Saji Koduvath Associates

Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is No Formal Proof or (ii) it is a Photocopy?

Answer: No, the Court Cannot.

It is not at all proper for the court to vociferously drum-out the copy of a document totally disregarding the rights of the parties conferred by the Evidence Act to exhibit the copy (when it is admitted by the other side).
If the truth of contents of a document is disputed (and truth cannot be presumed under Ser. 114 Evidence Act), just marking the document, even with the (formal) consent of the opposite side, does not prove ‘truth’ of its contents. However, the party against whom the document is presented can admit truth of the contents also.

Saji Koduvath, Advocate, Kottayam.

Abstract

            •➧ Sec. 58, Evidence Act – Admission is a mode of proof; ‘Facts admitted need not be proved’.
              •➧ Sec. 136, Evidence Act permits to furnish a fact before proving it formally, if “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”.
              •➧ Order XIII Rule 3 CPC speaks as to rejection of irrelevant and inadmissible documents (it does not deal with mode of proof).
              •➧ Whenever a relevant and admissible document is tendered in evidence, otherwise than through its executant (or otherwise than through a person who can prove signature or handwriting) but through a person who can depose as to its contents, the Courts in India exhibit it ‘subject to proof’ or ‘subject to objection’. Same is the case, as to marking a copy without ‘foundational evidence’.
              •➧ Where no objection (to the opposite side) to marking a document and the court sees deficiency (e.g.: insufficiency of stamp), the court should bring notice of it to the counsel.

Documents Marked Without Objection as to its MODE OF PROOF – Effect

The law prevails in India is the following –

If a document is marked without objection as to its mode of proof, it is not open to the other side to object its admissibility afterwards.

Following leading decisions predicate the legal basis in this matter as under:

P.C. Purushothama Reddiar v. S. Perumal,(1972) 1 SCC 9 (Three Judge Bench – A.N. Grover, K.S. Hegde, A.N. Ray, JJ.)	Police reports were marked, without examining the Head Constables who covered those meetings, without any objection. Hence it was not open to the respondent to object to their admissibility.	Relied on: Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)	Photo copies were admitted in evidence ‘without foundation‘; but, without objection. They cannot be held inadmissible for originals were not produced. Failure to raise a timely objection amounts to waiver.	Relied on: Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar v. S. Perumal
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082	Copy of sale deed was marked without examining the executant or the donor; but, without objection. It was argued that mode of proof was insufficient. Held: Objection as to the mode of proof falls within procedural law. It could be waived.	Relied on: Gopal Das v. Sri Thakurji R.V.E. Venkatachala Gounder; Gopal Das v. Sri Thakurji, AIR 1943 PC 83; Sarkar on Evidence, 15th Edition, page 1084.
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239 (R.M. Lodha, D.K. Jain,JJ.).	If no objection on ‘mode of proof’ (for, non-examination of the author and absence of “proof of acknowledgment” by him), it will be too late (in appeal) to raise objection.	…
Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), 2023 4 SCC 731 (B. V. Nagarathna, V. Ramasubramanian, A. S. Bopanna, B. R. Gavai, S. Abdul Nazeer, JJ.)	If no objection as to mode of proof (secondary evidence) when marked, no such objection could be allowed to be raised at any later stage.	…
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315	No objection as regards the truth* of contents* of Ex. 32. The witness of the defendant accepted the contents. Therefore, too late in the day to canvass that contents of Ex. 32 were not proved.	…

Who Should Object FIRST – Court or Opposite Side?

There is divergence of judicial opinion as to saying ‘NO’ by court to marking a document with formal defect, beforehand it is objected by the other side. Eg. Tendering copy of a document without furnishing the ‘foundational evidence’ to admit secondary evidence.

First view Court is under an obligation to exclude inadmissible materials.	H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492 (Followed in: U. Sree v. U. Srinivas: AIR 2013 SC 415.) Yeshoda v. Shoba Ram: AIR 2007 SC 1721
Second view The court cannot object first. If no objection for other side, Court cannot refrain from marking a document on its own volition or choice (on the ground of formal defect).	R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082. (This view is generally followed in India.)

First View: Court is under an Obligation to Exclude

In H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, it is held:

“Mere admission of a document in evidence does not amount to its proof. … The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.” (Followed in: U. Sree v. U. Srinivas: AIR 2013 SC 415.)

In Yeshoda v. Shoba Ram: AIR 2007 SC 1721, it is held:

“In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. .. The conditions laid down in the said Section (Section 65) must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section.

Second View – Failure to Raise Objection, Amounts to Waiver

In RVE Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: 2003-8 SCC 752 it is laid down that “failure to raise timely objection” as to the irregularity of mode adopted for proving the document “amounts to waiver“.

Therefore it is clear that ‘objection’ is a matter that primarily remains in the realm of the opposite party; rather than the court.

It is typically followed in India, after R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple (supra).

Note: 1. If the deficiency is pertaining to non-registration of a compulsory registrable document (as it falls under the head, inadmissible document) the court can desist the marking of the document.
2. By virtue of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, unless the court has not applied its mind to the insufficiency of stamp, and unless there is a ‘judicial determination‘, the objection thereof can be raised at any time.

In RVE Venkatachala Gounder (supra), our Apex Court held as under:

“Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:
- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
- (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. …. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.”

Proof of Document is, normally, Proof of (both) Execution and Contents

When existence of a document is proved (either by admission or by proof), normally, contents thereof are also taken as proved.

In most cases, ‘proof of execution’ may lead the court to presume ‘proof of truth’. But, it is not a rigid rule, for it falls under the caption, “appreciation of evidence”.
Evidence Act does not expressly proffer anything as to “TRUTH of contents” of documents. It is left to the discretion (Sec. 3) of the court. In proper cases court is expressly authorised to presume (Sec. 114) truth.

Therefore, by virtue of our procedure-laws (especially, Sec. 3 and 114 Evidence Act) and the law handed down by our Apex Court, the Courts are free to appraise a “marked” document as under:

1. Contents and ‘Truth of its Contents’ stand proved, or
2. Mere marking does not amount to proof of contents (even), or
3. Admission of contents; not truth of contents (especially when truth is in issue), or
4. Admission of contents and truth of contents; but, its probative value is small or nil.

Admission by the other side, Proves Contents – No Blindfold Application

Court has wide powers under Sec. 165 of Evidence Act to require, evidence to prove a document marked on ‘admission’. Besides the powers under Sec. 165, the Procedural Acts show that the courts have jurisdiction to require the party concerned to prove admitted-documents. It is evident from the ‘Provisos’ of –

Sec. 58 of Evidence Act
O. XII, r. 2A Proviso, CPC and
Sec. 294 of the CrPC.

The Courts are free to refrain from acting upon any document, in the particular nature of a case, especially when the Court feels that injustice will be resulted by the blindfold application of this principle (admission of a document by the other side, proves its contents also), for it falls under the sphere, “appreciation of evidence”. It is the reason why the courts deviate from the general principles in certain cases, in the peculiar circumstances of those cases, saying –

(i) Contents are ‘not proved’ (Though signature Proved)
(ii) Truth of contents are ‘not proved’ (Though contents Proved)
(iii) Probative value is small or nil (Though contents and truth Proved).

Proof must be by one who can Vouchsafe for Truth – Not Beseem in All Cases

The normal rule as to proof of execution is made clear in Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745, under the following words –

“Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue”.
See: Assistant Commissioner of Customs v. Edwin Andrew Minihan, ILR 2024-1 Ker 596; 2023-7 KHC 512; 2024-1 KLT 24.

This “normal principle” (that proof must be by one who can vouchsafe for truth), is not invariably followed – e.g., a letter or a deed obtained by a witness in ‘due/common course’. In such cases, if only ‘truth’ as to the contents of the documents is in dispute, this rule is insisted.

Relevancy of Evidence

Sec. 5 and 136 of the Evidence Act stipulate that evidence can be given only on ‘facts in issue’ or ‘relevant facts’. Relevant facts are enumerated in Sec. 6 onwards.

Sec. 5 Evidence Act, 1872 deals with Relevancy

Sec. 5 of the Indian Evidence Act, 1872 reads as under:

“5. Evidence may be given of facts in issue and relevant facts – Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation – This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure

Sec. 136, Evidence Act – Permits Evidence on Undertaking of the Party

Sec. 136, Evidence Act permits to furnish a fact before proving it formally, if “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”. It reads as under:

“S. 136. Judge to decide as to admissibility of evidence.
             When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
             If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
             If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”

Court can Reject ‘Irrelevant’ or ‘Inadmissible’ Document At Any Stage

Order 13 Rule 3 CPC reads as under:

“Rejection of irrelevant or inadmissible documents – The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

It is pertinent to note that Order 13 Rule 3 CPC speaks as to rejection of irrelevant and inadmissible documents, at any stage of the suit. It does not deal with probative value of a document, or marking/exhibiting the same in evidence. The courts can adjudicate the matters before it only on the basis of the substantive evidence.

Court Cannot Discard Documents, Straight Away. It has to be marked ‘subject to proof’

When a ‘relevant’ and ‘admissible’ document is tendered in evidence, otherwise than through its executant (or a witness to the document) –

Can it be discarded outright by the Court, pointing out – no ‘formal proof’?
What will be the situation if the opposite side does not raise objection (or expressly say – they have no objection) to such marking?
Can a copy of a document be marked without ‘foundational evidence’, on admission from other side?

It is definite –

The court cannot discard such documents, straight away.
It has to be marked ‘subject to proof’ or ‘subject to objection’, as it is the practice followed. The law also supports it.

Possible Potential Objections about Documents

Possible objections as to marking documents can be as regards –

(i) Relevancy.
(ii) Admissibility.
(iii) Probative value.
(iv) Mode (or procedure) adopted to prove – that is,
- Whether original, photocopy, certified copy etc. and
- Whether exhibited through proper or competent person.
(v) Insufficiency of stamp.
(vi) Compulsorily registrable, but unregistered.
(vi) Compulsorily attested by witnesses, but not attested (will, gift, mortgage, bond).

Each one of the objection is independent from another.

Read Blog: Substantial and Auxiliary Documents Used in Evidence

Admission is a Mode of Proof; ‘Facts Admitted Need Not be Proved’

Usually, a document is proved through its author, or through a witness to its execution or a person acquainted with handwriting. Concession or admission by the opposite side is an acceptable form of proving documents in evidence (under Sec. 17, 21, 58, 59 Evidence Act).

Sec. 58, Evidence Act reads as under:

“58. Facts admitted need not be proved: No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”

Sec. 58 says that no fact need be proved in any proceeding in three circumstances:

the parties or their agents agree to admit at the hearing
before the hearing, they agree to admit by any writing under their hands
by any rule of pleading they are deemed to have admitted by their pleadings.

“Hearing” Partakes ‘recording evidence’

Legal implication of the term ‘hearing’ is clear from Rule 2 (1) of Order XVIII (Hearing of the suit and examination of witnesses) of the CPC – that is, hearing partakes ‘recording evidence’. Rule 2 (1) reads as under:

“2. Statement and production of evidence – (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.”

Admissions at Hearing

Admissions at ‘hearing’ (by the advocate) may be made at the evidence-stage (while the witnesses are examined) and at the time of ‘final hearing’. Admissions of advocate are to be deciphered from Order-sheet or Judgment.

Once NO Objection to Mode of Proof, NOT Legitimate to Refrain Marking

From the above it is clear that it would not be legitimate for the court to refrain from exhibiting a relevant document which could be received in evidence on the (express or implied) concession or admission of the opposite side (as regards mode of proof), in the scheme of Evidence Act.

Our Procedure Codes (CPC, CrPC) also declare this principle.

Copy Marked, Without Objection, Right to Objection Stands Waived

“Admission”is a mode of proof, inasmuch as ‘facts admitted need not be proved’ (Sec. 58, Evidence Act). Once a document is marked as no objection to the mode of proof on account of lack of original, then the right to raise objection (on this score) stands waived. See:

Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;
Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon);
Sonu @ Amar v. State of Haryana, AIR 2017 SC 3441; 2017-8 SCC 570
Dayamathi Bai v. KM Shaffi, (2004) 7 SCC 107;
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752;
Rafia Sultan Widow of Mirza Sultan Ali Baig v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 GujLH 27; 1985-2 GujLR 1315
Sk. Farid Hussinsab v. State of Maharashtra, 1983 CrLJ 487 (Quoted in Sonu @ Amar v. State of Haryana, AIR 2017 SC 3441; 2017-8 SCC 570)

Admissions are Substantive Evidence By Themselves

In Bharat Singh v. Bhagirathi, AIR 1966 SC 405: [1966] 1 SCR 606, it was observed as under:

“Admissions are substantive evidence by themselves, in view of ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appeared as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under s. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.”

Bharat Singh v. Bhagirathi is quoted/referred to in:

Dipakbhai Jagdishchandra Patel v. State of Gujarat, AIR 2019 SC 3363; 2019-16 SCC 547.
Union of India v. Moksh Builders And Financiers Ltd., 1977 AIR SC 409; 1977-1 SCC 60.
Bishwanath Prasad v. Dwarka Prasad AIR 1974 SC 117, 1974-1 SCC 78,
Sita Ram Bhau Patil v. Ramchandra Nago Patil, (1977) 2 SCC 49,
Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153; 1971-1 SCC 864.

Admission in a sale deed is ‘Substantive Evidence’; It need not be Confronted

In Murlidhar Bapuji Valve v. Yallappa Lalu Chougule, AIR 1994 Bom 358 (an often quoted decision), it was held that it was well settled law that an “admission” of a party (in a sale deed) was liable to be considered as substantive evidence even if the party made the admission was not confronted with the statement.

Judicial Admissions and Admissions in Pleadings

In Nagindas Ramdas v. Dalpatram Iccharam, AIR 1974 SC 471, it was held by the Supreme Court as under:

“26. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong.” (Quoted in: Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad: AIR 2005 SC 809, 2005 (11) SCC 314.)

See also:

Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;
Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon);
Oriental Insurance Co v. Premlata: (2007) 8 SCC 575,
Dayamathi Bai v. KM Shaffi, (2004) 7 SCC 107, AIR 2004 SC 4082;
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752;
Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745
Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63.

When a document is marked without objection, our courts take two (divergent) views:

First, both Contents and ‘Truth of its Contents’ stand proved.
Second, contents alone stand proved; and, not ‘Truth’ of its Contents.

Effect of marking document without objection is laid down in the following two recent decisions of the Supreme Court. In both these cases, it is seen, the Apex Court has taken the view that the ‘truth’ is also stood proved.

Neeraj Dutta v. State (Govt. of N. C. T. of Delhi)

The Constitution Bench (B. V. Nagarathna, V. Ramasubramanian, A. S. Bopanna, B. R. Gavai, S. Abdul Nazeer, JJ.) of our Apex Court laid down in Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), AIR 2023 SC 330; 2023 4 SCC 731, as under:

Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence.
When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act.
Mere production and marking of a document as an exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence. On the other hand, when a document is produced and admitted by the opposite party and is marked as an exhibit by the court, … (sic – no objection can be raised at any later stage with regard to proof of its contents).
The contents of the document must be proved either by the production of the original document i.e., primary evidence or by copies of the same as per Section 65 as secondary evidence.
So long as an original document is in existence and is available, its contents must be proved by primary evidence.
It is only when the primary evidence is lost, in the interest of justice, the secondary evidence must be allowed.
Primary evidence is the best evidence and it affords the greatest certainty of the fact in question.
Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence.
What is to be produced is the primary evidence i.e., document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents.
Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original.
Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence.
Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence.
There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no option to hold the existence of the fact otherwise when such evidence is made conclusive.

It is held further as under:

“44. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. ….. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh v. State (Delhi Admn.) 1995 Cr LJ 1623 (Del) (“Amarjit Singh”). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”

Objection as to non examination of the author is too late in the day

In PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239, it is observed that the objection as to non examination of the author is too late in the day . It is held as under:

“No objection on pleas of “inadmissibility” or “mode of proof” was raised at the time of their exhibition or any time later during trial, when most of the witnesses, produced by the parties were confronted with these, as duly exhibited, bearing stamp marking with particulars, prescribed under Order XIII Rule 4 of the Code of Civil Procedure, 1908 and duly signed as such.
In our opinion, it is too late in the day now to object to their exhibition on the ground of “prescribed procedure” i.e. mode of proof.
Moreover, we also find that it was nobody’s case that the said documents were got printed by John K or distributed amongst voters by him. Absence of proof of acknowledgment by him because of non production of John K as a witness, in the circumstances, in our view, is inconsequential.
Admittedly, John K was a well known leader of high stature, recognized as such by Christian/Catholic voters including those mentioned in Para 17 (supra) and, therefore, there is no question of drawing an adverse inference against the election petitioner for not examining him, as strenuously urged on behalf of the appellant, particularly when the printing and circulation of offending material (Exts.P1 and P2) has been proved by the election petitioner beyond reasonable doubt.”

(b) Document marked without objection – Contents (‘TRUTH also) proved

Objection as to Truth of Contents, First Time In Appeal – Effect – Too late in the day

In Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315 it is observed as under:

“It was never the case of the Commission that report which was submitted in a sealed cover was not the genuine and true report of the committee appointed by the Commission itself. Thus in short no objection about the truth of contents of Ex. 24/1 i. e. Ex. 32 was ever put forward before the trial Court and rightly so as that was the report of its own committee of experts appointed by the Commission for enlightening itself about the causes of the accident and about the future safety steps which were required to be taken to avoid such accidents. … Not only that but the witness of the defendant accepted the contents of the said document Ex. 32. Nothing was suggested by him or even whispered to the effect that the contents of the said report were in any way untrue. …. In fact both the sides have relied upon different parts of Ex. 32 in support of their rival contentions on the aspect of negligence and contributory negligence. It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal that contents of Ex. 32 were not proved in accordance with law and hence the document was required to be taken off the record. It is now well settled that objection about mode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli, AIR 1943 PC 83 at page 87 ). In view of this settled legal position the objection raised by Miss Shah against admissibility of Ex. 32 viz. that its contents were not proved in accordance with law has to be repelled.”

When a document is marked without objection, no doubt, the presumption in Sec. 114 of the Evidence Act is wide enough to presume that (i) the “contents” of the document and (ii) its ‘truth’ stand ‘proved’. Therefore, it is the duty of the other side to express its disapproval – that it does not accept the ‘contents’ and/or ‘truth’ (if it is so).

The dissent thereof can be placed by the opposite side by-

Raising ‘objection’ at the time of its marking, or
Placing the protest by way of ‘suggestion’ to the witness or by proper questions.

(c) TRUTH is left to Discretion (Sec. 3) & Presumption (Sec. 114) of Court

Sec. 67, Evidence Act lays down the fundamental principles as to the proof of documents. Sec. 67 reads as under:

“67. Proof of signature and handwriting of person alleged to have signed or written document produced—If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”

Sec. 67 says as to ‘proof of signature and handwriting’ alone. Neither Sec. 67 nor any other section of the Evidence Act says about ‘proof as to truth‘ of contents of documents.

Inferences as to “TRUTH of contents

Evidence Act does not expressly proffer anything as to “TRUTH of contents” of documents.
It is left to the discretion (Sec. 3) of the court. In proper cases court can presume (Sec. 114) truth.
In most cases, ‘proof of execution’ leads the court to presume ‘proof of truth’.
It is more so, when a document is admitted (by the other side) without objection.
But, when proof as to ‘truth’ is in issue, or in dispute, the party in whom the burden thereof rests has to discharge it.

(d) Legal Position on ‘Waiver’ of Mode of Proof, Reprised

It appears that the legal position can be summed-up as under –

If a document is marked without objection, the right of objection (vested with the other side) stands waived. And the entire contents of the document will be admissible in evidence.
However, if (i) there is any intrinsic infirmity to the document, or (ii) specific proof as to truth is required in the nature of the case of the parties, or it is marked through a witness who is incompetent to prove it (and the opposite party does not expressly or impliedly accepted it), the court can say – it is not ready to act upon it, for truth or correctness of contents is not established.

In Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, it is pointed out that (in such a situation) there must be some evidence to support the contents of such document.

The following decisions also lay down the proposition that ‘mere marking of a document’ as an ‘exhibit’ may amount to proof of contents, but not its ‘truth’.

Rakesh Mohindra v. Anita Beri, 2015 AIR(SCW) 6271.
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758;
Sait Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865;
Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796 (“Mere identifying the signature of Mr. Pathak (by a witness) does not prove the contents of the said letter which is being relied upon by the appellant.”);

It is apposite to note – in RVE Venkatachala Gounder v. Arumlmigu Viswesaraswami, AIR 2003 SC 4548, the question as to ‘truth’ of contents did not specifically come for consideration. It is dealt with as under:

“Since documents A30 and A34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photo copies, the originals of which were not produced.”

Standard of Proof in Civil Cases – Preponderance of Probability

It is noteworthy that the standard of proof required in civil cases is different from that of criminal cases; since, civil court proceeds on a preponderance of probability, whereas criminal court insists ‘proof beyond reasonable doubt’. In Miller v. Minister of Pensions, (1947)2 All ER 372, Lord Denning, described preponderance of probability as “more probable than not”. It is said in picturesque as ‘likelihood of 51%’.

2. MERE MARKING, DOES NOT PROVE THE CONTENTS – NOT AN UNQUALIFIED PROPOSITION

This Proposition is Not to be Applied “Literatim”

It is disgraceful that several courts in India apply this proposition (Mere Marking Does Not Prove the Contents) ineptly.

This proposition is not attracted–

when a document is marked on ‘admission’ by the opposite side.

This proposition is attracted–

(i) when it is evident that the document is marked only for ‘identification‘, or
(ii) when the objection raised by the other side is sustained and the document is marked ‘subject to proof/objection’.

Each Case under this Head Requires Distinct Consideration

As this proposition (Mere Marking Does Not Prove the Contents) is not to be applied “literatim”, each case (which referred to this proposition) requires distinct consideration. (Some of these decisions mentioned this proposition, merely to show that such an argument was placed before it; but those decisions were quoted (subsequently) by some Courts as if those earlier decisions laid down a ‘ratio decidendi’.)

Read blog: Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion

Accepted law on this point –

1. MERE MARKING PROVE THE CONTENTS if no objection. E.g. Rent receipt executed by the opposite side; Photocopy of a document.
2. MERE MARKING WILL NOT PROVE THE CONTENTS if Truth of the facts in the document was “in issue“ or validity was very much in question.

Following are the often-cited cases on this subject.

Cited to support the Proposition – MERE MARKING PROVE THE CONTENTS

Decision	Were the documents ‘marked without proper proof‘ accepted in evidence?	Reason for MARKING
Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745	Yes. The rent receipts* were received in evidence. (without formal proof)*	The rent receipts were ‘not disputed’* by the other side.*
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758	Yes. The secondary evidence* of dying declaration produced in this case was accepted by the Court.*	Secondary evidence was adduced with foundational evidence* (for producing copy; not original)*

Cited to support the Proposition – MERE MARKING DOES NOT PROVE THE CONTENTS

Decision	Did the proposition – Mere Marking Does Not Prove the Contents – unreservedly apply?	Reason for NOT MARKING
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085	No. Truth of contents of a letter and two telegrams were not taken. (though marked)	Truth of the facts in the document was “in issue“
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712	No. Validity and Genuineness of the Photocopy (of the Caste Certificate) was not accepted (though marked)	Validity and Genuineness of the Caste Certificate was very much in question
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240	No. Contents of the *Photocopy* was not received as proof (though marked)	*Photocopy* was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.
Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865	No. Accounts of the Plaintiff was not received as proof (though marked)	The accounts of the Plaintiff would not be proved by itself

(a) Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745

[The proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in this case, for – the rent receipts were taken as proved, for, it was ‘not disputed’ by the other side.]

It is held in Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745 as under:

“Reliance is heavily placed on behalf of the appellant on Ramji Dayawala v. Invest Import: AIR 1981 SC 2085. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue”.

Narbada Devi Gupta v. Birendra Kumar Jaiswal (supra) continued as under:

“The plaintiff did not dispute his signatures on the back of them. There was, therefore, no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution by the deceased landlady.”

Note:

In this case the rent receipts were taken as proved, for, it was ‘not disputed’._{[Hence the ‘legal position’ stated in Ramji Dayawala v. Invest Import (that mere production and marking of a document cannot be held to be a due proof) was not attracted in this case.]}

(b) Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758

[The proposition (Mere Marking Does Not Prove the Contents) neither attracted nor applied in this case, for – the secondary evidence of dying declaration produced in this case (with foundational evidence) was accepted by the Court]

In this case the Courts upheld the acceptance of the secondary evidence (of the dying declaration). Our Apex Court held as under-

“In the instant case, the Trial Court had granted permission to lead secondary evidence and the same had been adduced strictly in accordance with law and accepted by the courts below.”

It is only pointed out in this decision as under:

“However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further,mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with the proof , which is otherwise required to be done in accordance with law.
- (Vide: The Roman Catholic Mission v. The State, AIR 1966 SC 1457;
- Marwari Khumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629;
- RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548;
- Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and
- LIC of India v. Rampal Singh Bisen,2010-4 SCC 491).”

