Study Material for the Law of Evidence Law Teaching Course Winter 2011

Prepared by - Nishant Gokhale I.D. No. 206008

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Table of Contents

Study Material for the Law of Evidence .....................................................................1 Law Teaching Course ................................................................................................. 1 Winter 2011................................................................................................................ 1 Table of Contents....................................................................................................... 2 Part I: Shaking the Dust off the Law of Evidence........................................................4 Who needs to know evidence law?..........................................................................4 Why is it important?................................................................................................ 4 Introducing the Indian Evidence Act, 1872..............................................................5 Part II: Some Basic Concepts...................................................................................... 7 Part III: Case Summaries........................................................................................... 19 Legal Burden of Proof............................................................................................ 19 Evidentiary Burden of Proof................................................................................... 20 Hermes v. Hinkson............................................................................................. 21 Burden of Proof and Proving General Exceptions..................................................23 Musammat Anandi v. Emperor...........................................................................24 Bhupendrasinh A. Chudasama v. State of Gujarat.............................................26 Facts Especially within Knowledge........................................................................27 Shambu Nath Mehra v. The State of Ajmer........................................................28 Emperor v. Santa Singh S/o Mula Singh.............................................................30 State of West Bengal v. Mir Mohammed @ Omar...............................................32 Presumption of Life and Presumption of Death.....................................................34 K.S. Agha Mir Ahmad Shah and Anr. v. Mir Mudassir Shah and Ors....................35 Communications During Marriage.........................................................................36 Ram Bharosey v. State of U.P.............................................................................37 Official Communications........................................................................................ 38 2

The State of Punjab v. Sodhi Sukhdev Singh......................................................39 S.P. Gupta v. Union of India................................................................................41 Communication with Legal Practitioners...............................................................42 Ayesha Bi v. Peerkhan........................................................................................ 45 In Re: An Attorney.............................................................................................. 46 Municipal Corporation of Greater Bombay v. Vijay Metal Works........................49

Part I: Shaking the Dust off the Law of Evidence

Who needs to know evidence law?
While it is often considered to be a lawyers law, it is relevant to non-lawyers as well. While it is true that lawyers, especially at the trial stage, need to have a very deep understanding of the law of evidence, it is necessary for all the persons who come into contact with the judicialsystem (almost everyone!) to know the basic principles of the law of evidence. The objective of this course is not to teach you how to marshal facts and present them before a court, but rather to give you a basic understanding of the law of evidence which would help you in any walk of life that you choose after your law degree, be it as a trial court lawyer in a murder trial, in a law-firm to show when crucial shareholders agreements have been signed, in an NGO to prove a human rights violation by the state, perhaps even as a fashion designer to show that designs sold by someone else are originally yours, or even as an ordinary citizen about the extent of your property to determine if someone has encroached on your land.

Why is it important?
The law of evidence is a very significant area as it determines what the law sees. The courts have constrains on resources, storage space, personnel so it cannot go and look at the facts surrounding every allegation which comes up before it. It would be unreasonable, if not impossible, for the court to seek everything in physical form.1 However, it is important to ensure that idle claims are not made but are backed by some sort of evidence or proof.

There was a case around the 1870s where a tribal group carted huge boulders to the court in Calcutta to show that these are the grave-markers of their ancestors, to prevent the land from being acquired by the British. Considering they could not be brought into the courtroom, the court rejected these boulders as being a part of the law of evidence.

While some laws have the benefit of having lists or schedules of things which are too numerous or voluminous to put in a section of the law, the breadth covered by the law of evidence is so vast, right from the state of a murders mind to government survey maps, that it is almost impossible to list all of them out. Therefore, abstract principles need to be evolved to ensure that all of these things are covered by the law of evidence so that it comes to the notice of the courts. However, at the same time, it is necessary to ensure that the courts are not burdened with more material than is necessary and therefore, the law has created specific gateways. Therefore, it is necessary to ensure that everything you want the court to see and weigh must pass through these specific gateways. (Sections on Relevancy determine what the court can consider or see) The law of evidence creates conceptual categories and be based upon principles. Therefore, in order to properly understand the law of evidence, it is important that these abstractions be given a concrete form in order to be simply understood. Therefore, it would be advisable to go through the illustrations which accompany the sections as each important section is explained in this material. Thus the law of evidence is an adjective law which highlights, like adjectives do in the English language, the importance of certain issues before the court.

Introducing the Indian Evidence Act, 1872

Before looking into the provisions of the Act, it shall be helpful to look into the nature of Act. The Preamble of the Indian Evidence Act, 1872 states that this act is a consolidating and defining statute.2 A consolidating statute by its very nature does not create new law. In however recognises and incorporates the law as it has evolved which includes various principles and concepts. Therefore,

By virtue of the fact that the words are used in the Preamble, and not a part of the act means that they can be used only when there is some ambiguity in the wording of the Act, as an aid to interpretation.

it is important while studying the law of evidence to look beyond merely the provisions but also to understand the principles which have been recognised by the act. It is a defining act in the sense that it has assigned a definite meaning to certain terms and used them so as to give a precise meaning to abstract concepts. Some of these definitions shall be dealt with subsequently.

The Act is said to be scientifically structured and has been one of the least amended statutes since its enactment in 1872. The Act is an adjective law which provides the procedure for accepting or rejecting evidence. The Act lays down the law with respect to: 1. Admissible and inadmissible evidence

2. Value of/ Weightage given to evidence

The Indian Evidence Act is divided into 3 parts and its structure is important to understand in order to appreciate it. Part I- Relevancy of Facts Part II- On Proof (How to use) Part III- Production & Effect of Evidence (How to Produce Evidence and its implications)

These parts shall be dealt with subsequently, but it is important to know in which Part of the Act a particular provision lies in so as to understand its full import in the law of evidence.

