should be investigated in

additional studies.

6. Alternative systems for evaluating and prioritizing forensic evidence upon its sub-

mission to forensic crime laboratories need evaluation. Priority systems must be

anchored inempirical data that have tracked the types of forensic evidence that

107
 provide most useful information to investigators and prosecutors in various offense

categories.

7. Sexual assault kit backlogs are a serious and pressing problem in many forensic

crime laboratories around the nation. Added studies are needed that investigate the

reasons for such backlogs, as well as research examining the role examined forensic

evidence plays in sexual assault investigations and criteria for assigning priorities

to collected evidence.

8. Research studying the submission of biological evidence and forensic DNA analy-

sis in property and personal crimes is needed. The cost and benefits of forensic

DNA testing, including inquiries of CODIS database systems, need evaluation for

property as well as personal offenses.

9. Additional studies of the role and impact of forensic evidence at the level of adju-

dication are also needed. The role of the prosecutor in shaping forensic testing pol-

icies needs investigation. In particular, the impact of forensic evidence in prosecu-

tors’ decisions to take cases to trial vs. offering pleas needs review, as well as the

role played by forensic evidence in negotiating pleas and offering charge/sentence

bargains.

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 BIBLIOGRAPHY

Websites

1. www.google.com

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8. www.cdc.gov/violenceprevention/pdf/evidence_project_overview2013-a.pdf

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evidence-act-1872/16139/

14. www.ijalr.in/2020/10/historical-perspective-of-evidence-law.html

15. www.law.yale.edu/sites/default/files/documents/pdf/Faculty/Langbein_Histori-

cal_Foundations_of_Law_of_Evidence.pdf

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Journals

1. "Select Essays in Anglo-American Legal History, vol. 2 | Online Library of Lib-

erty". oll.libertyfund.org. Archived from the original on 2021-05-08. Re-

trieved 2021-05-08.

2. Langbein, John (1996-01-01). "The Historical Foundations of the Law of Evidence:

A View from the Ryder Sources". Faculty Scholarship Series. Archived from the

original on 2020-09-19. Retrieved 2021-05-08

3. Friedman, Lawrence M. (2019). A History of American Law (4th ed.). Oxford: Ox-

ford University Press. p. 382. ISBN 9780190070885. Archived from the original on

2021-03-08. Retrieved 2020-05-31.

4. See, for example, Frederick Schauer, "On the Supposed Jury-Dependence of Evi-

dence Law," vol. 155 University of Pennsylvania Law Review pp. 165-202 (No-

vember 2006). See also 1 John Henry Wigmore, Evidence in Trials at Common Law

Section 4d.1 (P. Tillers. rev. 1983) and P. Tillers, "Rules of Evidence in Nonjury

Trials" (Nov. 7 2006) at http://tillerstillers.blogspot.com/search?

5. Gage, Logan Paul (2014). "1. Introduction: Two Rival Conceptions of Evi-

dence". Objectivity and Subjectivity in Epistemology: A Defense of the Phenome-

nal Conception of Evidence (PhD Thesis). Baylor University.

Books

1. Law of Evidence by S C Sarkar

2. The Indian Evidence Act by Dr. V Nageswara Rao

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