(c) Ramji Dayawala v. Invest Import: AIR 1981 SC 2085

[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – Truth of the facts in the document was “in issue“]

It is held as under:

“Obviously, in these circumstances the Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence. Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouch safe for the truth of the facts in issue.”
_{Note: The aforequoted portion itself will show that the proposition – mere proof of the handwriting would not tantamount to proof of contents – is not absolute. It is attracted to this case, because the truth of the facts was “in issue“.}

(d) M. Chandra v. M. Thangamuthu, 2010-9 SCC 712

[The proposition (Mere Marking Does Not Prove the Contents) was attracted in this case, for – the Validity and Genuineness of the Photocopy (of the Caste Certificate) was very much in question]

In this decision it was held:

“The High Court while considering this issue has noticed that the appellant failed to produce the original certificate issued by Arya Samaj, Madurai and further has not examined Santnakumar, who was supposed to have received and retained the original certificate issued by the Arya Samaj and the original records have not been summoned from Arya Samaj and no steps have been taken to summon the responsible person from Arya Samaj to prove that the appellant underwent conversion. Therefore, the claim made by her about her reconversion cannot be accepted. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.”
_{Note: It was an appeal from an Election petition and the Supreme Court allowed the appeal. The validity and genuineness of the Certificate was very much in question.}_{Therefore, the principles in RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548}_{(where the secondary evidence was marked without objection)}_{, was not attracted to this case (and it was not referred to also)}_.
Principle of law laid down in M. Chandra v. M. Thangamuthu is followed in Rakesh Mohindra v. Anita Beri, 2016 -16 SCC 483.

(e) H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240

[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – the Photocopy was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.]

It was held that the power of attorney was not proved in accordance with the terms of Sec. 65 of the Evidence Act, for the following –

The power of attorney had not been proved.
Original had never been filed before the Trial Court.
Only a photocopy of the same was shown to the respondent during cross-examination.
The respondent has only admitted his signature thereon.
He had never admitted its contents or genuineness.

It is held in H. Siddiqui v. A. Ramalingam, 2011-4 SCC 240, as under:

“In our humble opinion, the Trial Court could not proceed in such an unwarranted manner for the reason that the respondent had merely admitted his signature on the photocopy of the power of attorney and did not admit the contents thereof.”

It is added:

“More so, the court should have borne in mind that admissibility of a document or contents thereof may not necessary lead to drawing any inference unless the contents thereof have some probative value.”

(f) Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865.

[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – the accounts of the Plaintiff would not be proved by itself]

It is held that the documents do not prove themselves. It is also observed in this decision as under:

“15. The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs’ books of account became important because the plaintiffs’ accounts were impeached and falsified by the defendants’ case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs’ books would not have supported the plaintiffs.” (Quoted in: Vinod Jaswantray Vyas v. State of Gujarat, 2024-7 SCR 365.)

Other Important Decisions –

1. LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry);
2. Birad Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (document on date of birth).
3. Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796 (It is observed that mere marking as exhibit and identification of executant’s signature by one of witnesses does not prove contents of a document).
4. Vinod Jaswantray Vyas v. State of Gujarat, 2024-7 SCR 365 (mere marking of exhibit – letter – without the expert deposing about the opinion given therein would not dispense with the proof of contents).

3. IF ‘TRUTH’ IS IN ISSUE – Mere Marking Not Amount to ‘Waiver’

The fundamental principles as to proof of execution a document is that the execution has to be proved by proper evidence, that is by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue’ (Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745). But, in the facts and circumstances of each case, the court is at liberty to invoke its wisdom and fill certain gaps in evidence by applying ‘presumption’.

It is legitimate to say that this requirement as to proof of ‘truth’ is independent from inviting ‘proof of signature and handwriting’ in Sec. 67 to 71 of the Evidence Act. This proposition is clear from Sec. 67, which lays down the fundamental principles as to the proof of documents. Sec. 67 reads as under:

“67. Proof of signature and handwriting of person alleged to have signed or written document produced—If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”

Though proof of execution (dealt with in Sec. 67 to 71) is independent from proof as to ‘truth’ of contents of a document, proof as to ‘truth’ can be presumed by the court, in most cases, on ‘proof of execution’. It is more so, when a document is admitted without objection. Proof as to ‘truth’ is essential if ‘truth’ is in issue, or in dispute.

If ‘TRUTH’ is in issue, or in dispute, marking a document without objection, or mere proof of handwriting or execution,by itself, need not absolve the duty to prove the truth as to the contents of the documents. (Ramji Dayawala v. Invest Import, AIR 1981 SC 2085; Achuthan Pillai v. Marikar (Motors) Ltd., AIR 1983 Ker 81; Suresh v. Tobin, 2013-1 KerLT 293). Court has a duty to see that the statement of a witness gets independent corroboration, direct or circumstantial, in proper cases (Ahalya Bariha v. Chhelia Padhan, 1992 Cri.LJ 493).

In Ramji Dayawala v. Invest Import: AIR 1981 SC 2085, it us held as under:

“If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”

4. Admission of Contents – May Dispense with Proof; But Probative Value may be Less or Nil

The discretion vested with the court to take presumption; and to evaluate probative value.

It is well settled that when a party leads secondary evidence, the Court is obliged to examine the probative value of the document and its contents, and to decide the question of admissibility of the same [Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP, 2013-10 SCC 758].

Even when a document is technically admitted in court, the probative value thereof will always be a matter for the court to determine. That is, it is depended upon the nature of each case.

The probative value of Scene-Mahazar, Postmortem Report, Photocopy of a Registered Deed etc. without supporting legal evidence may be lesser. In such cases the court can refrain from acting upon such documents until regular evidence is tendered.

In Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758, it is held as under:

“The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”
[Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]

In Kaliya v. State of MP: 2013-10 SCC 758 our Apex Court also referred to H. Siddiqui v. A. Ramalingam, AIR 2011 SC 1492, and Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.

In Rakesh Mohindra v. Anita Beri, 2015 AIR (SCW) 6271, as regards mere admittance of secondary evidence, it is held:

“Mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.”

In Life Insurance Corporation of India v. Ram Pal Singh Bisen [2010-4 SCC 491], it is observed as under:

“26. We are of the firm opinion that mere admission of document in evidence does amount to its proof. In other words, mere marking of exhibit on a document does dispense with its proof, which is required to be done in accordance with law. …..
27. It was the duty of the appellants to have proved documents Exh.-A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would partake the character of admissible evidence in Court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”

The Calcutta High Court quoting Life Insurance Corporation of India v. Ram Pal Singh Bisen [2010-4 SCC 491] it is observed in Bajaj Allianz General Insurance Company v.Smt. Santa (2019-2 ACC 36) that ‘even if the document had been marked as Exhibit-A without objection, without a formal proof thereof in accordance with the provisions of the Evidence Act, such document lost its credibility and is of no probative value’.

Read Blog: 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act

Best Evidence Rule and ‘Evidence of High Probative Value‘

Though various kinds of secondary evidences are provided under Sec. 63, the ‘probative value’ of one kind (say, a photograph/photostat of an original document, as stated in Illustration (a) of Sec. 63) will definitely be higher when compared with another (say, oral account). The best evidence rule insists for evidence bearing high ‘probative value’.

In State of Bihar v. Radha Krishna Singh (AIR 1983 SC 684) it is observed as under:

“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”

Evidence in Old Transaction – Vigor in RECENT TRANSACTIONS could Not be EXPECTED

In Muthialpet Benefit Fund Ltd. v. V. Devarajulu Chetty, AIR 1955 Mad 455, it is held as under:

“7. To my mind, neither of the first two points is convincing because the first is based on the rather over-optimistic and facile profession of faith made in every minors suit that he the minor is going to win and to which the statistics of our Courts do not unfortunately lend any support and especially so in this case and in the circumstances set out above, which make out prima facie that the mortgagee public institution made proper and bona fide enquiry as to the existence of necessity and did all that was reasonable to satisfy itself as to the existence of such necessity. In such a case even if there was no necessity in fact or even if the money borrowed was not applied to meet the necessity, the alienation will be upheld. The recitals of necessity in the deed are admissible in evidence as admissions of the Manager or father and also amount to representation of necessity though in the case of RECENT TRANSACTIONS evidence aliunde*^* would be NORMALLY EXPECTED. These elementary propositions require no buttressing by citations (See Mulla, Hindu Law, Edn.10, p.285; Raghavachari: Hindu Law, Edn.3, p.335 and following; Mayne: Hindu Law, Edn.11, Re-print pp.474-475). Secondly, it is in the best interest of the mortgagors themselves to prevent the deterioration of the value of the corpus and market it into cash and keep the sale proceeds in Court pending and abiding the result of the suit.”
(*^*from other sources)

Read Blog: Best Evidence Rule in Indian Law

Secondary Evidence would be Admissible only in Exceptional Cases

In Kalyan Singh v. Chhoti, AIR 1990 SC 396, it had been observed as under:

“A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex.3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”

It is pointed out by our Apex Court in various decisions including M. Chandra v. M. Thangamuthu, 2010-9 SCC 712, that the production of primary document is the rule; the secondary evidence would be admissible only in exceptional cases. Primarily, to admit secondary evidence:

(i) there should be authenticated foundational evidence that the alleged copy is in fact a true copy of the original, and
(ii) the party concerned was genuinely unable to produce the original.

5. Court should allow to adduce proper evidence to prove documents

Besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts shows that the court has jurisdiction to require the party concerned to prove that document. It is evident from –

              • Sec. 58 of Evidence Act
              • O. XII, r. 2A Proviso, CPC and
              • Sec. 294 of the CrPC

Inasmuch as –

(a) mere marking of a document on admission will not amount to proof, or evidence of the contents of the document or its truth;
(b) the probative value of a document ‘marked without objection’ may be low or nil, for want of proper proof; and
(c) there may be a formal defect to the document for it is a secondary evidence and it is produced without adducing ‘foundational evidence’,

it is legitimate to say that before taking an adverse stance as to proof in these counts, the court should give an opportunity to the party who relies on the document to cure the deficiency.

Duty of the Court to Aid Fair Trial

As shown above, the Privy Council, in Padman v. Hanwanta, 1915 (17) BomLR 609: AIR 1915 PC 111, held, as regards objection as to the admissibility of a certified copy of a will without any objection, as under:

“11. … Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention.”

Defect for not producing a proper power of attorney being curable, in Haryana State Coop. Supply and Marketing Federation Ltd. v. Jayam Textiles, 2014 AIR SC 1926 (a case under Section 138 Negotiable instruments Act), the Apex Court gave opportunity to the petitioner to produce the authorization of Board of Directors. It is observed that the in Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850 it was held that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision.

This principle is iterated in following cases also:

F.A. Sapa v. Singora, (1991) 3 SCC 375;
H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217;
V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737;
Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261;
Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617; (observed that facta probanda (material facts) are to be set out in the pleadings and facta probantia (particulars or evidence) need not be set out in the pleadings);
Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196
(held that defective verification or affidavit is curable);
Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511;
Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740;
KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428

TIME TO RAISE OBJECTIONS

Before Trial: The objections as to the admissibility of documents can be placed on record, before trial (i) by raising them in pleadings, or (ii) by tendering positive statement (filing petition/ affidavit/ objection).

At the Trial: Two (apparently incongruent) propositions are seen strongly propounded as regards placing objections, at the trial –

right-at-the-time of tendering the same for exhibiting;
any time in trial (and not in appellate stage).

It is emphasised in Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, that the objection is to be taken before a document is marked as an exhibit and admitted in Court, as the mode of proof falls within procedural law.

Mode of Proof falls within Procedural Law

In Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, it is held as under:

“23. This Court in the opinion written by Justice S. H. Kapadia in Dayamathi Bai v. KM Shaffi, (2004) 7 SCC 107 has similarly held that objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. Moreover, objection is to be taken before the document is marked as an exhibit and admitted in Court.

Objection in Proper Time – Allows to Cure defects in Mode of Proof

It is held further in Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, as under:

24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of R.V.E. Venkatachala (Supra).”

Time to place Objection: To the pointed question, when the objection is to be placed (either at the time of marking, or at any time in trial), the following assertions may be the feasible answer:

First – raise objection while Tendering/Exhibiting the document;
Second – raise objection in cross examination of the witness through whom it is marked;
Third – place “objection” by filing an application, memo, affidavit etc. (at any time during trial); or
Fourth – place “objection” in the final argument in the trial court (to be reflected in the proceeding-paper or Judgment).
- Note: 1. The and fourth modalities can be invoked only if the right to object marking of document had not been expressly or impliedly waived.
- 2. If the validity or genuineness of the document itself is a subject matter of issue, no objection need be raised.
- 3. In a proper case, if objection as regards a document is already raised in pleadings, or tendered positive objection-statement (filing petition/ affidavit/ objection), specific objection may not be necessary.
- 4. In G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, it is held that in proper cases (failure to raise objection as regards stamp duty, for the senior counsel was not present when the document was marked) the Trial Courts have the authority to revisit and recall the process of admission in exercise of its inherent power saved by section 151 CPC.

Objections Cannot be Raised for the First Time in Appeal

Following decisions lay down that the objections cannot be permitted to be raised for the first time in appeal-

Pandappa v. Shivlingappa, 47 BLR. 962;
Padman v. Hanwanta, AIR 1915 PC 111;
Gopal Das v. Sri Thakurji, AIR 1943 PC 83;
Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655,
P. C. Purushottamman v. S. Perumal, AIR 1972 SC 608;
Rafia Sultan Widow of Mirza Sultan Ali Baig v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 GujLH 27; 1985-2 GujLR 1315;
R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple, (2003) 8 SCC 752;
Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873.

Odd View: Bipin Shantilal: Mark document tentatively, and Decide Objection in Final Judgment

It was observed by the Supreme Court in 2001 in Bipin Shantilal Panchal v. State of Gujarat (Three Judge Bench), AIR 2001 SC 1158, that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And, the Court directed as under:

“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.” (Quoted in: Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873; RVE Venkatachala Gounder v. Arulmigu , AIR 2003 SC 4548: (2003) 8 SCC 752)

Contra view to Bipin Shantilal

Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, spoke as to admissibility of

(i) documents (or material) and
(ii) oral evidence (questions).

Bipin Shantilal did not favour taking a final decision as to marking an objected document (and receiving objected questions), then and there.

Contra view taken as regards documents

The law laid down in Bipin Shantilal, as regards objection to marking documents (or material), had been (impliedly) reversed by RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.

Contra view taken as regards oral evidence

The view taken in Bipin Santilal as regards objection to recording oral evidence had been expressly varied, or reversed, by In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State Of Andhra Pradesh (Three Judge Bench), 2021-10 SCC 598.

In Re: To Issue Certain Guidelines Regarding Inadequacies

In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State Of Andhra Pradesh (Three Judge Bench), 2021-10 SCC 598, considered oral evidence (questions) and ruled that Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, stood modified (overruled), and directed as under:

“…….. Therefore, this court is of opinion that the view in Bipin Shantilal Panchal should not be considered as binding. The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness.”

Law does not favour Bipin Shantilal Panchal v. State of Gujarat

It is definite that the courts in India consistently follow RVE Venkatachala Gounder v. Arulmigu (Two Judge Bench), AIR 2003 SC 4548: (2003) 8 SCC 752, and Dayamathi Bai v. K.M. Shaffi (Two Judge Bench), AIR 2004 SC 4082: 2004- 7 SCC 107, declining Bipin Shantilal Panchal v. State of Gujarat (Three Judge Bench), AIR 2001 SC 1158.

In no subsequent case the Apex Court applied the dictum in Bipin Shantilal Panchal v. State of Gujarat. In State of NCT of Delhi v. Mukesh (Three Judge Bench), 2014-15 SCC 661, refuted to follow Bipin Shantilal Panchal observing as under:

“The decision referred to by the learned Counsel in the case of Bipin Shantilal Panchal [supra] has to be read and understood in that context.”

Marking a document ‘Subject to Objection’ (After applying mind)

Though the decision taken by a court to mark a document ‘subject to objection’ is improper, it appears, in a proper case, marking a document (with the rider) “subject to proof” may be a legitimate action – if it is a “decision” (after applying mind) ruled-down in In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State of Andhra Pradesh (supra). Nevertheless, a document can be marked (with the rider) “subject to proof/ objection” only if it is not possible to take a decision (in a summary manner) then and there; and the law does not favour the principles laid down in Bipin Shantilal Panchal v. State of Gujarat (defer the whole matter for decision in future).

SECONDARY EVIDENCE

Proof of Contents of Documents

Contents of documents can be placed before the court in two ways:

producing the documents in original
(by way of) secondary evidence.

Factual Foundation Must be Established (if No Admission)

The party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced.

As a general rule, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It is pointed out that there is obligation upon the courts to decide the question of admissibility of the secondary evidence of the documents produced, before making it by the proper endorsement thereon. See:

Rakesh Mohindra v. Anita Beri: 2015 AIR (SCW) 6271
H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492.

In H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240, as shown above, a copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and never admitted its contents or genuineness. Therefore, it was held that the power of attorney was not been proved. it is held as under:

“12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.
- (Vide: The Roman Catholilc Mission & Anr. v. The State of Madras & Anr., AIR 1966 SC 1457;
- State of Rajasthan & Ors. v. Khemraj & Ors., AIR 2000 SC 1759;
- Life Insurance Corporation of India & Anr. v. Ram Pal Singh Bisen, (2010) 4 SCC 491; and
- M. Chandra v. M. Thangamuthu & Anr., 2010-9 SCC 712.)”
“17. Therefore, it is the duty of the court to examine whether the documents produced in the court or contents thereof have any probative value”. (Quoted in: Nandkishore Lalbhai Mehta v. New Era Fabrics P.Ltd., 2015)

Secondary Evidence, Marked Without Objection – Effect

When the party gives in evidence a certified-copy, or other secondary-evidence, without proving the circumstances entitling him to give secondary evidence, the opposite party must raise his objection (if any) at the proper time.

The Privy Council in Padman v. Hanwanta, 1915 (17) BomLR 609: AIR 1915 PC 111, held as regards objection as to the admissibility of a certified copy of a will, as under:

“11. The defendants have now appealed to His Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being laid for its admission. No objection, however, appears to have been taken in the first Court against the copy obtained from the Registrar’s office being put in evidence. Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention.”

In case, objection is not raised at the relevant point of time, he is precluded from raising it at a belated stage. As shown above, it stands waived.

Document Marked Without Objection: Courts in India consistently follow RVE Venkatachala Gounder

RVE Venkatachala Gounder v. Arulmigu (R.C. Lahoti & Ashok Bhan, JJ.), AIR 2003 SC 4548: (2003) 8 SCC 752,considered the effect of marking a secondary evidence (photocopy of rent-note) without any objection. It is the well-established decisive leading decision in the following propositions of law.

Objection as to the irregularity of mode adopted for proving the document should be taken when the evidence is tendered;
Once the document has been marked as an exhibit, the objection cannot be allowed to be raised at any subsequent stage.
Failure to raise a prompt and timely objection amounts to waiver of that right.
The objection enables the court to apply its mind and pronounce its decision on the question of admissibility.
It is a rule of fair play for it would have enabled the party tendering the evidence to cure the defect by giving formal proof of a document.

Following earlier decisions were relied on in RVE Venkatachala Gounder v. Arulmigu (supra) :

The Roman Catholic Mission v. The State of Madras, AIR 1966 SC 1457;
Padman and Others v. Hanwanta, AIR 1915 PC 111;
P.C. Purushothama Reddiar v. S.Perumal, 1972 (2) SCR 646.

RVE Venkatachala Gounder v. Arulmigu (supra) held as under:

“17. The other document is the rent note executed by Defendant 2 in favour of the plaintiff. Here also the photocopy of the rent note was produced. Defendant 2 when in the witness box was confronted with this document and he admitted to have executed this document in favour of the plaintiff and also admitted the existence of his signature on the document. It is nobody’s case that the original rent note was not admissible in evidence. However, secondary evidence was allowed to be adduced without any objection and even in the absence of a foundation for admitting secondary evidence having been laid by the plaintiff.
18. …
19. ….
20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.
23. Since documents Exts. A-30 and A-34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photocopies, the originals of which were not produced.”

RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752, is referred to and quoted with approval in the following decisions:

Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;
Sonu @ Amar Vs State Of Haryana, 2017 AIR SC 3441; 2017-8 SCC 570;
Nandkishore Lalbhai Mehta v. New Era Fabrics Pvt. Ltd., 2015-9 SCC 755;
Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills, 2010-8 SCC 423;
Malay Kumar Ganguly v. Sukumar Mukherjee, 2009-9 SCC 221;
Directorate of Revenue v. Mohammed Nisar Holia, 2008 2 SCC 370;
Dayamathi Bai v. K. M. Shaffi, AIR 2004 SC 4082; 2004-7 SCC 107.

Courts to Admit Documents Without Proof

Section 163 of the Evidence Act, reads as under:

163. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect to a document used under Sec. 163, as under:

“The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits.”

It is noteworthy that Order XI rule 15 and Order XII rule 8 are the provisions in the CPC to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively). In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167 it was observed that Section 163 of the Evidence Act applies to Criminal Proceedings also.

Court cannot Ludicrously Throw-out Copy of a Document

Inasmuch as Indian law expressly declares and authorises –

(i) ‘admission’ is a mode of proof, inasmuch as ‘facts admitted need not be proved’ (Sec. 58, Evidence Act);
(ii) Sec. 136, Evidence Act permits to use a fact before proving it formally on “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”; and
(iii) it is the trite law accepted by the courts in India that –
- the court has jurisdiction to require the party concerned to prove a document in spite of marking it (under Sec. 58 of Evidence Act, O. XII, r. 2A Proviso, CPC and Sec. 294 of the CrPC), and
- the probative value of the document is the matter for the court,
it is not at all proper for the court to vociferously thwart or drum-out the copy of a document totally disregarding the rights of the parties conferred by the Evidence Act (to exhibit copy of the documents).

As mentioned above, the Courts in India consistently follow RVE Venkatachala Gounder (supra) as regards the rules for production of a secondary evidence. This decision considered the effect of marking a secondary evidence (photocopy of rent-note) without any objection.

If No Objection to the opposite side, Can a Photocopy of a (Relevant) Document be Marked?

Yes.

From RVE Venkatachala Gounder it is definite that the objection with respect to the objection for exhibiting a document is a matter primarily rested with the opposite party.

It would not be legitimate for the court to refrain from exhibiting a relevant document which could be received in evidence on the (express or implied) concession or admission of the opposite side (as regards mode of proof, including production of a photocopy), in the scheme of our Procedure Codes and Evidence Act.

As shown above, in RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752, it was held that when photocopies of the originals are admitted in evidence without objection, it cannot be rendered inadmissible.

In Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, our Apex Court considered admission of a photocopy of an official document, in the following factual matrix:

The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters.
The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable.
The photocopies were marked as exhibits without objection.
The respondents never questioned the genuineness of the same.
Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for nonproduction of the originals, they were rejected (by the High Court) without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers.

In this premises the Supreme Court held as under:

“This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”

Delhi High Court held in Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon), as under:

“…. it is conceded by the counsel for the appellants/defendants that before commencement of cross-examination of PW-1 and PW-2 there was no objection raised that the Will cannot be proved inasmuch as the Will only is a photocopy. Once no objection is raised to the mode of proof on account of lack of original, then now the objection cannot be raised to the mode of proof as the objection to the mode of proof stands waived in view of the ratio as laid down in the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752.”

Photocopy is a Reliable Secondary Evidence

It falls under Sec. 63(2) it being the product of ‘mechanical processes which in themselves insure the accuracy of the copy‘.

As regards Photocopy, it is laid down in Surinder Kaur v. Mehal Singh, 2014(1) RCR(Civil) 467 (P&H) as under:

“a) Photostat copy of a document can be allowed to be produced only in absence of original document.
b) When a party seeks to produce Photostat copy it has to lay the foundational facts by proving that original document existed and is lost or is in possession of opposite party who failed to produce it.
Mere assertion of the party is not sufficient to prove these foundational facts.
c) The objections as to non existence of such circumstances or non existence of foundational facts must be taken at earliest by the opposite party after the photostat copy is tendered in evidence.
d) When the opposite party raises objection as to authenticity of the Photostat copy its authenticity has to be determined as every copy made from a mechanical process may not be accurate. Both the requirements of clause (2) of section 63 are to be satisfied.
e) Allowing production of Photostat copy in evidence does not amount to its proof. Its probative value has to be proved and assessed independently. It has to be shown that it was made from original at particular place and time.
f) In cases where the Photostat copy is itself suspicious it should not be relied upon. Unless the court is satisfied that the Photostat copy is genuine and accurate it should not be read in evidence.
g) The accuracy of Photostat copy shall be established on oath to the satisfaction of court by the person who prepared such copy or who can speak of its accuracy.”
- Note: It appears that the proposition, ‘accuracy shall be established on oath’, is a surplusage (for, a photocopy, by itself, ‘insures the accuracy of the copy’ under Sec. 63, and the court is free to apply the presumptions under Sec. 114).