Part II: Some Basic Concepts

The Preliminary portion of the Evidence Act lays down the area in which the Act shall apply along with to which matters it shall apply as well as defining certain terms. Section 1. This act extends to the whole of India except Jammu & Kashmir. This Act applies to:
All judicial proceedings in or before any Court3

The provisions of the Act do not apply to: Affidavits presented to any Court or Officer. Proceedings before an arbitrator.

Section 3.-

Interpretation clause:

Fact is divided into two kinds and it means and includes: Physical Facts: Any thing or, state of things or, relation of things, which are capable of being perceived by the senses;

Psychological Facts: Any mental condition of which any person is conscious.

Including Court Martial proceedings as specified in the Act.

Eg.- A psychologist deposing before a court would constitute both physical as well as psychological fact. The fact that he is deposing is a physical fact whereas the subject matter of his deposition which is the state of mind of a person is a psychological fact.

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

Facts in issue means and includes Any fact from which,

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

Under the law for Civil Procedure in force, when a court records any issue of fact, the fact that is to be asserted or denied in answer to such issue is a fact-in-issue. These definitions can be explained thought the use of a simple diagram: Facts-in-issue- Principle facts (These are the facts in question) Relevant Facts-Other facts required to prove or disprove facts in issue.

Facts Relevant Facts Facts- In- Issue

The issue of facts-in-issue and relevant facts is of great importance because, as per section 5 of the Act, for a a fact to be admitted as evidence, it has to be a fact-in issue or a relevant fact as declared under sections 6 to 55 of the Act. Only such facts are admissible in the court as evidence. This is however, in distinction with the law as it exists in the United States. There, any facts, unless prohibited by law will be admissible. Further, some facts although relevant are specifically excluded from being admissible as evidence. Examples of these are privileged communication between a lawyer and a client, between husband and wife etc. In India therefore: Relevant facts (LESS) Excluded by Indian Evidence Act = Admissible Evidence

Relevant facts- Facts specifically excluded by the Act = Admissible Evidence 9

 Document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used or which may be used for the purpose of recording that matter.

Evidence in a non-exhaustive definition4 is divided into two categories under the Act to mean and include: Oral Evidence: All statements, which the court permits or requires to be made before it by witness, in relation to matters of fact under inquiry;

Documentary Evidence: All documents including electronic record produced for the inspection of the court;

The terms proved, disproved and not proved have assumed special significance in the Evidence Act and have therefore to be used very carefully.

Other types of evidence are hearsay, circumstantial, real, primary & secondary documentary, direct evidence.

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Eg.- In a criminal trial, an accused shall be acquitted when a charge leveled against him is not proved and there is no need to disprove such charge in order to secure acquittal of the accused. Therefore, these terms have a meaning different from that in common parlance. The definitions of the words proved and disproved give rise to two concepts which are vital for the purposes of understanding the law of evidence. These concepts shall be dealt with after discussing the definitions of the terms as laid down in the Act. Proved: A fact is said to be proved when, after considering the matters before it5,

the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

Disproved: A fact is said to be disproved when, after considering the matters before it,

the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

Gives a scope for the appreciation of evidence and brings within its ambit real evidence.

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 Not proved: A fact is said to be not proved when it is

Neither: proved nor disproved.

These definitions import two important concepts. Firstly, the definition does not use the term evidence before the court but rather, matters before the court. The drafters have preferred to use the term matters before the court. This therefore, gives the scope for introduction of some non-evidentiary matters. Therefore, the matters before the court may be classified as follows:

Whereas the Evidence Act under the meaning of the word Evidence covers only oral and documentary evidence, other matters (non-evidentiary) which may be relevant for the Court to consider may be taken into consideration by the Court in order to enable a fact to be proved or disproved or not proved if they are neither proved nor disproved.

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The second concept which is imported into the Act by virtue of the definitions, is the standard of proof. For a fact to be proved, it should be such that a prudent man should act as on the supposition that it exists. For a fact to be disproved, it should be such that a prudent man should act on the supposition as if that fact did not exist. The Standard of Proof as laid down in the Act, is that on consideration of the facts in a similar case, a prudent man would reach the same conclusion. This is different from the notion of Burden of Proof (youll know this if you paid attention in my classes!) Therefore, if these conditions are satisfied, then the Court believes such a fact to be proved or disproved as the case may be. However, this has given the judiciary the scope to interpret the statute in such a way in order to create different standards of proof for different circumstances. The Court have evolved two distinct standards for civil and criminal cases. For civil cases, what is required that the fact is proved on a Balance/Preponderance of probabilities. In criminal cases, for the prosecution, however, the standard of proof is higher and a fact to be considered proved, it must be proved Beyond reasonable doubt. The standard of proof here for defending a criminal case, so as to show that the charges against the accused are not made out or disproved, the standard of proof is balance/ preponderance of probabilities. In criminal cases, the standard of proof for the prosecution is higher because, it is generally a stronger body (State) against an individual. Also, in criminal cases, a finding of guilty would result in a curtailment of liberty or other punitive actions.

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Further, in criminal law, the standard of proof for the prosecution is higher than the standard of proof for the defence because it is in conformity with the maxim that it is better to let a hundred guilty men go free than to sentence an innocent man wrongly. In civil matters, however, it is generally in relation to settlement of disputes between private parties and therefore, is of a somewhat less grave nature than criminal proceedings.

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Presumptions

The Evidence Act, uses the concept of presumption in order to seal the gap which may exist in the facts on record in a particular case. Therefore, presumptions may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts. Therefore, presumptions have no place when actual facts are disclosed before the court.

Presumptions are used so as to save the time of the court. When a fact is presumed to be true, the court need not spend its time in determining its veracity. It may however, disbelieve the fact if evidence is adduced in order to disprove it.

Section 4 of the Act classifies presumptions into three categories, namely, May presume, shall presume and conclusive proof. May presume: (Natural Presumption, Presumption of Fact, Rebuttable) Whenever it is provided by this Act that the Court may presume a fact,

it may either: regard such fact as proved, unless and until it is disproved, or may call for proof of it.

The court may presume a fact to be proved, unless it is disproved, or the court may not presume it to be proved and may call for evidence to prove it.
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Provisions of the Act which use the words may presume: S.86- Certified copies of foreign judgments may be presumed by the court to be genuine. S.87- Map published by any private agencies may be presumed to be correct which is open to public scrutiny.

S.88- Telegraphic message, fax etc. S.88A- Electronic Messages S.90- Documents which are 30 years old and in proper custody may be presumed to be genuine.

Section 114 is a very significant principle as it lays down rules of prudence which the court may use. They do not represent rules of law, but rather of prudence which are based upon caution and good sense. This section shall be discussed subsequently along with sections 30 and 133.

Shall presume: (Artificial Presumption, Presumption of Law, Rebuttable) Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. been adduced to disprove it. This is sometimes called a compelling presumption The following sections in the Act use the term shall presume. Although it is not necessary to remember all the section numbers, it is important to understand that the court shall presume in cases where the impugned act is within the public sphere. S 80- presumption as to documents produced/record of evidence. S.81 presumption as to the gazettes, newspaper, private acts of parliament and other documents. S-81A- presumption as to the gazettes in electronic form.
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The court must draw an inference unless the fact is disproved by evidence which has

S 82- presumption as to document admissible in England without proof of seal/signature S 83 presumption of maps/documents made by the Government made before the court. S 84- presumption as to collection of laws and reports of decisions. S 85- presumption as to the power of attorney. S. 85A- presumption as to the electronic agreements S 85 B- presumption as to the electronic records and digital signatures. S 85 C- presumption as to the digital signatures. S 89- presumption as to the due execution of document when not produced.

Conclusive proof: (Artificial Presumption, Presumption of Law, Irrebuttable) When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. cannot allow a rebuttal or any evidence to the contrary. It is an

The Court

established fact. What is open to attack, however, is the facts upon which the conclusive presumption is based upon. The Sections of the Act which deal with conclusive proof are: S.41 A judgment in a case of matrimonial, insolvency, admiralty, probate jurisdiction is conclusive proof of the fact that the person has acquired that legal character or status. S 112- Birth during marriage, conclusive proof of legitimacy. Here, there is a presumption in favour of the legitimacy of the child so as to prevent bastardisation of the child for no fault of its own.

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S 113 Proof of cessation of territory.

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Part III: Case Summaries

Legal Burden of Proof

101.

Burden of proof: - Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Illustrations
(a) A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. (b) A desires a court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.

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Evidentiary Burden of Proof

102.

On whom burden of proof lies: - The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, Bs father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A. (b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B.

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Hermes v. Hinkson
AIR 1946 PC 156 Georges Hermes was a Greek immigrant to the US at age 14. Due to limited access to formal education, he did odd-jobs but displayed great business acumen. He moved to Canada and started his own confectionary and flower shop and some years later, he started his own hotel. He did quite well at this and held a small fortune. He did not marry nor have any children. He had a sister in Greece and a nephew who helped him run the business in Canada. A disease of the urinary bladder was detected and this caused mental dullness and retardation and irritability (not mental illness). Following this, he was admitted to hospital. Mr. Hinkson was a friend of Mr. Hermes for more than 10 years and was a lawyer by profession. While he did not ever represent Mr. Hermes professionally, he was very good friends with him and they were part of the same club and frequently visited each others houses. His visits to Mr. Hermes in hospital became more frequent when the doctor told him that the state of his health was precarious. It was alleged that when Mr. Hermes was in hospital, Mrs. Hinkson went to meet him with a cheque she had prepared for building the house for the Hinkson children. All that was required to be done was for Mr. Hermes to put his signature. This allegedly angered Mr. Hermes as he thought that there was an attempt being made to take advantage of a dying man. With some harsh words, he sent Mrs. Hinkson away. However, this incident is disputed and the court did not rely on it greatly due to lack of evidence. The bank with which Mr. Hermes maintained his accounts asked him to get his financial affairs in order in light of his medical condition. On hearing this, Mr. Hinkson told the doctor that he was a lawyer and had been Mr. Hermess friend for many years. When asked by him, the doctor stated that Mr. Hermes was in a position to discuss affairs relating to his will. Almost immediately, Mr. Hinkson purchased the will forms. He sat in Mr. Hermess hospital room with 2 nurses on call, but out of sight or earshot to discuss how the property was to be apportioned in the will. They discussed in great detail as to what is to be done with the property and a fund was set up for promoting study of the Greek language in the local University, some money was given to a local orphanage. When Mr. Hinkson asked about leaving property to Mr. Hermess sister, he responded stating that she is well settled and her husband takes good care of her. Therefore, he left her nothing. When asked about his nephew, he was initially reluctant to leave him anything. However on Mr. Hinksons insistence, he left him a small amount (2,000 dollars out of a total of approximately 60,000) stating that he does not know the ways of the world and does not know the value of money.