If No Objection, Photocopy can be Marked (as Secondary Evidence)

Thayyil Chandrasekharan v. Athikkotu Prasad , 2019 3 CurCC 297 (In the written-statement it had been stated that the original agreement was destroyed.)
Kishore Kumar Khaitan v. Praveen Kumar Singh, 10 Jul 2019 (Indiakanoon)
National Insurance Company Limited v. Dipannita Acharya, 2019 ACJ 1823.
Krishna Ponnuswamy v. Punitha Anand, 2018-1 MLJ 799.
Union of India v Rabindra Ch. Das, 2013-6 GauLJ 335; 2013 9 RCR(Civ) 624 (No objection raised, at the time of admitting the document.)

Is there Total Bar for Exhibiting Photocopy of a Sale Deed (Other Than a Certified Copy) under Section 65 clause (f)? Is Certified Copy of a Sale Deed Essential?

The answer is ‘No’.

The doubt arises from or ‘in terms of‘ clauses (e) and (f) of Sec. 65.

Sec. 65 clauses (e) and (f) read as under:

“(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence**.”

Sec. 65 further lays down –

“In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.”
- ** “(permitted) to be given in evidence“ propounds – giving copy in evidence without reference to or accounting for “original” (i.e., without saying “where the original is”).
- That is, under Sec. 65 clause (a) to (d), a copy can be given by a party to a proceeding if only any one of the conditions therein (original is with other side, original has been destroyed or lost, etc.) is satisfied; but, Sec. 65 (e) and (f) says that secondary evidence (certified copy) can be given in evidence even if original is with him; (or in other words, he can produce the secondary evidence – certified copy – without saying “where the original is” (i.e., without reference to “original” – such as original is with other side, original has been destroyed or lost, etc.).

By virtue of the above provisions in Sec. 65, it is often debated that ‘a certified copy’ of the Sale Deed ‘alone’, and “no other kind of secondary evidence, is admissible”. It is not well-founded; because,

(1) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a public document within the meaning of section 74” – referred to in clauses (e) of Sec. 65,and
(2) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence” (without reference to “original”) – referred to in clauses (f) of Sec. 65.

No (procedural) law permits production of ‘certified copy’ of a sale deed, in the court, without saying where the original is or it is lost (i.e., without laying the foundational evidence for the non production of the original).

Note: Sec. 57 of the Registration Act reads as under:

“57. Registering officers to allow inspection of certain books and indexes, and to give certified copies of entries —
(1)… (2) … (3) … (4) …
(5) All copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents.”

It is definite – the words, “shall be admissible for the purpose of proving the contents of the original” cannot be read as (or equated to): “certified copy … permitted by this Act, or by any other law in force in India to be given in evidence” (without reference to “original”).

Note:
The expression (in proof of the contents) in Sec. 77 of the Evidence Act makes the difference clear:
“77. Proof of documents by production of certified copies – Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”

Therefore, any kind of (admissible) secondary evidence of a sale deed can be given in evidence; and production of certified copy cannot be insisted. (If it falls under clause (e) or (f) of Sec. 65, certified copy ‘alone’ can be given – as secondary evidence.)

Following decisions considered both Sec. 57 of the Registration Act and Sec. 65 (e) & (f) Evidence Act and found that in the absence of a registered sale deed, a certified copy could be filed as secondary evidence. Though these decisions did not ponder on the point whether a certified copy ‘alone‘ (and “no other kind of secondary evidence“) can be filed, they definitely state that secondary evidence of a sale deed (or similar other deeds) can be given in evidence only when it is shown – the original is lost or not in a position to produce before the court (foundational evidence), as provided in Sec. 65 (a), (b) & (c). [That is, Sec. 65 (f) is not attracted.]

Puspa Dey v. Sukanta Dey, 2019-3 CalLT 206,
Upendra Rao v. M. K. Ammini, ILR 2017-1 (Ker) 466;
Om Parkash v. Ram Gopal, 2011-4 PLR 364;
Ismail Gafurbhai Vohra v. Kirit Bhagvatprasad Vyas, 2013-2 GLR 1230;
Sandeep v. State of Haryana, 2011-4 LawHerald 3507,
Kalyan Singh v. Smt. Chhoti, AIR 1990 SC 306,
Nani Bai v. Gita Bai Kom Rama Gunge, AIR 1958 SC 706.

Sale deed Copy permitted only after foundational evidence

Hence S. 65(f) not attracted.

In Datti Kameswari v. Singam Rao Sarath Chandra, AIR 2016 AP 112, it is held as under:

“Production and marking of a certified copy as secondary evidence of a private document (either a registered document like a sale deed or any unregistered document) is permissible only after laying the foundation for acceptance of secondary evidence under Clause (a), (b) or (c) of Section 65.”

In Om Parkash v. Ram Gopal alias Paali Ram alias Doojpuri Maharaj, 2011-4 PLR 364 (P&H) it is observed as inder:

“In this case original sale deed has not been filed. However as per case of petitioners-plaintiffs, the original has been lost and the same was not traceable, after the death of their father, hence, sufficient explanation has come on the record for not filing the original document.”

Referring Krishna Kishore Chowdhari v. Kishore Lal Roy, 14 IA 71 it is observed in G. Chikkapapanna v. Kenchamma, 1999-1 CivCC 611; ILR 1998 Kar 3450; 1998-5 KarLJ 360, it is held that the party concerned has to lay foundation and establish reason for non-production nor availability of original (registered) document.

(Inasmuch as it is necessary to show the reason for non production of original to produce a copy of a registered deed, it does not fall under Section 65(f); and therefore certified copy is not essential – any type of secondary evidence can be adduced in evidence.)

It is said in G. Chikkapapanna v. Kenchamma as under:

“38. In the case of Krishna Kishore, supra, their lordships referring to Section 65 of the Evidence Act, observed as under:
”There are however cases under the act in which secondary evidence is admissible even though the original is in existence, one of the cases is under Section 65, clause (e) when the original is a public document within the meaning of Section 74 and another under clause (f) when original is document of which certified copy is permitted by this act or any other law in force in british india to be given in evidence but no other kind of secondary evidence is admissible. “If then the anumati patra was a public document within the meaning of Section 74 of the Act, which in their lordships opinion it was not, no secondary evidence would have been admissible except a certified copy”.
As an anumati patra, even if registered, is not a public document, as held by the Privy Council so the settlement deed will stand on same footing, it also cannot be said to be a public document.”
40. The private settlement deed or a trust deed executed by an individual stand on some footing as receipt executed by an individual or individuals or Anumati patra and it remains a private document even after registration. The plaintiff relied on Exh. P-l and urged it to be copy of settlement deed creating trust, even if trust as urged, its original was registered one but it was not a public document vide Ravindra N. Das v Santosh Kumar.
41. That as regards clause (f) of Section 65, it will be applicable in cases where the original is one, the certified copy of which is permitted under the Evidence Act or any other law. Sections 76 and 77 of the Evidence Act reveal that under these sections, the certified copies of public documents have been made permissible and admissible to prove the contents of public documents or the parts of public documents of which the copies they purport to be.
42. That as found earlier, the settlement deed of 1933 is and has been only private document and did not become public document, merely because of its having been registered, as after registration, as held by the Privy Council, the document (original) is returned and does not form part of public record, vide, Gopal Das case, supra, and as per Section 61(2) of the Registration Act.
43. The learned Counsel for appellant referred to Section 57(5) of the Registration Act and urged that the section permits filing of certified copies and make the certified copies issued under Section 57 of the Registration Act, to be admissible to prove the contents of original documents as such certified copy of settlement deed of 1933, Exh. P-1 was admissible as secondary evidence under Section 65(f) of the Evidence Act. He urged that the Court below erred in law in holding that the same was not admissible without proof of loss of the original or without original of Exh. P-1 being accounted for.
44. If a case for filing secondary evidence is established or sbown to be covered by clause (e) or (f), secondary evidence is admissible or permissible in the form of certified copy of such a document beyond doubt as held in the case of Krishna Kishore, referred to above by the Privy Council, hut the question is what Section 57 of Registration Act provides and whether it can be said to be a case covered under Section 65(f) of the Evidence Act.
45. Section 57 of the Registration Act, provides that registering office have to allow the inspection of certain books and indexes as well as to have to, or have been authorised to, give certified copies of the entries made in such books as are referred to in Section 57 of the Registration Act. Sub-section (11) of Section 57 provides that Book Nos. 1 and 2 and index relating to Book No. 1 shall be subject to payment fee payable at all times be open to inspection by any person applying for inspection. It further provides that subject to Section 62 of the Registration Act, all persons who apply for the supply of copies of entries contained in such books shall be given the copies of entries in such books.
45-A. Sub-sections (2) and (3) of Section 57 provides for copies of entries in Books 3 and 4 and indexes relating thereto to be given to person referred therein only or in circumstances specified therein i.e., in the sub-section concerned.
46. Sub-section (5) of Section 57 provides that all copies given under this section shall be signed and sealed by the registering officers and shall be admissible for the purpose of proving the contents of the original documents.
47. The entries made in Book No. 1 or Book No. 2 etc., are only entries of books. May it contain a copy of original document, i.e., copied in the book concerned but the said entry by itself is not the original document. The entry may be a copy, in register or book, from the original deed itself, which original deed is, as per Section 61(2) of Registration Act, returned to person presenting it. So the copy of entry which is given under Section 57 is not the copy from original deed itself but the copy from the copy of deed only. Sub-section (5) of Section 57 makes provision for copy from copy of document given under Section 57(1), (2) and (3), admissible only for limited purpose namely of proving the contents of the original document. Such a copy cannot be termed to be certified copy of the original document, but a copy of the entry or of the (copy) of the document. It may be a secondary evidence but not covered by clause (f) of Section 65 of the Evidence Act.
48. In the case of Karuppama v Kaland Swami, Madras High Court laid it down as under.-
“Section 57 of the Indian Registration Act deals with among other things, with the grant of certain certified copies and sub-section (5) lays down that all copies given under that section shall be signed and sealed by registration officer and shall be admissible for the purpose of proving the contents of the original documents. But the law is that a certified copy of what has been copied in the books of the Registration is admissible to prove the contents of the original document only when a case is made out for the introduction of secondary evidence i.e., by proof of loss of the original or where the original is withheld by a party in whose possession it is or is presumed to be”.
49. Similar view has been expressed in the case of Badhawa Ram v Akbar Ali, by Hon’ble Mr. Justice Tek Chank, as he then was, as well as by the Division Bench of Nagpur High Court in the case of Kashinath Shankrappa v New Akol Cotton Ginning and Pressing Company, and also in the case of Gopal Das, supra, by the Privy Council, referred to above. The Punjab and Haryana High Court in the case of Paras Singh v Parkash Kaur, as well as Rajasthan High Court in the case of Motilal v Sardar Mal, have construed Section 57 of Registration Act, in the context of Section 65 of the Evidence Act on the same lines and way.
50. In the case of P. Ram Reddy v Land Acquisition Officer, their Lordships of the Supreme Court dealing with Section 51-A of the Land Acquisition Act and Section 57 of the Registration Act has been pleased to lay down:
“Certified copies of a registered document under Registration Act, 1908, but for the above provision (Section 51-A of the Land Acquisition Act) could have been only secondary evidence which could have been accepted by the Court when primary evidence relating to original documents were shown to be unavailable.
51. The observations made in the case of Nani Bai v Gita Bai Kom Rama Gunge, referred by learned Counsel for appellant are not of any assistance to appellant i.e., plaintiff. The material observations reveal that it only lays down that “the Sale deeds themselves are primary evidence of interest sold. If those sale deeds which are said to be registered document, were not available for any reasons, certified copies thereof could be adduced as secondary evidence, but no foundation has been laid in the pleading for the reception of other evidence which must always be a very weak character in place of the registered document evidencing those transactions”.
The above marked portion clearly reveals that before leading secondary evidence, such as the certified copy thereof, the party concerned has to lay foundation and establish reason for non-production nor availability of original document.
52. In the present case, in my opinion as clauses (e) and (f) of Section 65 of the Evidence Act are not applicable therefore, in order to produce Exh. P-1, the certified copy of entry under Section 57 of the Registration Act, as secondary evidence the plaintiff-appellant had to make out case of foundation to lead secondary evidence, but as held earlier plaintiff-appellant has failed to lay the foundation therefor.”

Public Document Lost; Any secondary evidence becomes admissible

‘Only Secondary Evidence Admissible’ Does Not Apply

In Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629; 2000-6 SCC 735it is held as under

“10. Thus it is to be seen that under sub-clause (c) of Section 65, where the original has been lost or destroyed, then secondary evidence of the contents of the document is admissible. Sub-clause (c) is independent of sub-clause (f). Secondary evidence can be led, even of a public document, if the conditions as laid down under sub-clause (c) are fulfilled. Thus if the original of the public document has been lost or destroyed then the secondary evidence can be given even of a public document. This is the law as has been laid down by this Court in Mst. Bibi Aisha and Others v. The Bihar Subai Sunni Majlis Avaqaf and Others , AIR 1969 SC 253. In this case a suit had been filed for setting aside a registered mokarrari lease deed and for restoration of possession of properties. The suit had been filed on behalf of a Waqf. The Original Waqf Deed was lost and an ordinary copy of the Waqf Deed was produced in evidence. The question was whether an ordinary copy was admissible in evidence and whether or not secondary evidence could be led of a public document. The Court held that under Section 65 clauses (a) and (c) secondary evidence was admissible. It is held that a case may fall both under clauses (a) or (c) and (f) in which case secondary evidence would be admissible. It was held that clauses (a) and (c) were independent of clause (f) and even an ordinary copy would, therefore, be admissible. As stated above the case that the original was no longer available in Court records and the certified copy was lost has not been disbelieved. Thus the ordinary copy of the earlier judgment was admissible in evidence and had been correctly marked as an exhibit by the trial Court.”

In Bibi Aisha v. Bihar Subai Sunni Majlis Avaqaf, AIR 1969 SC 253, it was held as under:

“Under Sec. 65(a) of the Evidence Act secondary evidence may be given of the existence, or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, and when after the notice mentioned in sec. 66, such person does not produce it. Where the case falls under s. 65(a) any secondary evidence of the contents of the document is admissible. In the present case the conditions of s. 65(a) were satisfied. The plain copy of the waqf was therefore admissible. On behalf of the appellant it was argued that cl. (f) of s. 65 was applicable and that as the certified copy of the deed dated August 20, 1827 was permitted by the Evidence Act to be given in evidence, a certified copy alone was admissible in evidence. There is no substance in this contention. If the case falls under clause (a) any secondary evidence of the document is admissible, though the case may also fall under clause (f). Clause (a) is not controlled by clause (f).
In the case of A Collision Between The Ava [(1879) I.L.R. 5 Cal. 568] a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted cl. (c) of sec. 65 and the failure to produce it after notice attracted cl. (a) Cl. (f) of sec. 65 was also applicable. Wilson J. ruled that a certified copy need not be produced and any secondary evidence was admissible. We agree with this decision. Wilson J. said:
“By s. 65 in cases under cls. (a) and (c) any secondary evidence is admissible; in cases under cls. (e) and (f) only a certified copy. The present case falls under cl. (a) or (c) and also under (f). In such a case which rule applies ? I think the words, ‘In cases (a), (c) and (d) any secondary evidence is admissible,’ are too clear and too strong to be controlled by anything that follows, and that, therefore, in this case any secondary evidence might be received.”

In Jupudi Kesava Raos v. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070, it was held, relying on Bibi Aisha v. Bihar Subai Sunni Majlis Avaqaf, AIR 1969 SC 253, that under Sec. 64 of the Evidence Act, a document must be proved by primary evidence. But, Sec. 65 of the Evidence Act allows secondary evidence as to the existence, condition or contents of a document in circumstances specified in Clauses (a) to (g).

In Chandreshwar Prasad Narain Singh v. Bisheshwar Pratab Narain Singh: AIR 1927 Patna 61 it was held as under:

“Mr. Sultan Ahmad, on behalf of the respondents, contended that the rule as to the production of any secondary evidence does not apply to the case of a public document, in which case, a certified copy of the document but no other kind of secondary evidence, is admissible. If this argument be well founded, then it is obvious that the Legislature has made no provision for cases in which the original is a record of a Court of justice, and, therefore, a public document, which has also been lost or destroyed. In my opinion, the rule laid down in Sec. 65 that a certified copy is the only secondary evidence admissible when the original is a public document does not apply where the original has been lost or destroyed.” (followed in: Bhola Prasad v. Nabi Rasul Mian2007-1 PLJR 752 – Pat)

From the above, it appears that the following observation in Bhola Prasad v. Nabi Rasul Mian, 2007-1 PLJR 752, is not correct.

“In a case of the present nature where the document produced is registered sale deed the case also gets covered by clause (f) of Sec. 65 under which when the original is a document of which a certified copy is permitted by the Evidence Act or any other law in force to be given in evidence, even a certified copy of the document, but no other kind of secondary evidence is admissible.”

Next Best Evidence Rule on Copy of a Sale Deed

Under the Rule of Best Evidence the law requires, production of the next best evidence if it is not possible to produce the best evidence. See the following:

G. Balamani v. Parimi Manga Devi, 2019-4 ALD 401; 2019-4 ALT 203; 2019-3 CivCC 590
Raghunath Ramnath Zolekar v. State of Maharashtra, 2013-1 Crimes(HC) 532
Biju Paul v. Nedungadi Bank Ltd. 2012-2 KerLT(SN) 113 (For creating equitable mortgage),
Balkar Singh v. State of Punjab, 2005 (1) RCR (Criminal) 576 : 2005 Cri LJ (NOC) 180 (the school record is the next best evidence in the absence of any entry in the office of Registrar of Births and Deaths.)
Jagdamba Tea Factory v. Parshotam Kishan, 2008-3 PunLR 388, 2008-3 RCR(CIVIL) 17 (Where no lease deed, the entries in the house-tax register, which was the next best evidence available, could very well be taken into consideration for determining the rate of rent.),
2008-1 RCR(RENT) 507 (Where there is no lease deed nor any receipt, the rate of rent could well be determined on the basis of house-tax register, which was the next best evidence available. Gurinder Singh v. Kundan Lal, 2005(1) RCR(Rent) 332 : 2005(2) CCC 128 was relied on where entries in the municipal house tax register was considered.)
Chiman Lal v. Datar Singh, 1998 CriLJ 267, 1997 (1) WLN 396.
M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456 (in the absence of the original deed of transfer the next best evidence of the owner’s title to the property is a certified copy of that document).
Ananthakrishnan v. K. G. Rangasamy (Mad), 2020-4 CTC 411; 2020-1 LW 355 (quoted: M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456)

In C. Assiamma v. State Bank of Mysore, 1992 -74 Com Cas 139, it is pointed out that, for the purposes of creating an equitable mortgage, the copy of a transfer-deed is not (ordinarily) a ‘document of title’, and that there may be cases where the original document is lost and there are no chances of that document being made use of for any purpose; and in such a circumstance the next best evidence of the owner’s title to the property would be a certified copy of that document.

Read Blog: Best Evidence Rule in Indian Law

No Petition Needed for Filing or Admitting Photocopy

Section 64 of the Evidence Act reads as under:

“64. Proof of documents by primary evidence: Documents must be proved by primary evidence except in the cases hereinafter mentioned.”

Our Apex Court held in Dhanpat v. Sheo Ram, (2020) 16 SCC 209, as under:

“20. There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.”
Note: 1. Some courts in India have taken the stand that Dhanpat v. Sheo Ram applies only when ‘foundation’ is available on record to grant permission to adduce secondary evidence, and an application for leading secondary evidence is not required only if the ‘foundation’ is laid in the plaint or evidence. It appears that this approach is not legitimate for several (obvious) counts.
2. It will be a too pedantic approach to say that a document produced in civil cases after prescribed time for production (after settlement of issues, under Order VII Rule 14 (3) CPC), without leave of the court must be rejected, callously, for it is imperative to produce documents only with ‘leave of the court’ after the prescribed time. It is not the scheme of the procedural laws in India.

In Satyam Kumar Sah v. Narcotic Control Bureau, 2019 SCC OnLine Del 8409, it is pointed out that Section 65 does not contemplate filing of any application or seeking prior permission of the court for leading secondary evidence; and that merely because an application under Section 65, Indian Evidence Act was filed and allowed, would not ipso facto make secondary evidence admissible, which is otherwise inadmissible.

Loss of Original: It is incumbent upon the party producing the secondary evidence to prove the loss of original under Sec. 65 Clause (c). In a suit for specific performance, in Hira v. Smt. Gurbachan Kaur, 1988 (2) PLR 173, photocopy of the suit agreement alone was produced. After beginning evidence it was submitted that original was lost and application was filed seeking permission to adduce copy. Besides the delay in submitting loss of original, the plaintiff did not state when and under what circumstance the original was lost. In these circumstances the High Court found that the denial of permission to lead secondary evidence, by the trial court, was justifiable. (See also: Gurditta v. Balkar Singh, 1989 (1) PLR 418; Sobha Rani v. Ravikumar– AIR 1999 P&H 21).

In Raj Kumari v. Lal Chand, 1994 (1) Civil Court Cases 477, an issue was raised as to whether the applicant was entitled to secondary evidence. Therefore, it was held that the loss of the document was not required to be proved before trial, on the application under Section 65 Evidence Act.

Note: It appears that in a proper case, in its very peculiar facts, it may be justified in non-suiting the plaintiff, taking a preliminary issue on non-production of original, or insufficiency of grounds for non-production of original; but, it appears, it cannot be taken as a general rule.

UNREGISTERED DOCUMENTS – Effect of Marking Without Objection

Under section 49 of the Registration Act, if a document required to be registered is not registered, it is not admissible in evidence ; and such unregistered document can only be used as an evidence of collateral purpose.

With respect to Unregistered (Necessarily Registrable) Documents it is held by the Apex Court in K.B. Saha and Sons Private Limited v. Development Consultant Ltd, (2008) 8 SCC 564: AIR 2008 SC (Supp) 850, as under:

“34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to here-in-above, it is evident that :
A document required to be registered is not admissible into evidence under section 49 of the Registration Act.
Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to section 49 of the Registration Act. ….”

In the light of the Supreme Court decision in K.B. Saha and Sons Private Limited , it appears that the observation of the Karnataka High Court in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed, is not applicable to unregistered (compulsorily registrable) documents.

However, the Calcutta High Court in Dipak Kumar Singh v. Park Street Properties (P) Limited, AIR 2014 Cal 167, distinguished K.B. Saha & Sons Private Limited, (2008) 8 SCC 564, and other decisions saying that ‘the question of admissibility of a document, which had been admitted in evidence, was not taken up for consideration’ in those decisions. The High Court relied on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655 (question as to admissibility on the ground that it has not been stamped), which held that once a document had been marked as an exhibit in a case and the trial had proceeded all along on the footing that the document was an exhibit in the case and had been used by the parties in examination and cross-examination of their witnesses, it was not open either to the trial court itself or to a court of appeal or revision to go behind that order.

The other decisions referred to and distinguished in Dipak Kumar Singh v. Park Street Properties (P) Limited (supra) are the following:
Ram Kumar Das v. Jagdish Chandra Deo, Dhabal Deb: AIR 1952 SC 23,
Satish Chand Makhan v. Govardhan Das Byas: (1984) 1 SCC 369,
Anthony v. K.C. Ittoop: (2000) 6 SCC 394,
Surya Kumar Manji v. Trilochan Nath: AIR 1955 Cal 495,
Kunju Kesavan v. M.M. Philip: AIR 1964 SC 164,
Prasanta Ghosh v. Pushkar Kumar Ash: 2006 (2) CHN 277.

INSUFFICIENTLY STAMPED DOCUMENTS

Two forceful propositions stood paradoxical

The following forceful propositions stood paradoxical and incongruent to each other-

1. Section 33 of the Stamp Act (both Indian Stamp Act and State Stamp Act) casts a duty on every authority including the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. There is a duty upon every Judge, under Sec. 35 of the Indian Stamp Act (Sec. 34 of the State Act), not to admit a document that is not duly stamped (even if no objection raised to mark it).
2. The court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection under Sec. 36 of the Indian Stamp Act (Sec. 35 of the State Act).
Note: This incongruity is pointed out by this author in the article “Law on Insufficiently Stamped Documents – Not to Admit Unstamped Documents Vs. Once Admitted, Cannot Question” (Published in 2023(1) KerLT, Journal Section).

The Law Applied in India – Once Admitted, Always Stand Admitted

The law applied in India, hitherto, invoking Sec. 35 of the (State) Act was the following –

Once an unstamped or insufficiently stamped instrument has been admitted in evidence, (even if mechanically or inadvertently), its admissibility cannot be contested at any stage of the proceedings.

Sec. 35 of the State Act (Sec. 36 of the Indian Stamp Act) reads as under:

“35. Admission of instrument where not to be questioned– Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.”

In Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655: 1962-2 SCR 333, it was observed as under:

“4…. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. … Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the (Indian) Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction.”