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After this, there was a substantial balance left. When Mr. Hinkson asked him what to do with it, Mr. Hermes told him, You have been a good friend. You keep it. On hearing this Mr. Hinkson asked him to reconsider it, but he remained insistent. Mr. Hinkson left the room to find out what the estate duty for the will would be. He told Mr. Hermes to reconsider and contemplate his decisions in the meanwhile. He said that it would be possible to get another will form and get a fresh will form. When he came back, he asked Mr. Hermes if he would like to prepare the will the next day, to which Mr. Hermes refused and said that he needed to finish it on the same day. On hearing this, Mr. Hinkson asked the two nurses to come into the room and act as witnesses. The attestation of the will was validly done and Mr. Hermes signed the will. The will was placed under the pillow of Mr. Hermes and thereafter in a drawer near the bed. The following afternoon, the doctor informed Mr. Hinkson that Mr. Hermess condition was deteriorating. He came to the hospital and took the will with him. On that night, Mr. Hermes died. Soon thereafter, Mr. Hinkson put the will for execution and Mr. Hermess nephew challenged its validity. The court had to determine whether this was a case of undue influence by the lawyer or whether it was a genuine bequest. The court relied upon two tests laid down in previous decisions. Firstly, that one who proposes the will must show that it is the final will and testament of the maker of the will. This means, that the burden of proof under s. 101 would lie on Mr. Hinkson in that case. Secondly, that the court must be suspicious of wills when the drawer of the will is the prime beneficiary. In this case, Mr. Hinkson was the person who drew the will as well as the one who was the greatest beneficiary from it. Questions of undue influence which were raised by the nephew of Mr. Hermes would have to be proven by the nephew under s. 102. The Court held that the burden of proof under s. 101 (legal burden) always lies on the party wanting the court to pass a judgment in its favour. This burden never shifts. It was held that Mr. Hinkson discharged his burden of proof under s. 101 and stated his case well. The burden of proof mentioned under s. 102 however was a factual burden which may shift from time to time during the case. The nephew failed to show undue influence under s. 102. Therefore, there was no reason for the court to believe in the existence of undue influence as inadequate evidence was led to the court to make it believe that Mr. Hinkson should answer this allegation. Therefore, it ruled in favour of Mr. Hinkson. However, considering the actions of Mr. Hinkson, the court held that he had not acted as responsibly as a lawyer should have. He should have had atleast another person present in the room, preferably a doctor, when he was declared to be a beneficiary in the will. Therefore, the costs of the case were to be paid from the estate of Mr. Hermes, meaning thereby that Mr. Hinkson would be liable to may most of it.

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Burden of Proof and Proving General Exceptions

105. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of 1860) or within any special exception of proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances. Illustrations (a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A. (b) A accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control; The burden of proof is on A. (c) Section 325 of the Indian Penal Code (45 of 1860) provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 325. The burden of proving the circumstances bringing the case under section 335 lies on A.

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Musammat Anandi v. Emperor

AIR 1923 All 327 In this case, a woman was accused of killing a child in a house when the other men and women of the house were outside. When the other residents of the house returned, they found that the door of the house had been closed and locked by a chain from inside and it was opened by the accused to find the child, who was alone in the house with the accused was found dead with its throat slit and blood on and about the cot on which it was sleeping. The body of the child was found in the same room in which the accused was also supposed to be. The accused tried to run out of the house and was apprehended and tied up before being handed over to the police. The Civil Surgeon certified that she was insane and therefore could not stand trial. Subsequently she was certified as being sane and therefore, was competent to stand trial. The question was whether the accused who had undoubtedly killed the child would be entitled to claim the benefit of unsoundness of mind under s. 84 of the IPC. The evidence on record given by experts was that the accused was not in her senses for atleast a year around the time the incident occurred. There is evidence that her father and some evidence that her grand-father had been at one time or another insane. There is also evidence that before the murder she occasionally went out of her mind. In other words, it is proved that she was subject to occasional fits of insanity. The trial court judge came to the conclusion that the onus of proving that the accused was insane was on the accused and that she failed to do this. An adverse inference was drawn from the circumstance that after killing the child she closed the main door of the house, that she then changed the shirt which she had been wearing when she killed the child and washed it in an attempt to remove blood stains and when discovered she attempted to run out of the house in order to throw herself into a well. The High Court however, held that these actions were at the most a half-witted attempt at concealment while all the time the body of the child was lying in the room with its throat cut for anyone to see who entered. They also disregarded the Daroghas testimony that the answers she gave were rational by stating that she suffered from unsoundness of mind on occasions.

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There is no doubt that the law requires, as laid down in Section 105 of the Indian Evidence Act, that the onus of proving circumstances which give the benefit of the general Exception to an accused person lies on him, and in the absence of evidence the presumption is against the accused. But this does not mean that the accused must lead evidence. If it is apparent from the evidence on the record, whether produced by the prosecution or by the defense, that the general Exception would apply, then the presumption is removed and it is open to the Court to consider whether the evidence proves to the satisfaction of the Court that the accused comes within the Exception. In this case, it was held that considering the previous history of the accused before the murder and from her family history followed by the proof that even for some time after the murder, the accused was insane. Additionally, no real motive could be seen for the murder. Therefore, it was held that she killed the child and suffered from unsoundness of mind.

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Bhupendrasinh A. Chudasama v. State of Gujarat

AIR 1997 SC 3790 In this case, the accused was an armed constable posted on a dam site in Gujarat. He was on patrolling duty when he shot dead the deceased, the superior of the accused. The deceased was on the tower at the dam site and the post-mortem report confirmed that he was killed by four gunshot wounds some of which hit the vital organs. Some time before the occurrence of this incident, the deceased had submitted a report against the accused for dereliction of duty. The prosecutions case was that the accused fired at the deceased as revenge against the adverse report. The accused took the plea of that the deceased was some distance away in a tower and it being a cloudy day, could not identify him. He claimed that he suspected that the person he saw in the tower was trying to commit some mischief by fire. Therefore, he shouted out and even fired two warning shots. However since the deceased did not respond, he shot at him and therefore, he died. The requirement of section 105 is that the accused who pleads any of the ' exceptions under Chapter IV has to prove it since law has cast the burden on him in such situation. The presumption raised by this section is that if the accused fails to discharge this burden, then the court will assume that the defence is not available. The standard of proof however, is not akin to that of the prosecution to prove the guilt of the accused. It is trite law that such burden can be discharged by the accused showing a preponderance of probabilities. In this case, the accused put forward a case for right of private defence only when he was examined by the trial court under Section 313 of the Code. He had not stated before that he was unable to identify his immediate superior and thought him to be a miscreant. The testimony of another constable who was also on duty stated that he saw the accused scampering away from the scene of occurrence and that when he was confronted he blurted out that he was proceeding to surrender himself since he had fired at the deceased. Therefore, he had not stated to anyone that he fired the rifle for protecting the tower, nor that he saw even the glimpse of a flame. In fact, there was nothing on the deceased or around him which could be mistaken for a flame.

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Therefore, it was held that this defence of the accused of private defence was an afterthought and it could not satisfy the requirement of s. 105 of the Evidence Act.

Facts Especially within Knowledge

106.

Burden of proving fact especial within knowledge: - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations: (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him.

(b)

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Shambu Nath Mehra v. The State of Ajmer

AIR 1956 SC 404 The accused, was a Government employee was charged with travelling on two journeys without valid second-class tickets and claiming reimbursements from the employer. It is alleged by the prosecution that the accused did not purchase second class tickets and therefore, is charged with s. 420 of the IPC and under the Prevention of Corruption Act. The only proof that is adduced in support of the allegation that he did not is that no second class tickets were issued at Ajmer on the relevant dates either for Abu Road or for Reengus. This is proved by the testimony of the Booking Clerk. However, the same witness also states that tickets are not always issued and that passengers can pay the fare on the train. Further, if the second class is fully booked no further tickets are issued till the arrival of the train and the passenger can buy a third class or inter-class ticket and then pay the difference to the conductor or guard of the train when the train arrives, if there is room in the second class. However, instead of strengthening its case with documentation, the State contented itself with saying that no second class tickets were issued. Even two years after the alleged incident when the case for trial, no other records were shown by the railway officials. There is no proof that one or other of these courses was not followed on the dates with which we are concerned. The prosecution thereafter relied on illustration (b) to section 106 of the Evidence Act and contended that the burden of proving that the accused did pay the second class fares was on him. The illustration however, must be read subject to the section itself and cannot travel beyond it. In this case, it must be understood that the stress is on the word especially. Section 106 is an exception to section 101. Section 101 lays down the general rule about the burden of proof. Illustration (b) to section 106 has obvious reference to a very special type of case, namely to offences under sections 112 and 113 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not he purchased a ticket. On the other hand, it would be comparatively simple for the passenger either
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to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance of his explanation than for the State to establish its falsity. If knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts. Therefore, here, the prosecution has not discharged its burden and has instead simply tried to shift the onus on to the accused. It is trite law that the prosecutions case must stand on its own legs and not the infirmities of the defense. They have failed to prove the case beyond reasonable doubt here and therefore, must fail.

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Emperor v. Santa Singh S/o Mula Singh

AIR 1944 Lahore 339 In this case 155 articles were found from a house such as rifles, pistols, ammunition, gunpowder and the equipment necessary to make all of the aforementioned articles. While in this house, there were several residents, there were only two adults, one, the father of the accused who was nearly 80 years old and partially blind and the accused who was much younger, who was the accused in this case. The question which the court had to consider was the scope of section 106 of the Evidence Act. Was the court to call upon all the occupants of the place to account for the presence of the incriminating articles in their premises and, in the absence of any satisfactory explanation on their part, to hold all of them to be in possession or control of the same? Section 106, Evidence Act, provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. However, this would not apply to a house from where a concealed article is found which is inhabited by a number of persons. This is because, the fact would not remain especially within the knowledge of the accused. Would it therefore, be different when a gun is lying in the middle of a room visible to all. It is in these circumstances that it is suggested that Section 106, Evidence Act, might be applied and all the persons occupying such a room should be called upon to prove that each and every one of them was not in possession of such article. Section 106, Evidence Act, cannot apply to such a case as the section does not affect the onus of proving the guilt of an accused. That onus rests on the prosecution and is not shifted on to the accused by reason of that section. It is not for the prosecution to eliminate all possible defences or circumstances which may exonerate an accused. The prosecution must prove facts establishing a prima facie case against the accused. If there are facts entirely within the knowledge of the accused which would explain his conduct such facts must be proved by him if he wishes to rely on them. That, however, does not mean that the onus of proving his innocence is cast on an accused person. The prosecution must prima facie establish his guilt in all cases. It is not sufficient for the prosecution to establish facts which only give rise to a suspicion and then
30