In Ram Rattan v. Bajrang Lal, (1978) 3 SCC 236, it was held as under:

“6. When the document was tendered in evidence by the plaintiff while in witness box, objection having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial Judge to apply his mind to the objection raised and to decide the objects in accordance with law. …. If after applying mind to the rival contentions the trial court admits a document in evidence, Section 36 of the (Indian) Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The court, and of necessity it would be trial court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting Section 36 [see Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655] . The endorsement made by the learned trial Judge that ‘Objected, allowed subject to objection’, clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted.”
Note: In Ram Rattan v. Bajrang Lal (supra) ‘objection’ as regards inadmissibility had been raised “as it was not duly stamped”; and this decision was read by our Courts so as to find it relevant only in cases where there was ‘objection’ by the ‘other side’.
See: Shyamal Kumar Roy v. Sushil Kumar Agarwal (S.B. Sinha & Dalveer Bhandari, JJ.), AIR 2007 SC 637; 2006-11 SCC 331 (It was held after referring Ram Rattan v. Bajrang Lal: “If no objection had been made by Appellant herein in regard to the admissibility of the said document, he, at a later stage, cannot be permitted to turn round and contend that the said document is inadmissible in evidence. Appellant having consented to the document being marked as an exhibit has lost his right to reopen the question. … The question of judicial determination of the matter would arise provided an objection is taken when document is tendered in evidence and before it is marked as an exhibit in the case.)

Unless “Judicial Determination”, Sec. 35 is Not Attracted

This long-stood concept, as regards unstamped or insufficiently stamped instrument, is relooked in the recent decision G. M. Shahul Hameed v. Jayanthi R. Hegde (Dipankar Datta, Pankaj Mithal, JJ.), AIR 2024 SC 3339.

It is held that sheer technicalities should not triumph over the legislative intent and the fiscal interests of the State. It is held as under:

“10. Despite the GPA having been admitted in evidence and marked as an exhibit without objection from the side of the appellant, we propose to hold for the reasons to follow that the Trial Court did have the authority to revisit and recall the process of admission and marking of the instrument, not in the sense of exercising a power of review under section 114 read with Order XLVII, CPC but in exercise of its inherent power saved by section 151 thereof, and that the other remedy made available by the 1957 Act was not required to be pursued by the appellant to fasten the respondent with the liability to pay the deficit duty and penalty.”
“12. Read in isolation, a literal interpretation of section 35 of the 1957 Act seems to make the position in law clear that once an instrument has been admitted in evidence, then its admissibility cannot be contested at any stage of the proceedings on the ground of it not being duly stamped. A fortiori, it would follow that any objection pertaining to the instrument’s insufficient stamping must be raised prior to its admission.
13. However, section 35 of the 1957 Act is not the only relevant section. It is preceded by sections 33 and 34 and all such sections are part of Chapter IV, tiled “Instruments Not Duly Stamped”. Certain obligations are cast by section 33 on persons/officials named therein. Should the presiding officer of the court find the instrument to be chargeable with duty but it is either not stamped or is insufficiently stamped, he is bound by section 33 to impound the same. Section 34 places a fetter on the court’s authority to admit an instrument which, though chargeable with duty, is not duly stamped. The statutory mandate is that no such instrument shall be admitted in evidence unless it is duly stamped.
14. The presiding officer of a court being authorised in law to receive an instrument in evidence, is bound to give effect to the mandate of sections 33 and 34 and retains the authority to impound an instrument even in the absence of any objection from any party to the proceedings. Such an absence of any objection would not clothe the presiding officer of the court with power to mechanically admit a document that is tendered for admission in evidence. The same limitation would apply even in case of an objection regarding admissibility of an instrument, owing to its insufficient stamping, being raised before a court of law. Irrespective of whether objection is raised or not, the question of admissibility has to be decided according to law. The presiding officer of a court when confronted with the question of admitting an instrument chargeable with duty but which is either not stamped or is insufficiently stamped ought to judicially determine it. Application of judicial mind is a sine qua non having regard to the express language of sections 33 and 34 and interpretation of pari materia provisions in the Indian Stamp Act, 1899 [1899 Act, hereafter] by this Court. However, once a decision on the objection is rendered – be it right or wrong – section 35 would kick in to bar any question being raised as to admissibility of the instrument on the ground that it is not duly stamped at any stage of the proceedings and the party aggrieved by alleged improper admission has to work out its remedy as provided by section 58 of the 1957 Act.
18. On the face of such an order, it does not leave any scope for doubt that on the date the GPA was admitted in evidence and marked as an exhibit, the Trial Court did not deliberate on its admissibility, much less applied its judicial mind, resulting in an absence of judicial determination. In the absence of a ‘decision’ on the question of admissibility or, in other words, the Trial Court not having ‘decided’ whether the GPA was sufficiently stamped, section 35 of the 1957 Act cannot be called in aid by the respondent. For section 35 to come into operation, the instrument must have been “admitted in evidence” upon a judicial determination. The words “judicial determination” have to be read into section 35. Once there is such a determination, whether the determination is right or wrong cannot be examined except in the manner ordained by section 35. However, in a case of “no judicial determination”, section 35 is not attracted.
“21. We may not turn a blind eye to the fact that the revenue would stand the risk of suffering huge loss if the courts fail to discharge the duty placed on it per provisions like section 33 of the 1957 Act. Such provision has been inserted in the statute with a definite purpose. The legislature has reposed responsibility on the courts and trusted them to ensure that requisite stamp duty, along with penalty, is duly paid if an unstamped or insufficiently stamped instrument is placed before it for admission in support of the case of a party. It is incumbent upon the courts to uphold the sanctity of the legal framework governing stamp duty, as the same are crucial for the authenticity and enforceability of instruments. Allowing an instrument with insufficient stamp duty to pass unchallenged, merely due to technicalities, would undermine the legislative intent and the fiscal interests of the state. The courts ought to ensure that compliance with all substantive and procedural requirements of a statute akin to the 1957 Act are adhered to by the interested parties. This duty of the court is paramount, and any deviation would set a detrimental precedent, eroding the integrity of the legal system. Thus, the court must vigilantly prevent any circumvention of these legal obligations, ensuring due compliance and strict adherence for upholding the rule of law.”

Outcome – G. M. Shahul Hameed v. Jayanthi R. Hegde

Following are the outcome of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339.

To attract the bar to question the marking of the document under Section 35 (State Act), the instrument must have been “admitted in evidence” upon a ‘judicial determination‘, “irrespective of whether objection is raised or not“.
The words “judicial determination” have to be read into Section 35.
If “no judicial determination” (or if the document is mechanically or inadvertently marked), Section 35 is not attracted.
In proper cases (such as the senior counsel was not present when the document was marked) the Trial Courts have the authority to revisit and recall the process of admission in exercise of its inherent power saved by section 151 CPC.
Once there is such a judicial determination, whether it is right

Prior to G. M. Shahul Hameed v. Jayanthi R. Hegde (supra) the determinative point considered in various court decisions (as regards the ‘bar to question the marking of the document’) was “objection” from the ‘opposite party’. But, now, for the first time, by virtue of this decision (G. M. Shahul Hameed v. Jayanthi R. Hegde) what is decisive is ‘judicial determination‘, “irrespective of whether objection is raised or not“.

No Objection to Marking (Unstamped Document); If Court sees Deficiency, it should bring notice of it to Counsel

In T.C. Lakshamanan v. Vanaja, ILR 2011-3 (Ker) 228; 2011-3 KHC 86; 2011-3 KLT 347, it is pointed out by the Kerala High Court as under:

“There was no case for the respondent that before marking Ext.A1 any objection was raised as to the admissibility of Ext.A1. Since the affidavit was filed in lieu of chief-examination, through which documents were sought to be received in evidence, before starting cross examination the trial court has to record that an affidavit has been filed in lieu of chief examination and that such and such documents have been marked. It is not to be done mechanically. The Court has to apply its mind while marking the documents to ensure that those documents have been properly admitted in evidence. Simply because the counsel appearing for the other side did not raise any objection the Court is not absolved of its duty to see whether the marking of the documents was done correctly and whether any inadmissible document was sought to be admitted in evidence. If the Court finds that any inadmissible document, especially a document which cannot be admitted in evidence as it is unstamped or insufficiently stamped, is sought to be admitted, it should be brought to the notice of the counsel appearing for the parties and an order should be passed with regard to the same. It is not a case where the documents were tentatively marked, subject to objection regarding the admissibility and the ruling as to the admissibility of the same happened to be deferred, as it warranted a detailed argument. The Apex Court in the decision in 2000 (1) SC 1158 (Bipin Shantilal Panchal v. State of Gujarat) has held that such a procedure can be resorted to. Therefore, though document can be admitted tentatively reserving ruling on the admissibility to a later stage, in the case on hand no such objection was raised; on the other hand, it is argued by the learned counsel for the respondent that questions were put to PW1 with regard to the relevancy and other aspects of that document treating that document as having been properly admitted.”

Unstamped document cannot be looked at even for any collateral purpose

Privy Council in Ram Rattan v. Parma Nath, AIR 1946 PC 51, held that section 35 of the Indian Stamp Act prohibited the unstamped (or inadequately stamped) document from being looked at even for any collateral purpose, as it enacts that no instrument chargeable with duty shall be admitted in evidence ‘for any purpose’. The unstamped (or inadequately stamped) document becomes admissible on payment of penalty under Stamp Act or on payment of the stamp duty after impounding.

In Omprakash v. Laxminarayan, (2014) 1 SCC 618, the Apex Court observed as under:

“From a plain reading of the aforesaid provision (S. 35 of the Stamp Act), it is evident that an authority to receive evidence shall not admit any instrument unless it is duly stamped. An instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with penalty. As we have observed earlier, the deed of agreement having been insufficiently stamped, the same was inadmissible in evidence. The court being an authority to receive a document in evidence to give effect thereto, the agreement to sell with possession is an instrument which requires payment of the stamp duty applicable to a deed of conveyance. Duty as required, has not been paid and, hence, the trial court rightly held the same to be inadmissible in evidence.”

The Apex Court upheld the observation of the MP High Court in Writ Petition No. 6464 of 2008, overruling the impugned judgment (Laxminarayan v. Omprakash 2008 (2) MPLJ 416). The MP High Court had observed as under:

“To put the record straight, the correctness of the impugned judgment (Laxminarayan & Ors. v. Omprakash & Ors., 2008 (2) MPLJ 416) came up for consideration before a Division Bench of the High Court itself in Writ Petition No. 6464 of 2008 (Man Singh (deceased) through Legal Representatives Smt. Sumranbai & Ors. v. Rameshwar) and same has been overruled by judgment dated January 22, 2010. The High Court observed as follows:
- “8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. In the matter of Laxminarayan (supra), the learned Single Judge with due respect to his authority we don’t think that he did look into the legal position but it appears that he was simply swayed away by the argument that as the defendant was denying the delivery of possession, the endorsement/recital in the document lost all its effect and efficacy.
- 9. It would be trite to say that if in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don’t think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from Sections 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility. With all humility at our command we over-rule the judgment in the matter of Laxminarayan (supra).”
We respectfully agree with the conclusion of the High Court (Writ Petition No. 6464 of 2008) in this regard.
In view of what we have observed above, the order of the High Court (Laxminarayan v. Omprakash 2008 (2) MPLJ 416) is unsustainable and cannot be allowed to stand.”

Unstamped or Insufficiently Stamped Pro-note

Unstamped or insufficiently stamped promissory note cannot be marked in evidence. The weight of authority is on the side that says it is incurable. Hence no secondary evidence can also be lead on the same. It cannot be used for collateral purpose also. But the creditor can prosecute a suit upon ‘original consideration’.

Admissibility, one thing; and Probative Value, quite another

In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed:

“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”

If there is a dispute regarding age, the Supreme Court, in State of Punjab Vs. Mohinder Singh, AIR 2005 SC 1868, held that the date of birth available in the School Admission Register has more probative value than the horoscope. The probative value of FIR, Scene-Mahazar, Post-Mortem Report, photocopy of a Registered Deed etc., by itself, will be lesser. In such cases the court can refrain from acting upon such documents until substantive or regular evidence is offered, by examining the proper witness.

In Om Prakash Vs. State of Punjab, 1993(2) CLR 395, and Jora Singh Vs. State of Punjab, 1984(2) Crimes 837, it has been held that an entry in the school leaving certificate regarding date of birth of a student is not a conclusive proof or high ‘probity evidence’ because it is a matter of common knowledge that the date of birth given at the time of the admission of a boy or girl in a school is seldom correct and more often than not the age given is less than the actual age of the child. (See also: C. Doddanarayana Reddy Vs. C. Jayarama Reddy: AIR 2020 SC 1912; Commissioner of Central Excise And Service Tax v. M/S. Sanjivani Non-Ferrous Trading: AIR 2019 SC 203.)

Substantive Evidence and Evidence for Corroboration & for Refreshing Memory.

A Post-Mortem Report (Ganpat Raoji Suryavanshi v. State of Maharashtra, 1980 Cr. L.J. 853), Wound Certificate or Commission Report in a former case is not a substantive evidence. Doctor or Commissioner can refresh memory (Sec. 159, Evid. Act) with reference to the document. Similarly, mere marking of a Scene Mahazar, without examining the Investigating Officer who prepared it, will not render substantive aid to the prosecution case.

In Rameshwar Dayal v. State of U.P., AIR 1978 SC 1558, referring to Inquest Report, Site Plans etc., it is held by the Supreme Court, as follows:

“That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under Section 162 CrPC except for the limited purpose mentioned in that section.”

[See also: Munshi Prasad Vs. State of Bihar,(2002) 1SCC 351; State of Haryana v. Ram Singh, (2002) 2SCC 426; Vijay Paul v. State of Delhi: 2015 SC 1495; Mohanan v. State of Kerala: 2011(4) KLT 59.]

A ‘Certificate’ or ‘Expert Opinion’ is NOT Per Se Admissible

A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. Unless presumption can be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate can be taken as proved unless its contents are proved in a formal manner.

This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.

Unless the expert is examined in the court, his opinion cannot be relied on. (State of Maharashtra vs. Damu, AIR 2000 SC 1691). Opinion or report of a finger print expert is not a substantive evidence. Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record (Musheer Khan Vs. State of M.P, 2019-7 SCC 781; AIR. 2010 SC 3762).

Our Apex Court held in Dharmarajan v. Valliammal, 2008 (2) SCC 741, that ‘a certificate issued by the Tahsildar cannot be relied on without examining the Tahsildar who issued the same’. It is referred to in Pankajakshan Nair v. Shylaja, ILR 2017-1 Ker 951.

What is ‘Certificate’, in Law

A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. If presumption cannot be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate or report can be taken as proved unless its contents are proved in a formal manner. (This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.)

Documents used for Contradicting

Credit of a witness can be impeached under Sec. 155 (3) of the Evidence Act with reference to his previous statements. Sec. 145 is the provision to cross examine a witness with regard to his previous writing. Sec. 145 reads as under:

“145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

Documents used for Corroboration

Courts adjudicate the issues before it based on substantive evidence. In several cases it may be unusual that no direct evidence comes forth; for example, sexual offences, conspiracy, etc. In some cases certain corroborative evidence, to the already placed substantive evidence, may assure confidence to the minds of judges. Section 156 of the Evidence Act lays down that such testimonies can be brought into evidence. It is beyond doubt that such an evidence should also be an admissible one.

Section 156 of the Evidence Act reads as under:

“156. Questions tending to corroborate evidence of relevant fact, admissible.
When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.
Illustration A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed. Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.”

Conclusion

It is definite: it is not at all proper for the court to vociferously thwart the copy of a document (secondary evidence) totally disregarding the following rights conferred by the Evidence Act –

(i) ‘admission’ is a mode of proof, inasmuch as ‘facts admitted need not be proved’ (Sec. 58, Evidence Act); and
(ii) Sec. 136, Evidence Act permits to use a fact before proving it formally on “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”.

It is equally important –

(i) the court has jurisdiction to require the party concerned to prove a document in spite of marking it (under Sec. 58 of Evidence Act, O. XII, r. 2A Proviso, CPC and Sec. 294 of the CrPC); and
(ii) evaluation of the probative value of evidence (for the adjudicatory function) is the prerogative of the court.

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Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion

Saji Koduvath, Advocate, Kottayam

Abstract:

No Binding Precedent if relevant statutory provision was Not considered; It Must be ‘Ratio Decidendi’ also.

Ratio Decidendi Is Binding Precedent: Mere Casual Expressions – Not of Much Avail.

Ratio decidendi
               •➧ Ratio decidendi alone is the Binding Precedent.
               •➧ Ratio decidendi is statements of principles of law.
               •➧ Ratio decidendi is the vital element in the decision.
           •➧ Ratio decidendi literally means “reason for deciding”.
               •➧ Ratio decidendi is the essence, and not every observation.
               •➧ Ratio Decidendi is declaration of the law in a speaking order.
            •➧ Ratio Decidendi is the Legal Principles Guiding the Decision.
               •➧ Ratio decidendi alone binds under Article 141 of the Constitution.
              •➧ What is binding is discernable Ratio and the Principle; not, Conclusion.
              •➧ A case is only an authority for what it decides, and not from what logically follows from it.
             •➧ It is important to Read and analyse Entire Judgment, and the ratio decidendi is to be isolated.
              •➧ Words in a Judgment are Not to be Interpreted as a Statute; Words in it are Not to be Taken Literally.
              •➧ The abstract ratio decidendi (ascertained on a consideration of the judgment) alone has the force of law.
             •➧ For, the Legal Principles Guiding the Decision constitute ‘Ratio Decidendi’, it is always necessary to see what were the facts.

Precedents
              •➧ A Case is only an Authority for what it Actually Decides.
              •➧ Decision Applicable Only to Facts Cannot be a Binding Precedent.
              •➧ Binding Precedent Helps in Promoting Certainty and Consistency.
              •➧ A decision is available as a precedent only if it decides a question of law.
              •➧ An order made merely to dispose of the case cannot have the value or effect of a binding precedent.
              •➧ No Binding Precedent if a decision is without taking into account the statutory provision or if it is wrong in law.
              •➧The precedential value is attached only to orders which are preceded by a detailed judgment.

Obiter Dicta
              •➧ Obiter dictum is the passing expression or opinion in a judgement.
              •➧ The obiter dicta of the Supreme Court are taken with considerable weight.
              •➧ In India, obiter dictum of a High Court may have to be followed by the lower courts in its jurisdiction.

Per Incuriam
              •➧ ‘Per incuriam’ is used to denote findings out of ignorance of law.

Stare decisis
              •➧ Stare decisis is a legal doctrine that requires courts to follow precedents

Common law
              •Common law is the body of unwritten law, based upon precedents, the previous decisions.
              •➧ Common law delved precedents; whereas the civil law system dwelled upon codified system of law.
              •➧ The Courts in India apply the common law, especially, in the arena where there are no enacted Civil Laws to apply.

Article 141 – Supreme Court Decisions Bind on all Courts

Article 141 of the Constitution states that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. What is binding under Article 141 is the ratio decidendi of the judgment.

Decisions of High Courts bind all courts within their respective jurisdiction. But, rulings of other High Courts have only persuasive value. These principles are based on judicial discipline.

What is binding is ‘Ratio and the Principle’; not, Conclusion

Ratio decidendi literally means “reason for deciding”.

In B. Shama Rao v. Union Territory of Pondicherry, AIR 1967 SC 1480, it was observed that a decision is binding not because of its (final) conclusion but with regard to its ratio and the principle laid down therein. (Referred to in: Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC).

Stare Decisis

The Latin term, Stare decisis, means – “to stand by that which is decided.” It is accepted as a legal doctrine that requires courts to follow precedents, the previous decisions. The doctrine of stare decisis is based on public policy. The basis of Article 141 of the Constitution is the doctrine of stare decisis.

In Raj Narain Pandey v. Sant Prasad Tewari (1973 (2) SCR 835 , H.R. Khanna, J. observed as under:

“In the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should normally be adhered to and not disturbed. A different view would not only introduce and element of uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation. As observed by Lord Evershed M.R. in the case of Brownsea Haven Properties v. Poole Corpn., there is well established authority for the view that a decision of long standing on the basis of which many persons will in the course of time have arranged their affairs should not lightly be disturbed by a superior court not strictly bound itself by the decision.” (quoted in: Mishri Lal v. Dhirendra Nath, AIR 1999 SC 2286, 1999-4 SCC 11)

The principles of `Stare Decisis’ is explained in Halsbury’s Laws of England as under:

“Apart from any question as to the Courts being of co-ordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts of higher authority than the court establishing the rule, even though the court before whom the matter arises afterwards might not have given the same decision had the question come before it originally. But the supreme appellate Court will not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain, and no general course of dealing be altered by the remedy of a mistake”. (quoted in: Mishri Lal v. Dhirendra Nath, AIR 1999 SC 2286, 1999-4 SCC 11)

This doctrine is described in Corpus Juris Secundum as under:

“Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts, it is not universally applicable.” (quoted in: Mishri Lal v. Dhirendra Nath, AIR 1999 SC 2286, 1999-4 SCC 11)

In Mishri Lal v. Dhirendra Nath, after quoting Halsbury’s Laws of England and Corpus Juris Secundum it is pointed out as under:

“Be it noted however that Corpus Juris Secundum, adds a rider that “previous decisions should not be followed to the extent that grievous wrong may result; and, accordingly, the courts ordinarily will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous. The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result.”

No Binding Precedent if relevant statutory provision was Not considered; It Must be ‘Ratio Decidendi’ also

In Union of India v. Maniklal Banerjee, AIR 2006 SC 2844, the Apex Court has held as under:

“It is now well-settled that if a decision has been rendered without taking into account the statutory provision, the same cannot be considered to be a binding precedent. This Court, in Pritam Singh, while exercising its discretionary jurisdiction, might have refused to interfere with the decision. The same, therefore, did not constitute any binding precedent.” (Referred to in: Hameeda Begum v. Champa Bai Jain (Arun Misra, J.), ILR 2009 MP 2328; 2009-3 MPLJ 472)

The Supreme Court in Jayant Verma v. Union of India, (2018) 4 SCC 743, quoted the dissenting judgement of A.P. Sen, J. in Dalbir Singh v. State of Punjab, (1979) 3 SCC 745, with approval :

“54. This question is answered by referring to authoritative works and judgments of this Court. In Precedent in English Law by Cross and Harris (4th edn.), ‘ratio decidendi’ is described as follows: “The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.”

In State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647, wherein after relying on British authorities it was held:

“13….A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein, nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury L.C. said in Quinn v. Leathem [[1901] AC 495]:
“Now before discussing the case of Allen v. Flood, [1898] AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it.”

The Supreme Court, in Krishena Kumar v. Union of India, 1990 (4) SCC 207, said as under::

“19. The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain “propositions wider than the case itself required”. This was what Lord Selborne said in Caledonian Railway Co. v. Walker’s Trustees [(1882) 7 App Cas 259 : 46 LT 826 (HL)] and Lord Halsbury in Quinn v. Leathem [1901 AC 495, 502 : 17 TLR 749 (HL)]. Sir Frederick Pollock has also said :
“Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision.”

Binding Precedent- In Nutshell

No Binding Precedent if relevant STATUTORY PROVISION was Not considered. [Union of India v. Maniklal Banerjee, AIR 2006 SC 2844]

Where no consideration was given to the question, the decision cannot be said to be binding; and precedents SUB SILENTIO – Without Arguments – are of NO MOMENT. [A-One Granites v. State of U.P., 2001-3 SCC 537]

A decision is available as a precedent only if it DECIDES a QUESTION OF LAW. [State of Punjab v. Surinder Kumar, AIR 1992 SC 1593: 1992-1 SCC 489]. Not facts. [Prakash Chandra Pathak v. State of Uttar Pradesh, AIR 1960 SC 195]

RATIO DECIDENDI is Binding Precedent: Mere Casual Expressions – Not of Much Avail.[ Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555; State of Maharashtra v. Bhakti Vedanta Book Trust, AIR 2013 SC 1667; 2013-4 SCC 676; Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher, AIR 2013 SC 3757; 2013 5 SCC 627; Arun Kumar Aggarwal v. State of Madhya Pradesh, AIR 2011 SC 3056; 2014-13 SCC 707).

For Binding Precedent, finding must be ‘RATIO DECIDENDI’ (necessary to the decision); and Not obiter dicta. [Allen in ‘Law in the Making’; Quoted in: Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543; Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543)]

Court’s order is binding on the parties under res judicata; the RATIO DECIDENDI is binding on other Courts as binding precedent. [The Modern English Legal System (4th Edition) by Smith, Bailey and Gunn (Sweet & Maxwell, 2002), pages 518-519]

What is of the essence in a decision is its ratio and not every observation found therein. [State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647; Union of India v. Dhanwanti Devi, 1996-6 SCC 44; Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC)

The doctrine of precedent mandates that an exposition of law must be followed and applied. [State of U.P. v. Ajay Kumar Sharma, 2016-15 SCC 289].

Res judicata bars raising the same issue. Judicial precedent is not concerned with issues between parties. (Spencer Bower, Turner and Handley’s Commentary on the Doctrine of Res Judicata (Butterworths: London, Edinburgh, Dublin – 1996, pages 8 and 9)

Res judicata pertains to the parties; precedent refers to a binding declaration of law that applies to courts or authorities. [Indian Broadcasting and Digital Foundation v. Telecom Regulatory Authority of India, 01 Nov 2024, 2024 KER 80988].

A decision on the ‘construction of that document’ can operates as a judicial precedent against one though he was not a party to that litigation (Sahu Madho Dass v. Mukand Ram, 1955 AIR SC 481).

Ratio Decidendi Is Binding Precedent: Casual Words, Not of Much Avail

In Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555, it is pointed out as under:

“Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the Court, is not of much avail to the respondents.”
(Quoted in: State of Maharashtra v. Bhakti Vedanta Book Trust, AIR 2013 SC 1667; 2013-4 SCC 676;
Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher, AIR 2013 SC 3757; 2013 5 SCC 627;
Arun Kumar Aggarwal v. State of Madhya Pradesh, AIR 2011 SC 3056; 2014-13 SCC 707)

A Full Bench of the Allahabad HighmCourt, in Indian Ceramic House, Langra-Ki-Chowki, Agra v. Sales Tax Officer, II Sector, Agra : 1970 SCC OnLine All 193, observed as under:

“A Judgment is authoritative only as to that part of it which is considered to have been necessary to the decision of the case, and not that part which was not necessary to its decision. The first is called ‘ratio decidendi’. Which is binding as a precedent. The other called ‘obiter dicta’ cannot be treated as a binding precedent though the opinion so expressed is entitled to respect.” (Quoted in Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543)

Allen in ‘Law in the Making’ said as under:

“Any judgment of any Court is authoritative only as to that part of it, called the ‘ratio decidendi’, which is considered to have been necessary to the decision of the actual issue between the litigants. It is for the Court, of whatever degree, which is called upon to consider the precedent, to determine what the true ‘ratio decidendi’ was…………..Judicial opinions upon such matters, whether they be merely casual, or wholly gratuitous or (as is far more usual) of what may be called collateral relevance, are known as ‘obiter dicta or simply ‘dicta’, and it is extremely difficult to establish any standard of their relative weight.” (Quoted in : Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543). (Quoted in : Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543).

A deliberate decision after hearing on a question constitute a precedent

A three Judge Bench of our Apex Court, in Union of India v. Dhanawanti Devi, (1996) 6 SCC 44, held as under:

“9. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates –
(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts;
(ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of the above.
A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.

10. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents……” (Quoted in: Vishal N. Kalsaria v. Bank of India, 2016-3 SCC 762)

Common Law Delves Precedents; Civil Law Dwells upon Codified Law

Common law is the body of customary law, based upon previous judicial decisions. The common-law courts in England, emerged in the Middle Ages, applied this system in the adjudication of disputes, in the King’s Court. Common law delves precedents. The Courts in India apply the common law, especially, in the arena where there are no enacted Civil Laws to apply. Civil law system dwells upon codified system of law. Judicial precedents are also looked to see the interpretation of law and legal principles.

Questions which are Essentially Questions of Fact, Cannot be Cited as Precedents

In State of Punjab v. Surinder Kumar, AIR 1992 SC 1593: 1992-1 SCC 489, it is laid down as under:

“A decision is available as a precedent only if it decides a question of law.”

In Prakash Chandra Pathak v. State of Uttar Pradesh, AIR 1960 SC 195, it is held as under:

“Learned counsel for the appellant cited before us a number of reported decisions of this Court bearing on the appreciation of circumstantial evidence. We need not refer to those authorities. It is enough to say that decisions even of the highest court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases which must rest in the ultimate analysis upon their own particular facts.”

A case is only an authority for what it decides, and not from what logically follows from it (Ram Krishan Ram Nath v. Janpad Sabha, AIR 1967 SC 1073)

Ratio Decidendi – Basis of Reasons and Principles Underlying a Decision

It is the discernable ratio decidendi which forms a precedent and not the final order in the judgment (Sanjay Singh v. Uttar Pradesh PSC, Allahabad, 2007-3 SCC 720).

Decision Applicable Only to Facts Cannot be a Binding Precedent

The basis of reasons and principles underlying a decision is ratio decidendi. It is distinct from the ultimate relief granted in a given case. Therefore, the decision applicable only to the facts of the case cannot be treated as a binding precedent.

Essence in a Decision is its Ratio and Not Every Observation

The Supreme Court (B.V. Nagarathna, J.)observed in Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC), as under:

“22. Further, the precedential value of an order of the Supreme Court which is not preceded by a detailed judgment would be lacking inasmuch as an issue would not have been categorically dealt with. What is of essence in a decision is its ratio and not every observation found therein, nor what logically follows from the various observations made therein.”

Law laid down by SC – if only there is a Speaking Order; Not by Dismissal In Limine

It was added, in Secundrabad Club v. CIT – V, 17-08- 2023, as under:

“23. Another important principle to be borne in mind is that declaration of the law by the Supreme Court can be said to have been made only when it is contained in a speaking order, either expressly or by necessary implication and not by dismissal in limine.”

Law ‘Declared’, and ‘found or made’

While speaking about judicial precedents, in DTC v. DTC Mazdoor Congress Union, AIR 1991 SC 101, Mukherji, CJ., laid down that the expression ‘declared’ is wider than the words ‘found or made’. The latter expression involves the process, while the former expresses the result. (Referred to in: Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC).

Ratio Decidendi alone is Binding Precedent; It is statements of principles of law

The Supreme Court observed further in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC), as under

“13. It is a settled position of law that only the ratio decidendi of a judgment is binding as a precedent.”

B.V. Nagarathna, J. held (in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) as under:

“According to the well-settled theory of precedents, every decision contains three basic ingredients:
.(i) findings of material facts, direct and inferential. An inferential finding of fact is the inference which the Judge draws from the direct or perceptible facts;
(ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of (i) and (ii) above.
For the purposes of the parties themselves and their privies, ingredient (iii) is the material element in the decision, for, it determines finally their rights and liabilities in relation to the subject-matter of the action. It is the judgment that estops the parties from reopening the dispute. However, for the purpose of the doctrine of precedent, ingredient (ii) is the vital element in the decision. This is the ratio decidendi. It is not everything said by a judge when giving a judgment that constitutes a precedent. The only thing in a judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi.”

Statement of Law Applied to the Legal Problems Raised

In the leading case of Qualcast (Wolverhampton) Ltd. vs. Haynes, 1959 AC 743, it was laid down that the ratio decidendi may be defined as a statement of law applied to the legal problems raised by the facts as found, upon which the decision is based. The other elements in the decision are not precedents. A judgment is not binding (except directly on the parties to the lis themselves), nor are the findings of fact. This means that even where the direct facts of an earlier case appear to be identical to those of the case before the court, the judge is not bound to draw the same inference as drawn in the earlier case. (Referred to in: Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC).

Legal Principles Guiding the Decision Constitute ‘Ratio Decidendi’ or Binding Precedent

B.V. Nagarathna, J. added (in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) as under:

“The legal principles guiding the decision in a case is the basis for a binding precedent for a subsequent case, apart from being a decision which binds the parties to the case. Thus, the principle underlying the decision would be binding as a precedent for a subsequent case. Therefore, while applying a decision to a later case, the court dealing with it has to carefully ascertain the principle laid down in the previous decision. A decision in a case takes its flavour from the facts of the case and the question of law involved and decided.However, a decision which is not express and is neither founded on any reason nor proceeds on a consideration of the issue cannot be deemed to be law declared, so as to have a binding effect as is contemplated under Article 141, vide State of Uttar Pradesh vs. Synthetics and Chemicals Ltd. (1991) 4 SCC.”

Binding Precedent Helps in Promoting Certainty and Consistency

The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to individuals as to the consequences of transactions forming part of daily affairs.

Read Entire Judgment – to discern reasoning of a judgment

B.V. Nagarathna, J. further observed (in Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) as under:

“The reasoning of a judgment can be discerned only upon reading of a judgment in its entirety and the same has to be culled out thereafter. The ratio of the case has to be deduced from the facts involved in the case and the particular provision(s) of law which the court has applied or interpreted and the decision has to be read in the context of the particular statutory provisions involved in the matter. Thus, an order made merely to dispose of the case cannot have the value or effect of a binding precedent.
19. What is binding, therefore, is the principle underlying a decision which must be discerned in the context of the question(s) involved in that case from which the decision takes its colour. In a subsequent case, a decision cannot be relied upon in support of a proposition that it did not decide. Therefore, the context or the question, while considering which, a judgment has been rendered assumes significance.”

Words in a Judgment are Not to be Interpreted as a Statute

B.V. Nagarathna, J. continued (in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) as under:

“21. In the context of understanding a judgment, it is well settled that the words used in a judgment are not to be interpreted as those of a statute.

Words in a Judgment – Rendered Contextually; Not be Taken Literally

B.V. Nagarathna, J. pointed out (in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) as under:

“This is because the words used in a judgment should be rendered and understood contextually and are not intended to be taken literally.”

No implication – a decision is an authority for what decided

“Further, a decision is not an authority for what can be read into it by implication or by assigning an assumed intention of the judges and inferring from it a proposition of law which the judges have not specifically or expressly laid down in the pronouncement. In other words, the decision is an authority for what is specifically decides and not what can logically be deduced therefrom.”

Salmond Bifurcates Precedents – Authoritative and persuasive precedents

Authoritative precedents are binding on courts and a judge is bound to follow it. Thus it will be a legal sources of law. Persuasive precedents have persuasive value alone. A judge need not follow it if finds reasons for the same; nevertheless, he cannot ignore it. Judgments of foreign courts, decisions of the Privy Council etc. are examples for the same.

Obiter Dicta

Obiter dictum is the passing expression or opinion, or something said by the way, in a judgement, which is not essential to the decision. As laid down in Halsbury, Vol 22, p. 797, in England obiter dicta are not binding on any court. But, in India, obiter dictum of a High Court may have to be followed by the lower courts in its jurisdiction. The obiter dicta of the Supreme Court are taken with considerable weight. ‘Normally, even an obiter dictum is expected to be obeyed and followed (Sarwan Singh Lamba v. Union of India, AIR 1995 SC 1729).

Obiter Dictum of the Supreme Court is binding under Article 141

B.V. Nagarathna, J. further observed (in Secundrabad Club v. CIT – V, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC), as under:

“20. As against the ratio decidendi of a judgment, an obiter dictum is an observation by a court on a legal question which may not be necessary for the decision pronounced by the court. However, the obiter dictum of the Supreme Court is binding under Article 141 to the extent of the observations on points raised and decided by the Court in a case. Although the obiter dictum of the Supreme Court is binding on all courts, it has only persuasive authority as far as the Supreme Court itself is concerned.”

Per Incuriam

‘Per incuriam’ is used to denote judgments or findings that are delivered out of ignorance of some statute or rule.

It is pointed out in Govt. of Andhra Pradesh v. B. Satyanarayana Rao, AIR 2000 SC 1729: (2000) 4 SCC 262 as under:

“Rule of per incurium can be applied where a Court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.”

In Banwari v. Haryana State Industrial and Infrastructure Development Corporation Limited (HSIIDC), Neutral Citation: 2024 INSC 951, B.R. Gavai, K.V. Viswanathan, JJ., held as under:

20. In this respect, we may gainfully refer to the observations of a Constitution Bench of this Court in the case of National Insurance Company Limited v. Pranay Sethi and Others (2017) 16 SCC 680. The relevant paragraphs of the judgment read as under:
- “27. We are compelled to state here that in Munna Lal Jain , the three-Judge Bench should have been guided by the principle stated in Reshma Kumari which has concurred with the view expressed in Sarla Verma or in case of disagreement, it should have been well advised to refer the case to a larger Bench. We say so, as we have already expressed the opinion that the dicta laid down in Reshma Kumari being earlier in point of time would be a binding precedent and not the decision in Rajesh.
- 28. In this context, we may also refer to Sundeep Kumar Bafna v. State of Maharashtra [Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558] which correctly lays down the principle that discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench. There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of same strength. Though the judgment in Rajesh case was delivered on a later date, it had not apprised itself of the law stated in Reshma Kumari but had been guided by Santosh Devi . We have no hesitation that it is not a binding precedent on the co-equal Bench.”
It can thus be seen that, this Court in unequivocal terms has held that an earlier decision of a Bench of particular strength would be binding on the subsequent Benches of this Court having the same or lesser number of judges.”

A “collateral or incidental” finding would not ordinarily be res judicata.

If only finding is “Necessary”, then only it is “Directly and Substantially” in issue

In Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350 the Supreme Court held that to attract res judicata on an earlier finding, the matter must have been directly and substantially in issue and that the finding on an issue came “collaterally or incidentally” would not ordinarily be res judicata. It was pointed out that if only the issue was “necessary” to be decided for adjudicating on the principal issue and had actually been decided, then only it would have to be treated as “directly and substantially” in issue; and that it is also necessary that the judgment was in fact based upon that decision.

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General

Does the Law on ‘Monitoring (Police) Investigation’ by the Magistrate Require Deliberation?

Saji Koduvath, Advocate, Kottayam.

Abstract

Part I – Powers of the Magistrate to order/direct investigation
               •➧ The CrPC / BNSS empowers the Magistrate to order or direct investigation (by police) under the following provisions-
                             §1. S. 155(2) CrPC / S. 174(2) BNSS,
                            § 2. S. 156(3) CrPC / S. 175(3) BNSS,
                            §3. S. 202(1) / S. 225(1) BNSS.

Part II – SUPREME COURT held : Magistrate Can ‘MONITOR‘ the Investigation

               •➧ In Sakiri Vasu v. State of U.P., 2008-2 SCC 409, it is held that the Magistrate has very wide powers to ensure a proper investigation and for this purpose he can monitor the investigation. This decision is not uniformly followed.

Part III – CRITICISM

               •➧ The CrPC / BNSS does not give powers to the Magistrate to “monitor” the investigation or to ‘Return’ a Final Report, to police, for ‘reinvestigation’ or ‘further investigation’. Once a Final Report is filed, the Magistrate has to apply his mind under S. 202 CrPC / S. 225(1) BNSS – to decide whether to proceed with it or not.

              •➧ After taking cognizance, the Magistrate cannot go back to the pre-cognisance stage – S. 156(3) CrPC / S. 175(3) BNSS; and, S. 173(8) CrPC / S. 193(9) BNSS authorises (only) the police to make further investigation.

Part IV – LEGISLATIVE INTENT AS TRANSPIRED IN BNSS, 2023

               •➧ The parliament revamped and recast the Procedure Code. Despite the discordant views of the Courts in India, on powers of Magistrate, no change is made to the relevant provisions relating to the same. It speaks volume.

Taken from: What is COGNIZANCE and Application of Mind by a Magistrate

Part I

Powers the Magistrate to order/direct investigation

The CrPC/BNSS empowers the Magistrate to order/direct investigation (by police) under the following provisions-
                             • 1. S. 155(2) CrPC / S. 174 BNSS – noncognizable cases,
                             • 2. S. 156(3) CrPC / S. 175(3) BNSS – cognizable cases,
                             •3. S. 202(1) CrPC / S. 225(1) BNSS – for deciding whether there are sufficient grounds for proceeding. [Note: S. 173(8) CrPC / S. 193(9) BNSS allows (only) the police to make further investigation.]

Relevant Changes in BNSS from CrPC

CrPC	BNSS
Section 155: Information as to non-cognizable cases and investigation of such cases (1). ….. (2). No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.	Section 174. [No Change to Sub-Sec. (2)]
Section 156: Police Officer’s power to investigate cognisable case. (1) … (2) …… (3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.	Section 175 (3) (No Substantial Change to this sub-Section.) Section 175 (3) reads as under: Any Magistrate empowered under section 210 may, after considering the application supported by an affidavit* made under sub-section (4) of section 173, and after making such inquiry as he thinks necessary and* **submission made in this regard by the police officer**, order such an investigation as above-mentioned.
Section 202 Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192 may, if he thinks fit, ……. postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Provided that …	Section 225 [No Substantial Change to this sub-Section]
Section 173(8) (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-Section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding, such evidence in the form prescribed; and the provisions of Sub-Sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-Section (2).	S. 193(9) [No Substantial Change to this sub-Section]

Part II

SUPREME COURT : Magistrate Can ‘MONITOR‘ the Investigation

In Sakiri Vasu v. State of U.P., 2008-2 SCC 409 (Markandey Katju, J.), while dealing with the scope of Section 156(3) Cr.P.C., held that the Magistrate can monitor the investigation of police; and it can direct a proper investigation if an application under Section 156(3) is filed. It is held as under:

“11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation. …..
13. The same view was taken by this Court in Dilawar Singh v. State of Delhi (JT vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC. Criminal Appeal No. 102 of 2011 Page 4 of 8 14. Section 156(3) states:
The words “as above mentioned” obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the police station. ….
15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha [(1980) 1 SCC 554 : 1980 SCC (Cri) 272 : AIR 1980 SC 326] (SCC : AIR para 19).
17. In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. …..
27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself).”

Sakiri Vasu v. State of U.P. is quoted and followed in:

XYZ v. State of Madhya Pradesh, 2022 AIR SC 3957; 2023-9 SCC 705,
M. Subramaniam v S. Janaki, 2020-16 SCC 728,
Vinubhai Haribhai Malaviya v. State of Gujarat, AIR 2019 SC 5233,
Hamant Yashwant Dhage v. State of Maharashtra, AIR 2016 SC 814.

By the Implied Power, Magistrate is the Whole Sole Authority to Monitor

In Dr. Kuldeep Kaushik v. State of U.P. , 2016 SCC OnLine All. 722, it is found – by the implied power the magistrate is the Whole Sole Authority to Monitor the Investigation. An instance of monitoring is pointed out in this decision. It held as under:

“It can be inferred that there is no express power to the magistrate regarding the monitoring of the investigation but under section 156 of the Cr.P.C., that implied power is there and magistrate is having whole sole authority to monitor the investigation and in case investigation is not going on proper or in fair manner in that case, magistrate is even having authority to interfere in the investigation. ….
This court is certainly of the view that magistrate is all empowered to monitor the investigation and in case it is required then proper direction may also be issued and if in view of the Code certain papers that are being filed by the accused to be sent to the Investigating Officer, that right can very well be given to the accused, although magistrate will refrain from expressing any opinion regarding the papers and further accused can also not claim that papers may be taken into consideration by the Investigating Officer and after taking all those papers, opinion should be found by the Investigating Officer and only then the wanting report be submitted. …
Had applicant tried to submit the papers before the Investigating Officer and had he refused for taking the papers into consideration, only then the right of accused could have accrued for praying the magistrate to direct the Investigating Officer for a proper investigation under Section 156 Cr.P.C.”

There is ‘Alternate remedy’ to approach the Magistrate

In Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhages, (2016) 6 SCC 277, it is observed as under:

“2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.
3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.
4. In view of the settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156(3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court.”

Further investigation by Police – under Sec.173(8) Cr PC/ S. 193(9) BNSS

Under 173(8) CrPC / S. 193(9) BNSS, a police officer can carry on further investigation. (It does not authorise the Magistrate to make such an order.) Police should seek formal permission from the Court for such further investigation, as held in Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762.

In Vinubhai Haribhai Malaviya v. State of Gujarat (RF Nariman, J.), AIR 2019 SC 5233, it is observed as under:

“When Section 156(3) of CrPC states that a Magistrate empowered under Section 190 of CrPC may order such an investigation, such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of investigation contained in Section 2(h).”

In Union Public Service Commission v. S. Papaiah, 1997-7 SCC 614, it was observed as under:

“The Magistrate could, thus in exercise of the powers under Section 173(8) CrPC direct the CBI to ‘further investigate’ the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the ‘new’ report to be submitted by the investigating officer would be governed by sub- sections (2) to (6) of Section 173 CrPC.”
(Quoted in: Vinubhai Haribhai Malaviya v. State of Gujarat (RF Nariman, J.), AIR 2019 SC 5233; Central Bureau of India v. Hemendhra Reddy (J.B. Pardiwala, JJ.)

Part III

CRITICISM :

The Magistrate, u/s 156(3) CrPC / S. 175(3) BNSS, cannot– (i) monitor or (ii) direct re-investigation. Similarly, Magistrate cannot Order further investigation under Section 173(8) CrPC / S. 193(9) BNSS also.

It is definite –

The CrPC / BNSS does not specifically say it.
As per the CrPC / BNSS, ‘investigation’ is particularly destined to Police; and power of inquiry is assigned to Magistrate.

It appears –

The logic given in Sakiri Vasu [on “such an investigation“] does not seem convincing. Sec. 156 / S. 175 BNSS deals with a sporadic act of requiring investigation; and no further direction is contemplated (till a final report is filed by the Police).
The CrPC / BNSS does not give a power to the Magistrate to “monitor” the investigation. (If it was really intended, or the scheme was, to convey a ‘wide power’ including monitoring, it would have been stated in the Code/Sanhita itself.)
The power of Magistrate to order ‘further investigation’ is vested only in Sec. 202 CrPC / S. 225 BNSS. It cannot be made under Sec. 156(3) / S. 175(3) BNSS or Sec. 173(8) CrPC / S. 193(9) BNSS.
- Note: Sec. 156(3) / S. 175(3) BNSS deals with the power of Magistrate to direct investigation of cognizable offences by police.
- Sec. 173(8) CrPC / S. 193(9) BNSS does not authorise the Magistrate to make an order for further investigation. (It authorises the the police officer alone.)
The power for ‘Ordering Proper Investigation’ (by police) may be a matter for the High Court under Article 226 of the Constitution. The ‘grievance’ on investigation cannot be slipped-down to a magistrate, as laid down in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhages (supra) as an ‘alternate remedy’.
The Magistrate derives powers to deal with (or take cognizance of) the facts which constitute an offence, under Clauses (a) to (c) of Sec. 190(1) of the CrPC / S. 210 BNSS. It is on the following –
- (a) upon receiving a complaint of facts which constitute such offence;
- (b) upon a police report of such facts;
- (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
Once a Final Report is filed, the Magistrate has to apply his mind – to decide whether to proceed with it (that is, to issue summons/warrant under Sec. 204 CrPC / S. 227 BNSS) or not. At this stage, if the Magistrate finds it proper to take further evidence or conduct further investigation, he has to invoke Sec. 202 CrPC / S. 225 BNSS (and, he cannot go back to Sec. 156 / S. 175(3) BNSS).
It is for the following –
(i) after getting the police report, the magistrate has to take cognizance of offences, under Sec. 190 CrPC / S. 210 BNSS, if he decides to proceed.
(ii) after taking cognizance on a police report, if the Magistrate finds it proper to take further evidence or conduct further investigation (to decide whether or not there is sufficient ground to proceed against accused), only enabling provision in the CrPC is Sec. 202 / S. 225 BNSS .
(iii) after taking cognizance, the Magistrate cannot go back to the pre-cognisance stage, Sec. 156(3) / S. 175(3) BNSS.
(iv) Sec. 202 CrPC / S. 225 BNSS expressly provides for taking further evidence or conducting further investigation by the Magistrate, after taking cognizance on a police report also.**
_{[** Note: It is not confined to “Complaint”. The term used is not mere “complaint”. It can also be a ‘complaint of an offence’ in a Charge also. It is clear from the words in Sec. 202 CrPC / S. 225 BNSS – “on receipt of a complaint of an offence of which he is authorised to take cognizance the Magistrate can ‘either inquire into the case himself or direct an investigation to be made by a police officer'” ]}
Under Sec. 202 CrPC / S. 225 BNSS , the Magistrate is required to act upon “receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Sec. 192“; and he can exercise following powers –
- “enquire into the case himself or
- ordering further investigation, through police or any other person”
Note: Sec. 192 is in Chapter XIV, Conditions Requisite for Initiation of Proceedings; and Sec. 202 CrPC is in Chapter XV, Complaints to Magistrates. But, Sec. 202 CrPC deals with a matter “made over to him under Sec. 192 CrPC”. It can include a Police Report.
Therefore, it is clear that the “Receipt of a complaint of an offence of which he is authorised to take cognizance” [in Sec. 202 CrPC / S. 225 BNSS ] is used in wider sense. It includes Police Report (See: Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252).
In other words, ‘complaint of an offence’, “made over to him under section 192“, stated in Sec. 202 CrPC / S. 225 BNSS , being refers to a Police Report (made over) also, it is clear – “complaint of an offence” [in Sec. 202 CrPC / S. 225 BNSS ] is used in a wider sense (and it is noteworthy – the term used is not mere “complaint”).
Sec. 192 says: “Any Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to any competent Magistrate …” (It is not ‘Complaint’ alone.)
In short, Magistrate can ‘enquire into the case himself’ or ‘order further investigation’, upon a police report [Refer Report or Charge], which refers to “complaint of an offence of which he is authorised to take cognizance” (without accepting the Police Report, as such) under Sec. 202 CrPC / S. 225 BNSS .
Power of Magistrate under S. 156(3) / S. 175(3) BNSS is Limited, for he cannot travel into the area of merit of the case (it is to be done in trial). Similarly, the scope of S 202 CrPC / S. 225 BNSS is also limited for it is only for helping the Magistrate to decide whether or not there is sufficient ground to proceed – that is, if ‘prima facie’ ground, the Magistrate has to proceed.
There is no specific provision that allows the Magistrate to give specific directions as to investigation (to police) in ‘further investigation‘ also.
Concisely, the Code/Sanhita does not allow or direct the Magistrate to “give directions” or to “monitor” the investigation (while it is done by the police).

The above views can be supported by Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252.