by reason of Section 106, Evidence Act, attempt to throw the onus upon the accused to establish his innocence. If the principles underlying Section 106, Evidence Act, were applied to cases in which the only evidence was that an article had been recovered from premises jointly occupied by a number of persons, it would be tantamount to throwing the onus upon each accused to establish his innocence on proof of mere facts giving rise at most to suspicion. The finding of a gun lying against a wall in a room occupied by a number of persons raises a suspicion against each and every one of those persons but it does not amount to prima facie proof of possession by each of these persons or all of them jointly. If Section 106, Evidence Act, was then applied, the prosecution would be absolved from proving the guilt of the accused and the accused would be bound to establish his or their innocence. Such cannot be the effect of Section 106, Evidence Act. It has no application to cases where the fact in question, having regard to its nature, is such as to be capable of being known not, only by the accused but also by others if they happened to be present when it took place. It cannot, in my opinion, be invoked to make up for the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. Where facts proved by evidence give rise to the inference of guilt, unless rebutted, it is not the result of the application of Section 106, but of the probative force of such facts. Hence, in this case, Section 106 could not be invoked when the prosecutions case cannot stand on its own legs and the question would have to be answered in the negative.

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State of West Bengal v. Mir Mohammed @ Omar

AIR 2000 SC 2988 In this case, a Kolkata businessman was abducted and subsequently found dead a few hours later. The reason for the abduction was that the accused and his henchmen were operating an extortion racket and the deceased had refused to pay them the money they had demanded. The accused abducted the deceased who escaped from their grasp. He was tracked down again and taken away with the abductors shouting threats such as "You escaped earlier. Now let me see how you would escape again", while beating with lathis shouting, "I will beat you and kill you like a pig". One of the accused said, "As you did not give the money which we asked for we would finish you today." A few hours later, the deceaseds body was found in a hospital in a mangled condition with several fractures, laceration etc. and it was determined that the death was homicidal in nature. During interrogation, the main accused directed the police to a shirt which was allegedly worn by the deceased from a room in the accuseds house. However, there were several lapses in the investigation and Trial court convicted only for abduction and due to the investigative lapses, the High Court reduced the sentence to the period already undergone. The State went in appeal against to the Supreme Court. Upholding the conviction for murder, the SC held that:
The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty.

Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of
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evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if accused would tell the court what else happened to Mahesh at least until he was in their custody. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. Therefore, the appeal was allowed and the SC also convicted for murder in addition to the charges framed against them.
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Presumption of Life and Presumption of Death

107.

Burden of proving death of person known to have been alive who within thirty years: - When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. Burden of proving that person is alive who has not been heard of for seven years: - provided that when] the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

108.

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K.S. Agha Mir Ahmad Shah and Anr. v. Mir Mudassir Shah and Ors.
AIR 1944 PC 100 In the case, a husband and wife governed by Mohammedan law, died in an earthquake. Under Mohammedan Law, if the wife lives longer than the husband, she is entitled to 1/4th of the husband's property. The remaining 3/4ths goes to the husband's heirs. The question before the court was, did the wife die before the husband or can they be said to have died at the same time? The reason why this is relevant is because if the wife died after the husband, then for the few extra moments she was alive, she would have title to the property and on her death, her parents would get the property as in this case, she had no children, so it goes to the parents. If both of them died at the same time, then the property would have remained with the husband and his heirs would inherit it. Under the common law, there exists a presumption that when two individuals perish in a common calamity and the question arises as to who died first, in the absence of evidence on the point, there is no presumption in law that the younger survived the elder. Such a question is always from first to last a pure question of fact, the onus probandi lying on the party who asserts the affirmative. This rule has not been modified in India by any statute as has been done in England by Section 184, English Law of Property Act, 1925. The text of the English Law section reads as under:
In all cases where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any Order of the Court), for all purposes affecting the title to property, be presumed to have occurred in Order of seniority, and accordingly the younger shall be deemed to have survived the elder.

This does not apply in India, although the Law Commission had suggested that a similar position be adopted, several years ago. However, till date there is no amendment to this effect. There was conflicting evidence as to whether the wife was "pulled out alive" or not out of the debris. The court relied on the presumption in law that if the parties in appeal (the wife's parents)

35

want to claim that the wife was alive longer than her husband, then it was their duty to discharge this burden by proving their claim. In this case they failed to do so and hence the court ruled in favour of the husband's family.

Communications During Marriage

122.

Communications during marriage: - No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married, nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

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Ram Bharosey v. State of U.P.

AIR 1954 SC 704 In this case, the accused husband was charged with murdering his father and step-mother who lived in an adjoining house. The relationship between the accused and his father and step-mother had soured and the accused suspected that his step-mother had taken away some precious jewelry and utensils from his house to their house. In the early hours of one morning, the wife of the accused saw the accused naked, taking a bath. Thereafter he put on a dhoti and shirt and told the wife that he was going to get the utensils and jewelry back. Some hours later, the father and step-mother of the accused were found dead in their home. The utensils and jewelry were found in the house of the accused stained with blood. The dhoti of the accused was also found to have blood stains on it. The blood was found to be human blood (this is before DNA technology was used). Within all of this, the testimony of the wife of the accused was crucial. The court however, held that the communication which took place between them when the husband told her that he was going to get the utensils and jewelry back was inadmissible as it was prohibited by s. 122. The court however, stated that the testimony of the wife that she saw the accused taking a bath, the time of occurrence of this and the clothes that he wore would be admissible as it was not communicated to her by the accused. She observed all of this using her own faculties and therefore, it would not be affected by the bar imposed under s. 122. It is therefore important that the communication sought to be protected is actually communicated and not merely observed by the spouse. Therefore, the conviction of the accused was upheld in this case.