(Note: This decision is not followed in subsequent decisions – Vinubhai Haribhai Malaviya v. State of Gujarat (RF Nariman, J.), AIR 2019 SC 5233, Union Public Service Commission v. S. Papaiah, 1997-7 SCC 614, etc.; and it is observed that Magistrate could, under Section 173(8) CrPC / S. 193(9) BNSS, direct ‘further investigation’.

Police Investigation u/Sec. 156(3) CrPC & 202(1) CrPC / S. 175(3) BNSS & S. 225(1) BNSS – Two Operate in Distinct Spheres

In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252, it is pointed out as under:

“17. Section 156(3) occurs in Chapter XII, under the caption: “Information to the Police and their powers to investigate”; while Section 202 is in Chapter XV which bears the heading: “Of complaints to Magistrates”.
The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the precognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. ….. But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). …… On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation “for the purpose of deciding whether or not there is sufficient ground for proceeding”. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.” (Followed in Tula Ram v. Kishore Singh (1977) 4 SCC 459; and Quoted in Anand Kumar Pandey v. State of U. P. , 2020-1 All.CR 899)

S. 156(3) / S. 175(3) BNSS – Power of Magistrate, Limited

In Anju Chaudhary v. State Of U.P., 2013 (6) SCC 384 (Madan B. Lokur, Swatanter Kumar JJ.), it is pointed out as under:

“38. Thus, the Magistrate exercises a very limited power under Section 156(3) and so is its discretion. It does not travel into the arena of merit of the case if such case was fit to proceed further.” (Quoted in: Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023-2 Crimes(SC) 384.)

S. 202 CrPC / S. 225 BNSS – Power of Magistrate, Limited

In Mohd. Yousuf v. Afaq Jahan, 2006-1 SCC (Cri.) 460, laid down the relevant principles under Sec. 202 CrPC as under:

“9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. “or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.”
10. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.”

Magistrate can Take Cognizance even if Police Report is – No Case Made Out

In Jitender Mehta v. Shivani Mehta, (M.K. Hanjura, J.), AIR OnLine 2018 J & K 546; 2018 Kash LJ 918, it is held as under:

“23. The position is, thus, clear that when a Magistrate receives police report under Section 173(2), he is entitled to take cognizance of an offence even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and other material collected during investigation and form his own opinion independently without being bound by the conclusions arrived at by the investigating agency and take cognizance under Section 190(1)(b) of the Code and direct the issue of process to the accused.”

Part IV

LEGISLATIVE INTENT AS TRANSPIRED IN BNSS, 2023 :

The Parliament revamped and recast the Procedure Code. Despite the discordant views of the Courts in India, on powers of Magistrate, to order reinvestigation and ‘monitoring investigation’, no change is made to the relevant provisions relating to the same. It speaks volume.

Conclusion

The key question emerges, in the light of the divergent views (expressed by the Apex Court itself) discussed here, is – whether the Magistrate should have the authority to ‘monitor’ the Police?

The answer depends on two points –

First, what are the provisions (or scheme) declared in the CrPC/BNSS as regards the powers of the Magistrate; and
Secondly, are the Police incompetent and unreliable, and must be monitored by Magistrates; and are the Magistrates “unerringly impeccable” (in evaluating Police reports/analyses)?

As regards the first point, the law indicates – it does not install the Magistrate in an exalted position. But, it may be true, our Apex Court has reposed faith in judiciary, as it has found, from experience, some restraints, upon the Police, are essential. Thereby the law laid down by our Apex Court may be in-tune-with-times.

As regards the second point, it is, definitely, not correct at all to impute that Police is susceptible to be guided by power brokers and purloined by the political functionaries. It is more definite that the attribution of imprudence to the class of Magistrates is absolutely wrong.

In short, clear and precise laws are essential. Authoritative legislation duly deliberated by our Parliament’s wisdom will be universally accepted; and it alone can resolve the disputes in this arena.

End Notes

Section 155: Simplify the paragraph.

Information as to non-cognizable cases and investigation of such cases
(1). When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, the informant to the Magistrate.
(2). No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3). Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4).Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

Section 156:

Police Officer’s power to investigate cognisable case.
(1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognisable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.

Section 190:

Cognizance of offences by Magistrates:
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try.

Section 191:

Transfer on application of the accused:
When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.

Section 192:

Making over of cases to Magistrates:
(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to any competent Magistrate subordinate to him.
(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.

Section 200

Examination of complainant:
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate;
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses, if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192;
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

Section 202

Postponement of issue of process.
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192
- may, if he thinks fit,
- and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction
postpone the issue of process against the accused, and
- either inquire into the case himself or
- direct an investigation to be made by a police officer or by such other person as he thinks fit,
for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made, –
- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
- (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath :
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an officer-in-charge of a police station except the power to arrest without warrant.

Section 204

Issue of process.
(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be –
(a) a summons case, he shall issue his summons for the attendance of the accused, or
(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.

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General

Section 202 CrPC Enquiry

Taken from: What is COGNIZANCE and Application of Mind by a Magistrate

Jojy George Koduvath

Abstract

               •➧ The CrPC empowers the Magistrate to order/direct investigation (by police) under the following provisions-
                             • 1. S. 155(2) – non-cognizable cases,
                             • 2. S. 156(3) – cognizable cases,
                            •3. S. 202(1) – for deciding whether there are sufficient grounds for proceeding. [Note: S. 173(8) allows (only) the police to make further investigation.]

               •➧ The CrPC does not give powers to the Magistrate to “monitor” the investigation. (If it was really intended, or the scheme of the CrPC was, to convey such a ‘wide power’ to the Magistrate, it would have been stated in the Code itself.)

               •➧ Once a Final Report is filed by the police, ‘further investigation’ can be ordered by the Magistrate, only u/S. 202 CrPC. It cannot be made under Sec. 156(3) or Sec. 173(8). Because, Sec. 156(3) deals with the power of Magistrate to direct (only once) investigation of cognizable offences by police; and, Sec. 173(8) authorises (only) the police to make further investigation.

               •➧ Once a Final Report is filed, the Magistrate has to apply his mind – to decide whether to do with it (that is, to issue summons/warrant under Sec. 204) or not. At this stage, if the Magistrate finds it proper to take further evidence or conduct further investigation, he has to invoke Sec. 202 (and, he cannot go back to Sec. 156).
It is for the following –
•*(i) after getting the police report, the magistrate has to take cognizance of offences, under Sec. 190, if he decides to proceed against the accused.
•*(ii) after taking cognizance on a police report, if the Magistrate finds it proper to take further evidence or conduct further investigation (to decide whether there is sufficient ground to proceed against accused), only enabling provision in the CrPC is Sec. 202.
•*(iii) after taking cognizance, the Magistrate cannot go back to the pre-cognisance stage, Sec. 156(3).
•*(iv) Sec. 202 expressly provides for taking further evidence or conducting further investigation by the Magistrate, after taking cognizance on a police report also.
_{[Note: It is not confined to “Complaint”. The term used is not mere “complaint”. It can also be a ‘complaint of an offence’ in a Charge also. It is clear from the words in Sec. 202 – “on receipt of a complaint of an offence of which he is authorised to take cognizance the Magistrate can ‘either inquire into the case himself or direct an investigation to be made by a police officer'” ]}

               •➧ S. 202 says – ‘Complaint of an offence’, includes one that is made over to the Magistrate under S. 192. It takes-in Police Report. Therefore, it is further clear – “complaint of an offence” is used [in S. 202] in a wider sense;and not confined to “Complaint”..

               •➧ Power of Magistrate under S. 156(3) is limited, for he cannot travel into the arena of merit of the case (it is to be done in trial). Similarly, the scope of S. 202 is also limited for it is only for helping the Magistrate to decide whether or not there is sufficient ground to proceed – that is, if there is a ‘prima facie’ ground, then the Magistrate can (or has to) proceed under Sec. 204.

               •➧ From the aforesaid propositions it is definite that the Magistrate cannot ‘Return’ a Final Report, to police, for ‘reinvestigation’ or ‘further investigation’, invoking Sec. 156(3).

               •➧ The Code does not allow or require the Magistrate to “give directions” or to “monitor” the investigation (while it is done by the police).

               •➧ But, Contra View in Sakiri Vasu v. State of U.P., 2008-2 SCC 409. It is held that the Magistrate has very wide powers to ensure a proper investigation and for this purpose he can monitor the investigation. This decision is followed in subsequent decisions – Vinubhai Haribhai Malaviya v. State of Gujarat (RF Nariman, J.), AIR 2019 SC 5233, Union Public Service Commission v. S. Papaiah, 1997-7 SCC 614, etc., to observe that Magistrate could, under Section 173(8) CrPC, direct ‘further investigation’.

Section 202 CrPC Enquiry

The Sec. 202 enquiry can be by –

the Magistrate himself – who takes cognisance of an offence
- (upon a complaint or
- police report or
- upon his own knowledge)
or any Magistrate subordinate to him,
or by a police officer,
or by such other person as he thinks fit.

Purpose of Sec. 202 enquiry

The purpose is – “deciding whether or not there is sufficient ground for proceeding.”

In Mohd. Yousuf v. Afaq Jahan, 2006-1 SCC (Cri.) 460 laid down the relevant principles under Sec. 202 as under:

“9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. “or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.”
10. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.”

In Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541, it is observed as under:

“.. . when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under s. 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence. It was so held by this Court in R.R. Chari v. State of U. P. and again in Gopal Das v. State of, Assam. In the case before us the Magistrate after receipt of Bhadai Sah’s complaint proceeded to examine him under s. 200 of the Code of Criminal Procedure. That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under s. 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by s. 200 the Magistrate could have issued process at once under s. 204 of the Code of Criminal Procedure or could have dismissed the complaint under s. 203 of the Code of Criminal Procedure. It was also open to him, before taking either of these courses, to take action under s. 202 of the Code of Criminal Procedure.

Scope of 202 Enquiry -“Ascertaining the truth or falsehood of the complaint”

In Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541, it is observed further as under:

“That section (s. 202) empowers the Magistrate to “postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint.”

In Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, AIR 1960 SC 1113, also it was observed that the purpose of Section 202 of CrPC was to ascertain the truth or falsehood of the complaint for ascertaining whether there was a sufficient evidence available in support of issuance of the summoning order.

Not Proper to Order to “Institute a Case” under Sec. 202 (Only Investigation)

In Anand Kumar Pandey v. State of U. P. , 2020-1 All.CR 899, it is found as under:

If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under s. 203 of the Code of Criminal Procedure.
We find that in the case before us the Magistrate after completing the examination under s. 200 of the Code of Criminal Procedure and recording the substance of it made the order in these words :–
- “Examined the complaint on s.a. The offence is cognizable one. To S.I. Bakunthpur for instituting a case and report by 12.12.56.”
If the learned Magistrate had used the words “for investigation” instead of the words “for instituting a case” the order would clearly be under s. 202(1) the Code of Criminal Procedure. We do not think that the fact that he used the words “for instituting a case” makes any difference. It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under s. 156(3) of the Code of Criminal Procedure. Once however he took cognizance he could order investigation by the police only under s. 202 of the Code of Criminal Procedure and not under s. 156(3) of the Code of Criminal Procedure. As it is clear here from the very fact that he took action under s. 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under s. 202 of the Code of Criminal Procedure and not under s. 156(3) of the Code. It would be proper in these circumstances to hold that though the Magistrate used the words “for instituting a case” in this order of November 22, 1956 he was actually taking action under s. 202 of the Code of Criminal Procedure, that being the only section under which he was in law entitled to act.”

Police Investigation u/Sec. 156(3) & 202(1) – Two Operate in Distinct Spheres;

Section 202 is Not to initiate a Fresh Case on Police Report – Only to see “Sufficient Ground to proceed”

In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252, it is pointed out as under:

“17. Section 156(3) occurs in Chapter XII, under the caption: “Information to the Police and their powers to investigate”; while Section 202 is in Chapter XV which bears the heading: “Of complaints to Magistrates”.
The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the precognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub- section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation “for the purpose of deciding whether or not there is sufficient ground for proceeding”. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.” This judgment was then followed in Tula Ram v. Kishore Singh (1977) 4 SCC 459 at paragraphs 11 and 15.” (Quoted in Anand Kumar Pandey v. State Of U. P. , 2020-1 All.CR 899)

Final Report under Sec. 173 and Cognizance by the Magistrate

On getting the 156(3) Order, the police will register an FIR and investigate the matter.
Finally, the police submits a report under Section 173(2).
On receiving the police report the Magistrate –
- (a) takes cognizance of the offence under Section 190(1)(c) and issue process to the accused – even if the police report is to the effect that no case is made out. [Note: Magistrate takes cognizance, not because he is bound by the Sec. 173 Police Report; but, because – on ‘application of judicial mind‘ on the Report, the Magistrate finds it proper “to proceed” under 204.]
- (b) proceeds to act under Section 200, by taking cognizance of the offence on the basis of the complaint originally submitted to him, and proceed to record the statement upon oath of the complaint and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued.
- (c) takes further evidence or conduct further investigation, under Sec. 202 (he cannot go back to 156(3) – pre cognisance stage) to decide whether or not there is sufficient ground to proceed.
- (d) drops the proceedings if it is satisfied (on applying his judicial mind – without regard to the opinion on the police officer as to grounds to ‘proceed’ against the accused) that there is no sufficient material to take cognizance of the offence.

In India Carat Pvt. Ltd. vs. State of Karnataka, 1989 (2) SCC 132, it is observed as under:

“13. From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him….. …… … …Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156(3). When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(c) and issue process straightaway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complaint and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued.”

Magistrate has to independently apply his mind on a final report

A Magistrate can, independently apply his mind to a police report. He is not bound to follow the procedure under Sections 200 and 202 of the Code for taking cognizance. (It is, however, open to the Magistrate to do so: Vishnu Kumar Tiwari v. State of Uttar Pradesh, AIR 2019 SC 3482; 2019-8 SCC 27). It is held in Gangadhar Janardan Mhatre v. State of Maharashtra, (2004) 7 SCC 768as under:

“6. There is no provision in the Code to file a protest petition by the informant who lodged the first information report. But this has been the practice. Absence of a provision in the Code relating to filing of a protest petition has been considered. This Court in Bhagwant Singh v. Commr. of Police [(1985) 2 SCC 537 : 1985 SCC (Cri) 267 : AIR 1985 SC 1285] stressed on the desirability of intimation being given to the informant when a report made under Section 173(2) is under consideration. The Court held as follows: (SCC p. 542, para 4)
“There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.” (Quoted in: Vishnu Kumar Tiwari v. State of Uttar Pradesh, AIR 2019 SC 3482; 2019-8 SCC 27)

Enquiry under Section 202 is extremely limited

The Supreme Court in Fiona Shrikhande v. State of Maharashtra, 2013-14 SCC 44, observed as under:

“At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to “Prima Facie satisfy” whether there are “sufficient grounds to proceed” against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limitedin the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint.”

In Suresh Chand Jain v. State of M.P., 2001(2) S.C.C. 628, the Supreme Court observed as under:

“Section 156, falling within Chapter XII, deals with powers of the Police Officers to investigate cognizable offences. Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to “direct an investigation by a Police Officer”. But the investigation envisaged in section 202 is different from the investigation contemplated in section 156 of the Code. The significant point to be noticed is that when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence. A Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of section 202(1) Cri.P.C. would convince that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a Police Officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further.”

Magistrate can take cognizance even if police report is – no case made out

In Jitender Mehta v. Shivani Mehta, (M.K. Hanjura, J.), AIR OnLine 2018 J & K 546; 2018 Kash LJ 918, it is held as under:

“23. The position is, thus, clear that when a Magistrate receives police report under Section 173(2), he is entitled to take cognizance of an offence even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and other material collected during investigation and form his own opinion independently without being bound by the conclusions arrived at by the investigating agency and take cognizance under Section 190(1)(b) of the Code and direct the issue of process to the accused.”

Magistrate cannot use any material other than Police investigation records; Magistrate to follow the Procedure under Sec. 200 and 202

In Jitender Mehta v. Shivani Mehta, AIR OnLine 2018 J & K 546; 2018 Kash LJ 918, it is also held as under:

“However, the Magistrate cannot make use of any material or evidence other than the investigation records while acting under Section 190(1)(b) of the Code. If he chooses to make use of any materials other than the investigation records, he will have to follow the procedure laid down in relation to complaint cases, on the basis of original complaint or application moved under Section 156(3) Cr.P.C. which otherwise tantamount to complaint or the Protest petition filed against acceptance of final report treating the same as complaint.
This proposition would be in consonance with the provision of Section 207 which inter-alia provides for supply of copy of statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses and any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173.”

Standard of Proof of Evidence at Sec. 202-Stage

The complaint filed by a private party can be dismissed by the learned Magistrate under Section 203 Cr.P.C., if he thinks that there is no sufficient ground for proceeding. While exercising his discretionary powers, the Magistrate should not allow himself to evaluate and appreciate the sworn statements recorded by him under Section 202 Cr.P.C. All that he could do would be, to consider as to whether there is a Prima Facie case for a criminal offence, which, in his judgment, would be sufficient to call upon the alleged offender to answer. At the stage of Section 202 Cr.P.C. enquiry, the standard of proof which is required finally before finding the accused guilty or otherwise should not be applied at the initial stage. [Ponnal @ Kalaiyarasi v. Rajamanickam, 1998 Cri LJ 4333; 1998 (4) Crimes 543 (Mad)]

Accused has no right of hearing until Issueance of Process

In Manharibhai Mujlibhai Kakadia v. Shaileshbhai Mohanbhai Patel, 2012-10 SCC 517, it is observed as under:

“46. The legal position is fairly well-settled that in the proceedings Under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, upto the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. The Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process Under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence.”
See contra view below.

Contra View – Once a Final Report (favourable to Accused), Accused be heard before rejecting it

Though accused has no right of hearing until Issue of Process, as shown above, in Jitender Mehta v. Shivani Mehta, AIR OnLine 2018 J & K 546; 2018 Kash LJ 918, it is held as under:

“25. The learned counsel for the petitioner has energetically argued that the impugned order dated 25th November 2006 was passed without giving opportunity of hearing to the petitioner. His submission is that once there is a Final Report, then, before the Magistrate rejects the same, he must hear the accused. In this connection it may be mentioned that the Supreme Court in Bhagwant v. Commissioner, AIR. 1985 SC 1285, has held that prior to accepting the Final Report, a notice must be given to the first informant or a person aggrieved and such a person must be heard. The ratio of the said decision will be applicable to a contrary case as well, like the present one. In the present case, the petitioner is an accused in a case in which a Final Report has been submitted. His grievance, and rightly so, is that before rejecting the Final Report he should have been heard. It is true that there is no statutory provision that before rejecting the Final Report the Magistrate must hear the accused but there is also no statutory requirement that before accepting the Final Report the complainant should be heard. If it is held that before accepting the Final Report the complainant must be heard, then it cannot be understood by what logic the accused should be denied a right of hearing before the Final Report is rejected. The same principle should apply to the complainant and the accused alike.”
26. The Supreme Court in recent years has been steadily widening the scope of Articles 14 and 21 of the Constitution.
In Maneka Gandhi v. Union of India, AIR 1978 SC 597 (which is a Seven Judge Constitution Bench decision) the Supreme Court has emphasised that even where there is no specific statutory requirement the principles of natural justice may apply. It has been also held that the procedure for depriving a man of his life and liberty must be fair, reasonable and just. Similarly, in Bachan Singh v. State of Punjab, AIR 1982 SC 1825 it was held by the Supreme Court that “every facet of the law which deprives a person of life or personal liberty would therefore have to stand the test of reasonableness, fairness and justice in order to be outside the inhibition of Article 21”. Having said so, once a Final Report is submitted, then before its rejection the accused should be heard, for, it may be that he may be able to persuade the Magistrate that the Final Report was justified and no case is made out against him. It will be unfair to hear only the person filing the protest petition but not the accused. Where a protest petition is filed against a Final Report, both the parties should be heard as that procedure would be fair to the accused and the complainant and hence in accordance with the trend of the decisions of the Supreme Court (from Maneka Gandhi’s case onwards) in which the scope of Articles 14 and 21 of the Constitution has been greatly expanded and it has been laid down that the procedure should be just, fair and reasonable. Once a final report is filed it is only fair and reasonable that the accused should be heard before rejecting the Final Report and taking cognizance. I do not mean to say that cognizance cannot be taken on the basis of the final report. The Supreme Court in M/s India Carat Pvt. Ltd. case (supra) has held that this can be done. But fairness demands that this should be done only after hearing the accused, otherwise the accused may be put to unnecessary harassment.

Magistrate takes a judicial decision on the Final Report

Jitender Mehta v. Shivani Mehta, AIR OnLine 2018 J & K 546; 2018 Kash LJ 918, continued as under:

“27. It may not be out of place to mention here that the Constitution of the India is the supreme law of the land and the provisions in the criminal statutes must be read and interpreted not in isolation but in the light of the constitutional provisions as interpreted by the Supreme Court. If upon an investigation, it appears to the officer-in-charge of the police station or to the police officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him and the Final Report can be filed before the Magistrate. It is true that the Final Report is not binding on the Magistrate and if the Magistrate differs from the opinion of the I.O., he can take the cognizance or order for the further investigation, but that action of the Magistrate is a judicial action and at that stage while taking decision on the Final Report the Magistrate has to act judicially as a Court. The Magistrate is required to weigh the prima facie evidence and take a judicial decision.”

Complaint can be dismissed under Section 203 Cr.P.C.

The complaint filed by a private party can be dismissed by the Magistrate under Section 203 Cr.P.C., if he thinks that there is no sufficient ground for proceeding.

Further investigation by Police and Magistrate – under 156(3)

Under Section 202 the Magistrate has power to order ‘further investigation’.

Under 173(8) of the CrPC, a police officer can carry on ‘further investigation’.

Police should seek formal permission from the Court as held in Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762, for further investigation.

No conflict with the power of the police to investigate further in light of Section 173(8) of the CrPC, and the Magistrate’s power to order further investigation under Section 202 of the CrPC and therefore the Magistrate can order reopening of the investigation, under Section 173(8).

Magistrate has three options – on receipt of a final (refer) report under Section 173:

to accept the report and close the case,
disagree with the report and proceed with the case (under Section 202 CrPC),
order further investigation (under Section 202).

Order Further investigation – possible, under S. 173(8)

In Union Public Service Commission v. S. Papaiah, (1997) 7 SCC 614, it was held as under:

“The Magistrate could, thus in exercise of the powers under Section 173(8) CrPC direct the CBI to “further investigate” the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the “new” report to be submitted by the investigating officer would be governed by sub-sections (2) to (6) of Section 173 CrPC.”. (quoted in: Central Bureau Of India v. Hemendhra Reddy (Surya Kant, J.B. Pardiwala, jj.)

It appears that this power to order ‘further investigation’ is under Sec. 202, and not under Sections 173(8) or 156, for the following reasons.

The CrPC does not give a power to the Magistrate to “monitor” the investigation. (If it was really intended, or the scheme was, to convey a ‘wide power’ including monitoring, it would have been stated in the Code itself.)
The power of Magistrate to order ‘further investigation’ is only in Sec. 202 CrPC.
- Note: Sec. 156(3) deals with the power of Magistrate to direct investigation of cognizable offences by police.
- Sec. 173(8) does not authorise the Magistrate to make an order for further investigation. (It authorises the the police officer alone.)
The power for ‘Ordering Proper Investigation’ (by police) may be a matter for the High Court under Article 226 of the Constitution. The ‘grievance’ on investigation cannot be slipped-down to a magistrate, as laid down in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage (2016- 6 SCC 277) as an ‘alternate remedy’.
The Magistrate derives powers to deal with (or take cognizance of) the facts which constitute an offence, under Clauses (a) to (c) of Sec. 190(1) of the CrPC. It is on the following –
- (a) upon receiving a complaint of facts which constitute such offence;
- (b) upon a police report of such facts;
- (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
Once a Final Report is filed, the Magistrate has to apply his mind – to decide whether to proceed with it (that is, to issue summons/warrant under Sec. 204) or not. At this stage, if the Magistrate finds it proper to take further evidence or conduct further investigation, he has to invoke Sec. 202 (and, he cannot go back to Sec. 156).
It is for the following –
(i) after getting the police report, the magistrate has to take cognizance of offences, under Sec. 190, if he decides to proceed.
(ii) after taking cognizance on a police report, if the Magistrate finds it proper to take further evidence or conduct further investigation (to decide whether there is sufficient ground to proceed against accused), only enabling provision in the CrPC is Sec. 202.
(iii) after taking cognizance, the Magistrate cannot go back to the pre-cognisance stage, Sec. 156(3).
(iv) Sec. 202 expressly provides for taking further evidence or conducting further investigation by the Magistrate, after taking cognizance on a police report also.
_{[ Note: It is not confined to “Complaint”. The term used is not mere “complaint”. It can also be a ‘complaint of an offence’ in a Charge also. It is clear from the words in Sec. 202 – “on receipt of a complaint of an offence of which he is authorised to take cognizance the Magistrate can ‘either inquire into the case himself or direct an investigation to be made by a police officer'” ]}
Under Sec. 202, the Magistrate is required to act upon “receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Sec. 192“; and he can exercise following powers –
- “enquire into the case himself or
- ordering further investigation, through police or any other person”
Note: Sec. 192 is in Chapter XIV, Conditions Requisite for Initiation of Proceedings; and Sec. 202 is in Chapter XV, Complaints to Magistrates. But, Sec. 202 deals with a matter “made over to him under Sec. 192“. It can include a Police Report.
- Therefore, it is clear that the “Receipt of a complaint of an offence of which he is authorised to take cognizance” [in Sec. 202] is used in wider sense. It includes Police Report (See: Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252).
- Sec. 192 says: “Any Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to any competent Magistrate …” (It is not ‘Complaint’ alone.)
In other words, ‘complaint of an offence’, “made over to him under section 192“, stated in Sec. 202, being refers to a Police Report (made over) also, it is clear – “complaint of an offence” [in Sec. 202] is used in a wider sense (and it is noteworthy – the term used is not mere “complaint”).
Therefore, Magistrate can ‘enquire into the case himself’ or ‘order further investigation’, under Sec. 202, upon a police report (on which cognizance is taken). It can be on both Refer Report or Charge under Sec. 173.
Once a Final Report is filed, the Magistrate has to apply his mind, under Sec. 204 – to decide to proceed with it or not. If the Magistrate finds it proper to take further evidence or conduct further investigation, only provision for the same is Sec. 202; he cannot go back to 156(3) – pre cognisance stage as held in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252.
There is no specific provision that allows the Magistrate to give specific directions as to investigation (to police) in ‘further investigation‘ also.
In short, the Code does not allow or direct the Magistrate to “give directions” or to “monitor” the investigation (while it is done by the police).

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

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Sec. 65B

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Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
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Suits by or against Trusts
Law on Hindu Religious Endowments
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Constitutional Principles
Ayodhya and Sabarimala Disputes
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Substantive Rights and Mistakes & Procedural Defects in Judicial Proceedings

Jojy George Koduvath

Procedure – a Handmaid; Just Relief Cannot be Refused because of Mistake

In Jai Jai Ram Manohar Lal, (1969) 1 SCC 869 our Apex Court held, while dealing with amendment of pleadings, as under:

“5. …. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. (Quoted in Varun Pahwa v. Renu Chaudhary, AIR 2019 SC 1186)

Procedural defects should not be allowed to defeat Substantive Rights

In Uday Shankar Triyar v. Ram Kalewar Prasad Singh, (2006) 1 SCC 75, our Apex Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:-

“17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice.
Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:
.(i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance;
(ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
(iii) where the non-compliance or violation is proved to be deliberate or mischievous;
(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court;
(v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.” (Quoted in Varun Pahwa v. Renu Chaudhary, AIR 2019 SC 1186).

Adjudication is to Render Justice; it is Unmindful of Consequences

It was held by the Kerala High Court in Gopalakrishnan v. Joint Registrar of Co operative Societies (General), 08 Dec 2015, (Dama Seshadri Naidu, J) as under:

“23. I am very conscious that this Court, as a constitutional adjudicatory machinery, is called upon to interpret the statute straight and simple and render justice. Justice is not an inventive judicial instrument; it is rather a necessary corollary to the judicious application of the law to the facts following certain accepted cannons of construction of the statutes and the Constitution, too. The whole process is compendiously called judicial adjudication. Trite is the truth that adjudication is unmindful of consequences; it is, on the other hand, in the legislative wisdom to consider all the eventualities and bring about legislation or legislative changes to see that the varied needs of the organisations and institutions, including the administrative agencies, are best served—adverse fallout on the application of law is avoided.

Suit in the name of ‘Wrong’ Plaintiff, out of Inadvertent Mistake

In Varun Pahwa v. Renu Chaudhary, AIR 2019 SC 1186, the plaint was not properly drafted in as much as in the memo of parties, the Plaintiff is described as ‘Varun Pahwa through Director of Siddharth Garments Pvt. Ltd.’; it should have been ‘Siddharth Garments Pvt. Ltd. through its Director Varun Pahwa’. It was an inadvertent mistake of the counsel. Supreme Court [after referring State of Maharashtra v. Hindustan Construction Company Limited Jai Jai Ram Manohar Lal, (1969) 1 SCC 869 and Uday Shankar Triyar v. Ram Kalewar Prasad Singh, (2006) 1 SCC 75], permitted the Company to correct the mistake.

Amendments allowed, if no injustice to the other side

In State of Maharashtra v. Hindustan Construction Company Limited, (2010) 4 SCC 518, Supreme Court held as under:-

“17. Insofar as the Code of Civil Procedure, 1908 (for short “CPC”) is concerned, Order 6 Rule 17 provides for amendment of pleadings. It says that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
18. The matters relating to amendment of pleadings have come up for consideration before the courts from time to time. As far back as in 1884 in Clarapede & Co. v. Commercial Union Assn. (1883) 32 WR 262 (CA) – an appeal that came up before the Court of Appeal, Brett M.R. stated:
“… The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made….”

Mistakes Carried into Decrees

In Aliyar v. Raju V. Vayalat, 2016-1 KHC 763; 2016-1 KLJ 799; 2016-2 KLT 656, it is observed as under:

“It is needless to restate that the courts exercising power under the Act (Specific Relief Act, 1963) have both legal and equitable jurisdictions. It is common knowledge that in our country we do not have Courts of Equity and Law Courts separately. The Act confers equitable jurisdiction on the Civil Courts for granting specific relief.” (Quoted in: George, v. Annakutty, ILR 2017-4 Ker 839; 2017-4 KHC 742; 2017-4 KerLT 553)

“Accidental slips or omissions may arise in the following circumstances –

.(1) In cases of suits based upon mortgage, sale, exchange, lease or agreement to purchase, survey numbers may be given correctly in the document anterior to the suit but a wrong survey number may be incorporated in the schedules by mistakes. Which mistakes may be carried into the decree schedules as well.
(2) In the above cases, even in the original document on the basis of which the suit is filed, there may be a mistake in regard to the survey numbers, though the extent and boundaries of the land belonging to the parties may be correctly described, and the same wrong survey number may be carried into the plaint schedules and as a consequences into the decree schedulesas well.
(3) In suits for partition and the like where there is no document anterior to the suit the mistake may occur in the plaint schedules by giving a wrong survey number or wrong extents though the properties have been correctly described by boundaries etc.”

Amendment of plaint and decree allowed under Sec. 151 and 152 CPC

In Niyamat Ali Molla v. Sonargon Housing Co-operative Society Ltd. (SB Sinha, J.), AIR 2008 SC 225; 2007-13 SCC 421, it is held that a decree may be corrected by the Court both in exercise of its power under Section 152 as also under Section 151. It was a case where application for amendment of the plaint as also of the decree containing the Schedule describing the said property was filed. The Apex Court observed further as under:

“The courts power to amend a decree is not only confined to a clerical or arithmetical error but also the pleadings of the parties, if a mistake had occurred in the pleadings and the same is continued.”

The Apex Court upheld the Order allowing the amendment holding as under:

“26.It is not a case where the defendants could be said to have been misled. It is now well settled that the pleadings of the parties are to be read in their entirety. They are to be construed liberally and not in a pedantic manner. It is also not a case where by reason of an amendment, one property is being substituted by the other. If the Court has the requisite power to make an amendment of the decree, the same would not mean that it had gone beyond the decree or passing any decree. The statements contained in the body of the plaint have sufficiently described the suit lands. Only because some blanks in the schedule of the property have been left, the same, by itself, may not be a ground to deprive the respondents from the fruit of the decree. If the appellant herein did not file any written statement, he did so at its own peril. Admittedly, he examined himself as a witness in the case. He, therefore, was aware of the issues raised in the suit. It is stated that an Advocate-Commissioner has also been appointed. We, therefore, are of the opinion that only because the JL numbers in the schedule was missing, the same by itself would not be a ground to interfere with the impugned order.
27.So far as the application for impleadment of the applicants are concerned, they being not parties to the suit are not bound by the decree. They would, thus, be entitled to take recourse to such remedies which are available to them in law including filing of an application under Order 21 Rules 97 and 99 of the Code of Civil Procedure, if any occasion arises therefor. As and when the said applicants take recourse to law, the same has to be determined in accordance with law.
28.This appeal and the application for impleadment are dismissed accordingly. It would, however, for the Executing Court to consider at the time of execution of the decree to ascertain whether there exists any difficulty in executing the decree or not. In the facts and circumstances of the case, however, there shall be no order as to costs.”

This decision is referred to in Peethani Suryanarayana v. Repaka Venkata Ramana Kishore, 2009-11 SCC 308..

No limit to the Court to Correct Errors u/Sec. 152 CPC; Mistake in Suit Document – Corrections allowed in a Preliminary Decree.

In Yerramilli Satyanarayana Rao v. Kandukuri Purnayya, AIR 1931 Mad 260, it is held by Krishnan Pandalai J. (in a case in which a wrong description of mortgaged property was given in the bond and the same mistake was repeated in the plaint and in the preliminary decree) as under:

“The net result of the authorities appears to me to be that there is nothing which limits the power of the Court under Section 152 to correcting errors, mistakes and omissions, which arose in the suit and there is nothing which prevents the Court from doing justice in an appropriate case where such mistakes arose by reason of copying an erroneous document into the plaint. In my opinion, a suit for rectification although it may have been possible is not the only remedy. As for the suggestion of the Judge that a petition for review is appropriate, I fail to see that that is an obstacle to the present application. The order of the Judge dismissing the petition must be set aside and the petition will be remitted to the Lower Court for being dealt with on the merits. (referred to by the AP High Court in Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah, AIR1974 AP201)

In Yerramilli Satyanarayana Rao v. Kandukuri Purnayya, AIR 1931 Mad 260, several earlier decisions were relied on. They were analysed by the AP High Court in Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah, AIR1974 AP201 (Viswanatha Sastri, J.), to observe as under:

“The learned Judge considered in that case the decision in Narayanaswami v. Natesa, (1893) ILR 16, Mad 424 which was a case of wrong description of the hypothecated property in the plaint, whereas the mortgage consisted of the correct survey number and an application was made to bring the plaint schedule in conformity with that contained in the bond. It was held by the Full Bench consisting of Parker. Best and Muttusami Ayyar, JJ. that the alteration ordered was necessary to rectify a palpable error without which correction the decree was unexecutable. The error in the plaint was so palpable that to obstacle in the way of plaintiff executing his decree.
The learned Judge in that decision referred to another decision of a Bench in Somasundaram Chettiar v. Vasuswami Naicker , 1914 Mad WN 107 = (AIR 1914 Mad 297 (1)) wherein there were errors in the description of the boundaries which makes the whole description palpably erroneous and if allowed to stand, would have made the decree absolutely useless and unexectuable. The latter Bench followed the earlier decision in (1893) ILR 16 Mad 424 and held that it was immaterial whether the errors were introduced into the plaint for the first time or in documents anterior to the plaint provided they are clerical errors and it was a case for amendment. Another Bench decision of their Lordships Sadasiva Ayyar and Spencer JJ. in Mahaboob Behum Sahiba v. Lal Begum Saheba, (1921) 14 Mad LW 445 which, followed the above decisions in ILR 16 Mad 424 and 1914 Mad WN 107 = (AIR 1914 Mad 297 (1)) was also followed in 61 Mad LJ 805 = (AIR 1931 Mad 260 ). The case in (1921) 14 Mad LW 445 was in respect of an amendment of survey numbers filed even after a final decree was passed.”

The AP High Court, further observed in in Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah, AIR1974 AP201, as under:

“(15) The decision of Krishnan Pandalai J. was followed by Patanjali Sastry, J. (as his Lordship then was) in Mad LJ 452 (AIR 1941 Mad 940 (1) ). The learned Judge observed that the Madras High Court has applied section 152 also to cases where the mistake occurred earlier in the document evidencing the transaction itself and was copied in the plaint and decree in the suit brought to enforce the transaction. The decision in Satyanarayana Rao v. Purnayya, (1931) 61 MLJ 805. was followed and the decision to the contra in Shujaatmand Khan v. Govind Behari. Both these decisions were followed in Vimalamba v. Ratnamma, (1965) 1 Andh WR 266 (AIR 1966 Andh Pra 26) by Venkatesam J, who also followed the Madras view in preference to that of Allahabad. The same view has adopted in Subramonia v. Joseph George, AIR 1959 Ker 336 by Kerala High Court and in Ghulam Ahmad v. Khizar Joo, AIR 1960 J and K 37 by the High Court of Jammu and Kashmir.
(16) The view taken in Ramakrishnan v. Radhakrishnan (AIR 1948 Madras 13) by a Bench of Madras High Court consisting Gentle C. J. and Hapell J, no doubt struck a different footing. In that case there was a mortgage in 1922. In respect of three items of property, including an item, which was survey No. 1427. In 1928 a preliminary decree was passed , which was mortgagor had no title to survey No. 1467. In 1930 he filed E. A. 494 of 1930 for attachment of property in S. No. 464 to which it was common ground the mortgagor had a title. The attachment was ordered and affected. but nothing was done for three grounds years. In 1933 the mortgagee-decree-holder, assigned the decree to the respondent in the said appeal. Eight years later the assignee-decree-holder brought the properties in survey No. 1467 to sale in execution of the final mortgage decrees and at the sale he became the purchaser. The sale was confirmed and full satisfaction of the decree was entered up. When the assignee-decree-holder purchaser went to take possession, he was obstructed by one of the sons of appellant No. 1. An application to remove the obstruction was filed and was ordered by the trial court in 1943. In appeal to the High Court the appeal was allowed. Shortly after the appeal was allowed dismissing the application of the assignee-decree-holder for removal of obstruction. The assignee-decree-holder filed an application in the lower court to have the mortgage deed, plaint in the mortgage suit and the preliminary and final decrees altered by substituting properties in 1463 and 1466 in place of property number 1467. The provisions of law invoked for that application were Section 151 and 152 C. P. C. The Trial Court allowed the application and altered the instrument by substituting two survey numbers 1463 hypothecate of the mortgage. On those facts the learned Judges held that the remedy of the petitioner was only to file a suit under Section 31 of Specific Relief Act for rectification of the deed and not to file an application under Section 152 of the C. P. C. The learned Judges observed as follows:
“I am unable to see how Section 152 gives to a court jurisdiction and authority to modify documents, particularly documents upon which a suit is instituted. There is a remedy by way of suit and I find nothing in the provisions of Section 152 which confers upon it similar powers as are conferred by Section 31, Specific Relief Act. In my view Section 152 is for the purpose of correcting errors directly involved in the proceedings themselves and not for correcting errors which are anterior to the proceedings, particularly in documents upon which proceedings are brought. I am unable to see that property, wrongly described in a deed, can be included in any of the mistakes which the section allows to be corrected. It is not a clerical or an arithmetical error. and I cannot see that it is an accidental slip or an omission.”The learned Judges preferred to follow the view of Allahabad High Court in preference to the view of Madras High Court cited before it was enunciated in the two decisions of Madras High Court in (1931) 61 Mad LJ 805 (AIR 1931 Mad 260) and (1941) 2 Mad LJ 452 (AIR 1941 Mad 940 (1)) and the Rangoon High Courts view as enunciated in AIR 1924 Rang 104. ”
Their Lordships also negativated that there was power to amend as prayed for under Section 151 C. P. C. It is therefore clear that the application, out of which the said appeal arose, was for amending the mortgage deed itself and as a consequence the schedules in the plaint and the decrees. Their Lordships clearly laid down that Section 152 is intended only to correct errors involved in the proceedings themselves in the suit and not for correcting errors which are anterior to the proceedings and particularly in the document upon which the proceedings are brought.

The AP High Court, in Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah, AIR1974 AP201, referring the following decisions and observed as under:

“(17) At this stage attention may be invited to another Bench decision in Latchavya v. Seethamma. (1932) 62 Mad LJ 350 (AIR 1932 Mad 275) rendered by their Lordships Pillay and Anantakrishna Aiyar JJ. That was a case in which there was a mistake in the mentioning of survey number in the mortgage deed itself. It was mentioned therein as survey No. 166 instead of survey number 168 and that mistake had been repeated in the plaint and decrees. On the basis of the said mortgage the suit O. S. 302 of 1919 was filed. A preliminary decree was passed against which there was no appeal. At that stage, the mortgagee decree-holder discovered that there was a mistake in the survey number. The mortgagee thereupon filed a suit under Section 31 of the Specific Relief Act for rectification of the mistake in the suit O. S. 302 of 1919. The said suit was decreed as the mention of survey number 166 was done by mistake of the parties. The court also directed the amendment of the mortgage-preliminary decree. The decision was confirmed in appeal by the learned Subordinate Judge. But the suit was dismissed by waller J in appeal L.P.A. was preferred against that decision. Their Lordships considered relevant case law and ultimately held that where a mortgage deed has been rectified in respect of a mutual mistake in spite of a decree having been passed on the basis of the mortgage, though the plaintiff has adopted a wrong course in applying in the same suit for rectification of the prior decree, the order of the court should be allowed to stand as it amounted to an amendment which the plaintiffs might have got by first getting the mortgagee deed rectified and then amending the plaint by applying for review or on an application under S. 152 CPC but it was out of a suit for rectification of the mistake in the bond as well as the decree. It was therefore a converse case and their Lordships held that such a rectification of the decree cannot be interfered with, as it was a mutual mistake.”
(18) It may be relevant at this stage, to note the decision of Supreme Court in Sheodhyan Singh v. Mst. Santichara Kuer (1961) 2 Mad LJ (SC) 116 (AIR 1963 SC 1879 ). That was a case in which a suit was brought in respect of 10 plots of land, for declaration and possession. They were originally mortgaged to the defendants, on the basis of which a morgage suit was filed in 1932. The mortgaged property was sold in court auction and was purchased by the decree holders 1936. They took possession of the property through court and remained in possession till 1943. After the sale to the respondents, there were trouble created by the appellants, who ultimately took possession by force. The respondents thereupon filed the suit out of which the appeal arose. The appellants resisted the suit on a number of grounds. One of grounds related to plot No. 1060. the appellants contended that it was neither included in the final decree for sale in favour of the respondents predecessors in interest nor in the sale certificate. The final decree contained 10 plots. It gives the Tauzi number, the Khasra number the Thana number, the survey number and the area and the boundaries of each plot. Among the 10 plots mentioned in the final decree there was a plot No. 160 but not plot bearing No. 1060. In the sale certificate also the same plots were mentioned. The High Court held that plot 100 in the final decree and in the sale certificate was a mistake for 1060. In the sale certificate also the same plots were mentioned. The High Court held that plot 100 in the final decree and in the sale certificate was a mistake for 1060, and it was a case of misdescription and not a case of disputed identity. The plot which was taken possession of also was the plot in 1060 as per the description and the boundaries. It was also found that there was no plot bearing No. 160 in the Khata number as the identify of the lot was correctly given and it was only a misdescription of the plot in the final decree as well as in the sale certificate. The decree for possession was held to be good. Their Lordships also confirmed this decision and held that where there is no doubt as to the identity and there is only a misdescription that can be treated as a mere irregularity. This case no doubt related a suit wherein the possession of the correct plot was sought to be recovered. But there is no reason why the same principle laid down by their Lordships viz. , that where there is only a misdescription of the plot and there is no dispute about the identity and the suit could be decreed for the correct plot not covered by the decree and sale certificate, should not be applied even in cases arising, should not be applied even in case arising under Section 152 C. P. C. or clerical or mutual mistakes.
(19) I am also of the view that in view of the above principles laid down by their Lordships in the above Supreme Court case, the reasoning of the Bench in Ramakrishnan v. Radhakrishnan, AIR 1948 Mad 13 may have to be re-considered in a proper case. I need not pursue the matter further in this case as this case is not based upon a document anterior to the suit.
(20) I may now refer to a recent decision by a Bench of this Court in Peraju v. Venkamma, AIR 1971 in Andh Pra 74. Their Lordships preferred to follow the view of Madras High Court in (1931) 61 MLJ 805 (AIR 1931 Mad 260) and a decision of Rajamannar C. J. in Katamraju v. Paripurnandam. (1948) 2 Mad LJ 301 (AIR 1949 Mad 282) and that of Krishnaswami Nayudu in Apart Krishna Poduval v. Lakshmi Nethiar, (1950) 1 Mad LJ 120 (AIR 1950 Mad 751 ). In both the above cases, it was held that where an application is filed for correction of errors as regards survey numbers, in the plaint schedule and decree schedules, and there is no dispute as regards identity of the property amendments may be allowed under Section 152 C. P. C. The fact that the deed anterior to the plaint also contained the similar mistake cannot disentitle the appellant to have the error set right. The above Bench have distinguished the decision in AIR 1948 Mad 13 on facts stating that it related to the rectification of the document itself.
(21) It may also be mentioned here that a suit still continues even after the preliminary decree and it is only after passing of final decree the suit can be said to have terminated. It is certainly, therefore open to courts to amend a plaint and decree schedules at any stage before passing of final decree. (Vide somireddi Burrayya v. Somireddy Atchayyamma (1958) 2 Andh WR 208 (AIR 1959 Andh Pra 26) ; Basavayya v. Guruvayya, AIR 1951 Mad 938 (FB) and Venkata Reddy v. P. Reddy AIR 1963 SC 992.”

Corrections contemplated are of correcting only accidental omission or mistakes

In Dwaraka Das v. State of M.P., (1999) 3 SCC 500, it is held as under:

“The correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the Section cannot be pressed into service to correct an omission which is intentional, how erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC even after passing of effective order in the lis pending before them. No Court can under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial court had specifically held the respondents-State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the court had rejected the claim of the appellant in so far as pendente lite interest was concerned.”

No party should suffer due to Mistake of the Court

In Jayalakshmi Coelho v. Oswald Joseph Coelho, 2001-4 SCC 181, it is laid down as under:

“So far legal position is concerned, there would hardly be any doubt about the proposition that in terms of Section 152 C.P.C., any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the court. The principle behind the provision is that no party should suffer due to mistake of the court and whatever is intended by the court while passing the order or decree must be properly reflected therein, otherwise it would only be destructive to the principle of advancing the cause of justice. A reference to the following cases on the point may be made: The basis of the provision under Section 152 C.P.C. is found on the maxim Actus Curiae Neminem Gravabit i.e. an act of Court shall prejudice no man (Jenk Cent-118) as observed in a case reported in AIR 1981 Guwahati 41, The Assam Tea Corporation Ltd. versus Narayan Singh and another. Hence, an unintentional mistake of the Court which may prejudice cause of any party must be rectified. In another case reported in AIR 1962 S.C. 633 I.L. Janakirama Iyer and others etc. etc. versus P.M. Nilakanta Iyer it was found that by mistake word net profit was written in the decree in place of mesne profit. This mistake was found to be clear by looking to the earlier part of the judgment. The mistake was held to be inadvertent. In Bhikhi Lal and others versus Tribeni and others AIR 1965 S.C. 1935 it was held that a decree which was in conformity with the judgment was not liable to be corrected. In another case reported in AIR 1966 S.C. 1047 Master Construction Co. (p) Ltd. versus State of Orissa and another it has been observed that arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court liable to be corrected. To illustrate the point, it has been indicated as an example that in a case where the order may contain something which is not mentioned in the decree would be a case of unintentional omission or mistake. Such omissions are attributable to the Court who may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits are required for such rectification of mistake. In a case reported in (1999) 3 S.C.C. 500 Dwarakadas Versus State of M.P. and Another this Court has held that the correction in the order or decree should be of the mistake or omission which is accidental and not intentional without going into the merits of the case. It is further observed that the provisions cannot be invoked to modify, alter or add to the terms of the original decree so as to in effect pass an effective judicial order after the judgment in the case. The trial court had not granted the interest pendente lite though such a prayer was made in the plaint but on an application moved under Section 152 C.P.C. the interest pendente lite was awarded by correcting the judgment and the decree on the ground that non-awarding of the interest pendente lite was an accidental omission. It was held that the High Court was right in setting aside the order. Liberal use of the provisions under Section 152 C.P.C. by the Courts beyond its scope has been deprecated. While taking the above view this Court had approved the judgment of the Madras High Court in Thirugnanavalli Ammal versus P. Venugopala Pillai AIR 1940 Madras 29 and relied on Maharaj Puttu Lal versus Sripal Singh reported in AIR 1937 Oudh 191: ILR 12 Lucknow 759. Similar view is found to have been taken by this Court in a case reported in (1996) 11 S.C.C. 528 State of Bihar and another versus Nilmani Sahu and another where the Court in the guise of arithmetical mistake on re-consideration of the matter came to a fresh conclusion as to the number of trees and the valuations thereof in the matter which had already been finally decided. Similarly in the case of Bai Shakriben (dead) By Natwar Melsingh and others versus Special Land Acquisition Officer and another reported in (1996) 4 S.C.C. 533 this Court found omission of award of additional amount under Section 23 (1-A), enhanced interest under Section 28 and solatium etc. could not be treated as clerical or arithmetical error in the order. The application for amendment of the decree in awarding of the amount as indicated above was held to be bad in law.