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Official Communications

123.

Evidence as to affairs of State: - No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

124.

Official communications: - No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interest would suffer by the disclosure.

125. Information as to commission of offences: - No Magistrate or police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue. Explanation: - Revenue officer in this section means an officer employed in or about the business of any branch of the public revenue.]

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The State of Punjab v. Sodhi Sukhdev Singh

AIR 1961 SC 493 In this case, a District and Sessions Judge in the erstwhile state of Pepsu was removed from office by a Presidential order. During this time, Presidents Rule had been imposed and the President was in charge of the Administration of the State. The respondent made a representation against the Order of removal which was considered by the Council of Ministers of the State. In the meantime the President's rule had come to an end. In the meantime, a Report of the Public Service Commission was called for and by the time this report was received, the Council of Ministers was the determining body and it considered the matter. The final conclusion reached was that the respondent must be re-employed on some suitable post. The respondent thereupon instituted a suit against the successor State of Punjab for a declaration that his removal from service was illegal and in that suit he filed an application for the production of the report of the Public Service Commission and certain other documents. The State objected to the production of these documents claiming official privilege under the Evidence Act. The Supreme Court upheld the claim of privilege put advanced by the State and so far as the Report of the Public Service Commission was concerned, the learned Judge held that it was protected against disclosure under Section 123 of the Indian Evidence Act. The principle behind the exclusionary rule enacted in Section 123 is that a document should not be allowed to be produced in court if such production would cause injury to public interest and where a conflict arises between public interest in non-disclosure and private interest in disclosure, the latter must yield to the former. Though section 123 does not expressly refer to injury to public interest, that principle is obviously implicit in it and indeed it is the sole foundation and proceeded to add that even though administration of justice is a matter of very high public importance, if there is a real "conflict between public interest and the interest of an individual in a pending case, it may reluctantly have to be conceded that the interest of the individual cannot prevail over the public interest." Therefore, while the statute grants authority to the Head of Department to release or withhold the document, this case held that the Court is competent, and indeed is bond to hold a preliminary
39

enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry in the question as to whether the evidence relates to an affairs of State under Section 123 or not. In this enquiry the court has to determine the character or class of the document. If it comes to the conclusion that the document does not relate to affairs of State then it should reject the claim for privilege and direct its production. If it comes to the conclusion that the document relates to the affairs of State it should leave it to the head of the department to decide whether he should permit its production or not. A classification was drawn between noxious and innocuous documents. If the document is noxious, then it cannot be released to the public as public interest is likely to suffer by such a disclosure. It was held that documents such as cabinet minutes, reports by high-powered executive bodies etc. would almost always be noxious and cannot be released to the public. If it is noxious, then the court ordinarily would not examine it, otherwise, the court is duty bound to examine the documents to determine whether or not they should be released. Therefore, the court accepted the argument of privilege in this case and report of the Public Service Commission was not shown to the respondent.

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S.P. Gupta v. Union of India

AIR 1982 SC 149 This case popularly known as the judges transfer case centered around whether or not the letters written by the Law Minister to the Chief Justices of different High Courts could be granted protection under s. 123 of the Indian Evidence Act, 1872. This case over-ruled the ratio in the case of State of Punjab. v. S.S. Sodhis case (discussed above) and over-ruled it. It held that the law relating to s. 123 cannot remain static and must change with the changing circumstances. This section was enacted more than a century ago (then) and therefore, it must be seen in the light of present-day circumstances. Even the class of documents which was identified in S.S. Sodhis case cannot be a static set and must change with the changing times. To state that all documents pertaining to judges would be under the class of noxious documents as identified by S.S. Sodhis case would amount to granting the judiciary a class-immunity. This would indeed be quite inconsistent with the constitiutional scheme and those persons who argue for such an immunity must have a very heavy burden of proof placed upon them. The court held that the citizens right to know is one of the pillars of a democratic state. In cases such as the present, it is not a case of individual interest as opposed to the interest of the state. Knowledge about the administration of justice is in itself public interest. In this case, it is public interest clashing with public interest. Therefore, the court must finely balance the conflicting public interests. The court stated that for the purposes of achieving a suitable balance, inspiration could be drawn from Article 19(1)(a) and the restrictive manner in which the restrictions upon it in Article 19(2) have been interpreted. In light of this, the court held that if a privilege of non-disclosure is taken, then it must be only in a very exceptional number of circumstances and an affidavit has to be filed before the court by the Head of Department or the Minister. The court will determine, on the basis of this affidavit whether or not a case for granting the privilege is made out. If the affidavit is found to be insufficient, then it shall always remain open to the courts to call for the original documents for its scrutiny.
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Communication with Legal Practitioners

126.

Professional communications: - No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his clients express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professions employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment: Provided that nothing in this section shall protect from disclosure: (1) Any such communications made in furtherance of any 1[illegal] purpose. (2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.

42

It is material whether the attention of such barrister, 2[pleader], attorney or vakil was or was not directed to such fact by or no behalf of his client. Explanation: - The obligation started in this section continues after the employment has ceased. Illustration (a) A, a client says to B, an attorney - I have committed forgery and I wish

you to defined me. As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure. (b) A, a client, says to B, an attorney - I wish to obtain possession of property by the use of forged deed on which I request you to sue. This communication, being made in furtherance of a criminal purpose, is not protected from disclosure. (c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings B observes that an entry has been made in As account book, changing A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected disclosure.

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127.

Section 126 to apply to interpreters, etc.: - The provision of section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys, and vakils.

128.

Privilege not waived by volunteering evidence: - If any party to a suit gives evidence there at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126; and if any party to a suit or proceeding calls any such barrister, pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.

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Ayesha Bi v. Peerkhan
AIR 1954 Mad. 741 In this case the lawyer was charged with defamation by the complainant. She alleged that in a case where she had accused the husband of causing hurt, the lawyer asked her about her sexual history and made allegations in open court that the two children she had were fathered by the neighbour. These questions were asked in cross-examination and therefore, it is only the responses of the complainant that were recorded and not the questions asked by the lawyer. Further, the case law on s. 449 Exception 9 of the IPC has stated consistently that all the actions of the lawyer are presumed to have been done on the instructions of the client. This presumption however is rebuttable. This case is important as it talks of the purpose of cross-examination and the power of the court to disallow questions which are irrelevant or offensive under the Indian Evidence Act, 1872. In this case, the complainant withdrew the case as her point was vindicated. However, the court seemed to be inclined to be willing to charge both the lawyer and the client who he represented for defamation. The court held that while the client may have some grudge against the complainant as she had instituted prosecution against him, but the lawyer was a professional and should have known better than to ask such questions. The court warned the lawyer that in crossexamination, the objective is to determine the truth of the matter and not to examine the witness crossly. In a case such as this, the privilege granted to lawyers under s. 126 would not operate due to first proviso as this would be in furtherance of an unlawful purpose, i.e. defamation which is an offence under the IPC.

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In Re: An Attorney
AIR1925Bom1 In this case, a Hindu widow engaged the services of an attorney to help her to make an adoption. On her behalf, two persons, a pleader and a distant relation of hers, worked with the attorney. The attorney consulted these two persons and prepared a draft agreement and drew up the final agreement of adoption. The deed when ready was approved by an independent firm of attorneys on behalf of the boy to be adopted. The widow adopted the boy in due course. Some years later, a suit was brought by a bank in the Zanzibar Court against the Zanzibar shop of the widow's husband to recover money wherein the bank alleged that the adoption made by the widow was invalid. Shortly thereafter the widow herself instituted a suit in the High Court of Bombay for a declaration that the adoption was invalid in law. In the Zanzibar suit, a commission was issued to examine witnesses in Bombay. The attorney, who had represented the widow at the time of adoption, appeared for the guardian of the adopted boy in the commission proceedings. The attorney was examined as a witness and he produced some papers connected with the adoption deed, showing his consultations with counsel, and the draft of the proposed agreement for adoption which ultimately resulted in the adoption deed. He also made certain statements connected with these documents and the consultations and instructions that he had from and on behalf of the widow in connection with the adoption. A charge was brought against this attorney for professional misconduct as he made the disclosures without the clients (widows) consent. The High Court of Bombay took up this matter under its disciplinary jurisdiction. Other than the apparent conflict of interest in this case, the lawyer was bound to avail of the privilege granted to him under s. 126. If he wanted to disclose any information, it would be necessary for him to get permission from the clients. The presence of another person during negotiations for adoption does not discharge the attorney from the obligation created by s. 126. The nature of the work done by the attorney was of a confidential nature and the obligation to not disclose its contents was on him and not the other persons present during the proceedings. Section 126 of the Indian Evidence Act prohibits
46

disclosure not only of any advice given by the attorney in the course and for the purpose of his employment, but also of advice given to the attorney by another person such as a barrister. The obligation of secrecy imposed by Section 126 continues even after the employment has ceased. It would not be relevant that at the time the communications were made there was no pending litigation or any prospect of it. Therefore, the High Court found the attorney liable for professional misconduct and suspended him for three months.

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129.

Confidential communications with legal advisers: - No one shall be compelled to disclose to the Court any confidential communications which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.

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Municipal Corporation of Greater Bombay v. Vijay Metal Works

AIR 1982 Bom. 6 In this case, the Municipal Corporation was building a flyover and needed to clear land for that purpose. It served a notice of eviction on the concern which is the respondent in the present appeal. They contended that the place where their factory was located would not have to be cleared for building their flyover. The Municipal Corporation referred this matter to their in-house lawyer who was on the payroll of the Municipal Corporation. When the respondent asked the Municipal Corporation to disclose the opinion, they claimed a privilege under s. 129. The court had to consider two questions: Firstly, whether a lawyer working in the legal department of the Municipal Corporation would be a legal advisor for the purpose of s. 129. Secondly, if the answer to the first question was in the affirmative, then what was the sort of information to which the privilege would extend. On the first issue, it was held that mere non-appearance before the court does not disentitle a lawyer from being a legal advisor. The court held that the nature of the legal profession was changing from a notion of an individual counsel representing parties before a court to include those persons working in the legal departments of very large public bodies and corporations. Therefore, it would be unfair and in-fact absurd to refuse to recognize the lawyers working in the legal department of the Municipal Corporation. On the second issue, the wording of section 129 mentions that the privilege operates only in cases of confidential communication. While in this case, the Municipal Corporation did raise the argument that the communication it had with its lawyer was of confidential nature, the court was afraid that this provision is liable to used as a cloak for deprivation of rights. Therefore, the court asked the documents to be submitted to it and it would determine its confidentiality. It was found on the basis of the documents that the contention of the respondents was correct and there was no need to ask them to be evicted. Therefore, the court came down heavily on the Municipal Corporation as they were trying to misuse the privilege granted under s. 129 so as to
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be able to acquire excess land and unlawfully evict the respondent. The court dismissed the appeal and ordered the Municipal Corporation to bear the costs for the proceedings.

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