Clerical Error or Slip can be Corrected by all Courts and Authorities

Jayalakshmi Coelho v. Oswald Joseph Coelho, 2001-4 SCC 181, continued as under:

As a matter of fact such inherent powers would generally be available to all courts and authorities irrespective of the fact whether the provisions contained under Section 152 C.P.C. may or may not strictly apply to any particular proceeding. In a matter where it is clear that something which the Court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake. But before exercise of such power the Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits some thing which was intended to be otherwise that is to say while passing the decree the court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does not find mention in the order or the judgment or something which was not intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the matter and to find that a better order or decree could or should be passed.. There should not be re-consideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of Courts inherent powers as contained under Section 152 C.P.C. It is to be confined to something initially intended but left out or added against such intention. So far the legal proposition relied upon by the learned Single Judge and the Honble Division Bench deciding the matter in its LPA jurisdiction, we are totally in agreement with the same i.e. an unintentional mistake which occurred due to accidental slip has to be rectified. The question however which requires consideration is as to whether on the facts of the present case and the principles indicated above, it could be said that there was any clerical or arithmetical error or accidental slip on the part of the Court or not.”

Jayalakshmi Coelho v. Oswald Joseph Coelho, 2001-4 SCC 181, followed, in Neeraj Kumar Sainy v. State of U. P., AIR 2017 SC 1524; 2017-14 SCC 136, U.P.S.R.T.C. v. Imtiaz Hussain, 2006-1 SCC 380, State Of Punjab v. Darshan Singh, 2004-1 SCC 328

Mistake of a party cannot be Corrected taking the Benefit of Sec. 152

In Bhartiya Seva Samaj Trust v. Yogeshbhai Ambalal Patel, AIR 2012 SC 3285, it is held as under:

“21. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim ‘allegans suam turpitudinem non est audiendus’. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong…. This concept is also explained by the legal maxims ‘Commodum ex injuria sua non habere debet’; and ‘nullus commodum capere potest de injuria sua propria’.”

Referring Bhartiya Seva Samaj Trust v. Yogeshbhai Ambalal Patel, it is observed in ONGC Ltd. v. Modern Construction, 2014-1 SCC 648, as under:

17. Thus, the respondent cannot take the benefit of its own mistake. Respondent instituted the suit in Civil Court at Mehsana which admittedly had no jurisdiction to entertain the suit. In spite of the fact that the civil suit stood decreed, the High Court directed the court at Mehsana to return the plaint in view of the provisions of Order VII Rule 10 CPC. Thus, the respondent presented the plaint before the Civil Court at Surat on 3.2.1999.
18. The judgment and decree dated 21.9.2006 clearly provided for future interest at the rate of 12 per cent per annum from the date of filing of the suit till the realisation of the amount. The Executing Court vide judgment and decree dated 28.9.2007 rejected the claim of the respondent observing that the respondent had wrongly filed suit at Mehsana and the said court had no jurisdiction, and the “wrong doer cannot get benefit of its own wrong” i.e. the benefit of interest on the amount from the date of filing the suit in Mehsana court. The Appellate Court in its order dated 12.3.2010 reiterated a similar view rejecting the appeal of the respondent observing that “a public undertaking cannot be penalised for the mistake committed by the plaintiff by choosing a wrong forum”. Before the High Court when the matter was taken up on 14.9.2010, a similar view had been reiterated that the respondent cannot be allowed to take advantage of the words “from the date of the suit”, and conveniently overlook its own wrong of initially filing the suit in 1986 in the court at Mehsana. Though the court did not have jurisdiction, the plaintiff/respondent is now claiming interest for the period from 1986 to 1999 i.e. for 13 years by taking advantage of its own wrong and for that purpose, the plaintiff/respondent is trying to misconstrue the words mentioned by the learned trial court in the operative portion of the judgment dated 21.9.2006, viz., from the date of filing of the suit. However, while passing the impugned order, the High Court has used the language that the case stood transferred from the Mehsana court to the court at Surat and, therefore, interest has to be paid from the date of initiation of the suit at Mehsana i.e. from 1986 and in view thereof, allowed the claim.
19. We are of the considered view that once the plaint was presented before the Civil Court at Surat, it was a fresh suit and cannot be considered to be continuation of the suit instituted at Mehsana. The plaintiff/respondent cannot be permitted to take advantage of its own mistake instituting the suit before a wrong court. The judgment and order impugned cannot be sustained in the eyes of law.”

When instrument may be rectified

Section 26 of Sp. Relief Act reads as follows:

“26. When instrument may be rectified –
(1) When, through fraud or a mutual mistake of the parties a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956) applies) does not express their real intention, then-
either party or his representative-in- interest may institute a suit to have the instrument rectified; or
the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or
a defendant in any such suit, as is referred to in Cl.(b), may, in addition to any other defence open to him, ask for rectification of the instrument.
(2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the Court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the Court may in its discretion direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.
(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the Court thinks fit, may be specifically enforced.
(4) No relief for the rectification of an instrument shall be granted to any party under this section, unless it has been specifically claimed:
Provided that, where a party has not claimed any such relief in his pleading, the Court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim.”

Suit for Rectification of Deed – When Needed?

In Aliyar v. Raju V. Vayalat, 2016-1 KHC 763; 2016-2 KLT 656, it is found as under:

“Admittedly, in Ext. A1 there are mistakes in the extent, survey number, boundaries and the details of the anterior title deeds. In these situations, it is clear that institution of a suit merely for the injunction reliefs will not serve the purpose of the respondent/plaintiff. Likewise, a suit for declaration that the plaint schedule property is the property that is included in Ext. A1 will also not help the respondent to get an effective and executable decree. It is, therefore, very clear that the patent mistakes in Ext. A1 will have to be rectified, otherwise the actual features available on the ground will be totally different from the descriptions shown in the respondent’s title deed. That apart, a declaratory relief can only be claimed in respect of a specific immovable property capable of being identified correctly. Indisputably, the descriptions in the schedule to Ext.A1 and the recital in the document do not reflect the actual state of affairs. Therefore, the declaratory relief can be effectively granted only after rectifying the mistakes in Ext. A1. Viewing from this angle, we are of the view that the most important and primary relief claimable under such a situation is the rectification of Ext. A1.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Will Boundaries of Properties (Always) Prevail Over Survey Number, Extent, Side Measurements, etc.?

Answer: No.

Saji Koduvath, Advocate, Kottayam

Abstract

Various Legal Propositions advanced –
                •➧ 1. Intention is of the author/parties is important.
                •➧ 2. Boundaries preferred.
                •➧ 3. Test is – which is most unlikely, to be erred.
                •➧ 4. Vague and uncertain description rejected.
               •➧ 5. Definite and certain descriptions preferred.
The propositions are rules of construction or of evidence,
and not rules of law. Hence, they are flexible and variable.

Intention of the Parties

In Krishnamoorthi Iyer v. Janaki Amma, 1957 KHC 202 : 1957 KLT 886, it is said as under:

“2. ….. .. The usual rule, no doubt, is that when there is a conflict between the area and the boundaries mentioned in a document the description of the boundaries should be accepted in preference to the area mentioned in the document for determining the extent of the land conveyed thereunder. But, this is not an inflexible or infallible rule, and even in the cases in which this rule has been applied, it has been pointed out that when, from the proved circumstances it is clear that the intention of the parties was only to convey the extent mentioned in the document, even though the boundaries would take in a larger area, effect has to be given to their intention and the description of the boundaries cannot be allowed to prevail. .. .. …” (quoted in: Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959)

In The Church of South India Trust Association v. Raja Ambrose, 1978- 2 MLJ 620, it is observed as under.

“6. The principle of construction grants made under instruments in writing seems to be now well-settled not only in this country, but in many other systems as well. The principle accords with common sense and might be stated, broadly, thus: The subject-matter of the grant would depend on the intention of the parties as expressed in the relative conveyance deed.”

Boundaries Preferred Over Survey Number, Extent

Our Apex Court, in Subhaga v. Shoba, 2006-5 SCC 466, observed as under:

“That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail.”

The Church of South India Trust Association v. Raja Ambrose, (1978) 2 MLJ 620, it is further laid down as under:

“Where the deed sets out the extent and measurements correctly, there can be no difficulty in determining the subject-matter of the grant. But where no measurements are given or the extent mentioned in the deed is either vague or is only a rough and ready approximation, one has to look to other indications in the deed in order to fix the identity of the property which is the subject of the grant. If the deed in question sets out the boundaries of the property conveyed, then these boundaries will have to be accepted as a clear reflection of the intention of the grantor and they will conclude not only the exact positioning of the property conveyed, but also its true extent. The boundaries given in the deed will also, in such cases, prevail over the measurements given in the deed, if these are given as approximations.”

In T. Venkata Vijaya Lakshmi v. Kodali Rayana Rao, 2023-4 ALT 272; 2023-3 CivCC 746, it is held as under:

“It is settled law that boundaries prevail over extent and survey number as also measurements.”

Madhya Pradesh High Court in Rajesh Parmar v. Under Secretary, Petroleum Corporation, MANU/MP/0121/2019, found that non-mentioning of survey number is not a ground to reject the application of Petrol Pump. It is stated as under:

“… However, inadvertence or clerical error occurred in the description of land in the application could not have been stretched too far to conclude that the land offered is at variance with the survey number mentioned in the application to declare the applicant not eligible for allotment of petrol pump. ….”

Relying on Rajesh Parmar v. Under Secretary it is held in Indian Oil Corporation Limited v. Gosala Raju, AIR 2022 AP (NOC) 260, as under:

“10. In any view of the matter, as per the settled law, when there is a mistake in survey number, extent and boundaries will prevail.”

In Vishnu Anant Dessai v. Govind Vithal Sawant, 2020-5 All MR 496 (Bom), it is found as under:

“… On this score, the common law principles compel us to conclude that the boundaries prevail over extent and even survey numbers.”

The same principle can be seen in Ramaiya Asari v. Ramakrishna Naicker, 2000 (3) MLJ 327.

In Kannu Reddiar v. T. Palanirajan, 1995 (2) LW 769, it is emphasised as under:

“It is well established general principles of law that the boundary descriptions shall prevail over survey number, extent, etc., where there is conflict.”

In PKAB Coop. Society v. Govt. of Palestine, AIR 1948 PC 207,laid down as under:

“In construing a grant of land a description by fixed boundaries is to be preferred to a conflicting description by area. The statement as to area is to be rejected as falsa demonstratio.” (Quoted in: K. P. Parameswaran Pillai v. Parvathy Amma Gourikutty Amma, 1985 KerLJ 54).

In Ibrahim Koyakutty v. Varghese, 1951 KLT 117, it is observed as under:

“3. … .. But in the absence of circumstances indicating that application of the boundaries in determining the extent of the land that passed under the conveyance will lead to an error, usually in cases conflict between the area, survey number and the boundaries mentioned in the document the boundaries predominate and the rest is considered only as false or erroneous description. In this case there are no such circumstances and therefore we are clearly of the view that the disputed property is included in the documents mentioned above. … ……..” (quoted in: Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959.)

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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) – Salient Features & Major Changes from CrPC

Saji Koduvath, Advocate, Kottayam.

Introduction

3 New Acts of 2023

Bharatiya Nyaya Sanhita, 2023,
Bharatiya Nagarik Suraksha Sanhita, 2023,
Bharatiya Sakshya, 2023

The new Acts replaced three colonial-era criminal laws –

The Code of Criminal Procedure (CrPC),1973 (upto 1973, 1898 CrPC),
The Indian Penal Code (IPC),1860 and
The Indian Evidence Act, 1872.

Read – Bharatiya Nyaya Sanhita, 2023: Important Changes from the Indian Penal Code

Major Changes in the Evidence Act by Bhartiya Sakshya Adhiniyam, 2023

BNSS – Major Changes from CrPC

CHAPTER I: PRELIMINARY

S. 2 BNSS
Definitions.

(New) Insertions

Sec. 2.
(a) “Audio-video electronic”
(b) “bail”
(d) “bail bond”
(e) “bond”
(i) “Electronic communication”
(l) “Investigation” – Explanation

CHAPTER II: CONSTITUTION OF CRIMINAL COURTS AND OFFICES (s. 6 – 20)

S. 15 BNSS (S. 21 – CrPC)
Change –

State Government may appoint –
any police officer not below the rank of Superintendent of Police (“to be known”) as Special Executive Magistrates

15. Special Executive Magistrates The State Government may appoint, for such term as it may think fit, Executive Magistrates or any police officer not below the rank of Superintendent of Police or equivalent, to be known as Special Executive Magistrates, for particular areas …. ….. …..

S. 20 BNSS (S. 25A – CrPC)

Change –

Establishment of –
District Directorate of Prosecution.
[Earlier, there was Directorate of Prosecution in State-level (only); and there was Dy. Directors in District-level].

Sub-sections (8), (9), (10) and (11) are
new provisions.

20.Directorate of Prosecution:
(1) The State Government may establish,— (a) a Directorate of Prosecution in the State consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it think fit; and (b) District Directorate of Prosecution in every district consisting of as many Deputy Directors and Assistant Directors of Prosecution, as it thinks fit.
(2) A person shall be eligible to be appointed,— (a) as a Director of Prosecution or a Deputy Director of Prosecution, if he has been in practice as an advocate for not less than fifteen years or is or has been a Sessions Judge; (b) as an Assistant Director of Prosecution if he has been in practice as an advocate for not less than seven years or has been a Magistrate of the first class.
(3) The Directorate of Prosecution shall be headed by the Director of Prosecution, who shall function under the administrative control of the Home Department in the State.
(4) Every Deputy Director of Prosecution or Assistant Director of Prosecution shall be subordinate to the Director of Prosecution; and every Assistant Director of Prosecution shall be subordinate to the Deputy Director of Prosecution.
(5) …. (12) …..

CHAPTER III: POWER OF COURTS (Ss. 21 to 29)

S. 23 BNSS (S. 29 – CrPC)

Change –
in amount of fine.

New punishment –
community service.

“Community service” shall mean –
the work
which the Court may order
a convict to perform
as a form of punishment
that benefits the community,
for which “he” shall not be entitled to any remuneration.

Omitted –
jurisdiction in case of juveniles (S. 27 CrPC).

23. Sentences which Magistrates may pass. (1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.
(2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding fifty thousand rupees, or of both, or of community service.
(3) The Court of Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding ten thousand rupees, or of both, or of community service.
Explanation.—”Community service” shall mean the work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.

CHAPTER V: ARREST OF PERSONS (s. 35 – 62)

S. 35(7) BNSS (S. 41 &41A – CrPC) New Provision – as to arrest Powers to SP– in offences which are punishable for imprisonment, less than 3 years – Not to give permission to arrest an infirm person or a person above 60 years of age	S. 35. When police may arrest without warrant. (7). No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age.
S. 40 BNSS (S. 43 – CrPC) Words-Change. S. 43 CrPC – “police officer shall re-arrest him”	40. Arrest by private person S. 40(2) BNSS – “a police officer shall take him in custody”.
S. 43(3) BNSS (S. 46 – CrPC) New subsection (3) Handcuffing – Permitted to a habitual or repeat offender or accused of serious offences.	S. 43(3). The police officer may, keeping in view the nature and gravity of the offence, use handcuff while effecting the arrest of a person who is a habitual, repeat offender who escaped from custody, who has committed offence of organised crime, offence of terrorist act, drug related crime, or offence of illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offences against children, offences against the State, including acts endangering sovereignty, unity and integrity of India or economic offences.

CHAPTER VI: PROCESSES TO COMPEL APPEARANCE (s.63 – 93)

S. 63(ii) BNSS (S. 61 CrPC) New Clause – Summons – by electronic communication	63. Form of Summons Every summons issued by a court under this Sanhita shall be (i) in writing …….. (ii) in an encrypted or any other form of electronic communication and shall bear the image of the seal of the court or digital signature.
S. 66 BNSS (S. 64 – CrPC) Change – Summons can be given to “some” (an) adult member” Formerly “male” member.	Service when person summoned cannot be found BNSS 66- “some adult member” of their family residing with him. CrPC 64- “some adult male member” of their family residing with him.

CHAPTER VII: PROCESSES TO COMPEL THE PRODUCTION OF THINGS (S. 94 -110)

S. 105 BNSS

New Provision

– Search –
Shall be (by) recording through
“any” (an) audio-video electronic means,
preferably mobile phone .

105: Recording of search and seizure through audio-video electronic means. The process of conducting search of a place or taking possession of any property, article or thing under this Chapter or under section 185, including preparation of the list of all things seized in the course of such search and seizure and signing of such list by witnesses, shall be recorded through any audio-video electronic means preferably mobile phone and the police officer shall without delay forward such recording to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.

S. 107 BNSS

New Provision –

(1) A police officer can,
with the approval of the SP,
apply for the attachment of any property obtained as a result of a criminal activity.

(6) Court can direct –
the District Magistrate
to rateably distribute
(the attached or seized properties)
to the affected persons.

107: Attachment, forfeiture or restoration of property
(1) Where a police officer making an investigation has reason to believe that any property is derived or obtained, directly or indirectly, as a result of a criminal activity or from the commission of any offence, he may, with the approval of the Superintendent of Police or Commissioner of Police, make an application to the Court or the Magistrate exercising jurisdiction to take cognizance of the offence or commit for trial or try the case, for the attachment of such property.
(6) If the Court or the Magistrate finds the attached or seized properties to be the proceeds of crime, the Court or the Magistrate shall by order direct the District Magistrate to rateably distribute such proceeds of crime to the persons who are affected by such crime.

CHAPTER X: ORDER FOR MAINTENANCE OF WIFES, CHILDREN AND PARENTS (S.144 – 147)

S. 144 & 145 BNSS (S. 125 & 126 – CrPC)

Change – maintenance of wifes, children and parents –

– Clause 1(d) added –
proceedings can be taken –
“where his father or mother resides”.

144. Order for maintenance of wifes, children and parents
(1) If any person having sufficient means neglects or refuses to maintain – (a) his wife, unable to maintain herself …..”
(child, parents etc. …..)
145. Procedure: (1) Proceedings under section 144 may be taken against any person in any district—
(a) where he is; or (b) where he or his wife resides; or (c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child; or (d) where his father or mother resides.

CHAPTER XII: PREVENTIVE ACTION OF POLICE (s.168 -172)

S. 172 BNSS

New Provision –

(1) All persons are bound to conform to
lawful directions of police.

(2) A police officer has power to detain or remove any person, also.

Inspection of weights and measures
[in S. 153 CrPC] omitted.

172: Persons bound to conform to lawful directions of police: (1) All persons shall be bound to conform to the lawful directions of a police officer given in fulfilment of any of his duty under this Chapter.
(2) A police officer may detain or remove any person resisting, refusing, ignoring or disregarding to conform to any direction given by him under subsection (1) and may either take such person before a Magistrate or, in petty cases, release him as soon as possible within a period of twenty-four hours.

CHAPTER XIII: INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE(S. 173 – 196)

S. 173 BNSS (S. 154 – CrPC) – Furnishing FIR – (1) The scope of giving FIR is expanded –it can be “irrespective of the area”– This corresponds to the concept of ‘Zero FIR’ It can also be “by electronic communication” (e-FIR). (3) Police officer may with the prior permission from an officer not below the rank of Deputy Superintendent of Police— (i) proceed to conduct Preliminary inquiry to ascertain whether there exists a prima facie case – for offences punishable for 3 years or more but less than 7 years. Note: The CrPC also requires (in assaults to outrage the modesty, rape etc.)– “the recording of such information shall be videographed”.	173. Information in cognizable cases: (1) Every information relating to the commission of a cognizable offence, irrespective of the area where the offence is committed, may be given orally or by electronic communication to an officer in charge of a police station, and if given— (i) orally, it shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it; (ii) by electronic communication, it shall be taken on record by him on being signed within three days by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may by rules prescribe in this behalf: Provided that if the information is given by the woman against whom an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer: Provided further that— (a) in the event that the person against whom an offence under section 64, section 65, …. (etc.) ………. is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be; (b) the recording of such information shall be videographed; (c) ….. (2) … (3) Without prejudice to the provisions contained in section 175, on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in-charge of the police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence,— (i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or (ii) proceed with investigation when there exists a prima facie case. (4) ….
S. 174 (1) (ii) BNSS (S. 155 – CrPC) New provision – Investigation – Forward the daily diary report of cases fortnightly to the Magistrate.	174. Information as to non-cognizable cases and investigation of such cases. (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book ……. and,— (i) refer the informant to the Magistrate; (ii) forward the daily diary report of all such cases fortnightly to the Magistrate. (2) ….(3)…..(4) …
S. 176 BNSS (S. 157 – CrPC) Change Investigation (1)In investigation of rape – statement of the victim shall be recorded at her residence or a place of her choice and as far as practicable by a woman police officer and the statement may also be recorded through an audio-video electronic means including mobile phone (2) Forward the daily diary report fortnightly to the Magistrate. (3) Forensic expert’s visit (in major offences – punishable for 7 years or more). [It will come into effect – from such date, as may be notified (within a period of five years) by the State Government.] For offences punishable for seven years or more– the officer in charge of a police station shall, cause the forensic expert to visit the crime scene to collect forensic evidence and also cause videography of the process on mobile phone or any other electronic device	176. Procedure for investigation (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 175 to investigate, he shall forthwith send a report of the same to a Magistrate …. Provided that— (a) …. (b) … Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality and such statement may also be recorded through any audio-video electronic means including mobile phone. (2) In each of the cases mentioned in clauses (a) and (b) of the first proviso to sub-section (1), the officer in charge of the police station shall state in his report the reasons for not fully complying with the requirements of that sub-section by him, and, forward the daily diary report fortnightly to the Magistrate and in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by rules made by the State Government. (3) On receipt of every information relating to the commission of an offence which is made punishable for seven years or more, the officer in charge of a police station shall, from such date, as may be notified within a period of five years by the State Government in this regard, cause the forensic expert to visit the crime scene to collect forensic evidence in the offence and also cause videography of the process on mobile phone or any other electronic device: Provided that ….
S. 179 BNSS (S. 160 – CrPC) Change – Not to require attendance of witnesses at a place other than his residence – male under the age of 15 above the age of 60 woman mentally or physically disabled a person with acute illness Age, “sixty-five years” (in CrPC) is reduced to “sixty years” and the words “or a person with acute illness” are added.	179. Police officer’s power to require attendance of witnesses. (1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person …….”: Provided that no male person under the age of fifteen years or above the age of sixty years or a woman or a mentally or physically disabled person or a person with acute illness shall be required to attend at any place other than the place in which such person resides: Provided further that if such person is willing to attend at the police station, such person may be permitted so to do. (2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence.
S. 183 BNSS (S. 164 – CrPC) Change – – Confessions – If the person making the statement is disabled, the statement shall be recorded through audio-video electronic means preferably by mobile phone. Note: In CrPC, only a “Metropolitan Magistrate or Judicial Magistrate” could record confession. It was also provided in CrPC that “no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred”. The CrPC also requires (in assaults to outrage the modesty, rape etc.)– “… may also be recorded by audio-video electronic means in the presence of the advocate …” The CrPC further requires – If the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be video graphed.	183: Recording of confessions and statements (1) Any Magistrate of the District in which the information about commission of any offence has been registered, may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards but before the commencement of the inquiry or trial: Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence: …. (2) ….(3) …(4) ….(5) …. (6)(a) In cases punishable under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023, the Magistrate shall record the statement of the person against whom such offence has been committed in the manner specified in sub-section (5), as soon as the commission of the offence is brought to the notice of the police: Provided that such statement shall, as far as practicable, be recorded by a woman Magistrate and in her absence by a male Magistrate in the presence of a woman: Provided further that in cases relating to the offences punishable with imprisonment for ten years or more or with imprisonment for life or with death, the Magistrate shall record the statement of the witness brought before him by the police officer: Provided also that if the person making the statement is temporarily or permanently, mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement: Provided also that if the person making the statement is temporarily or permanently, mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be recorded through audio-video electronic means preferably by mobile phone; (b) …. (7) …
S. 184 BNSS (S. 164A – CrPC) Change – examination of victim of rape Time fixed – medical practitioner to forward the report – within a period of seven days –	184: Medical examination of victim of rape: (1) … to… (5) ….. (6) The registered medical practitioner shall, within a period of seven days forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 193 as part of the documents referred to in clause (a) of sub-section (6) of that section. (7) ….
S. 185(2) BNSS (S. 165 – CrPC) new – Search Search shall be recorded through audio video, or electronic means. S. 185(5) requires copies of record be sent to Magistrate forthwith, but not later than 48 hours.	S. 185: Search by police officer 185. (1) …. (2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search in person: Provided that the search conducted under this section shall be recorded through audio-video electronic means preferably by mobile phone. (5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith, but not later than forty-eight hours, be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate.
S. 187(3) BNSS (S. 167(2) – CrPC) Magistrate may authorise the detention of the accused in custody (beyond the period of fifteen days), if he is satisfied that adequate grounds exist for doing so, for a total period exceeding — (i) 90 days (for serious offences) or (ii) 60 days, other offence, and, on the expiry of the said period of 90 days, or 60 days, the accused shall be released on bail. Proviso to S. 167(2) – CrPC Referring s. 167 CrPC it is held in CBI v. Anupam J. Kulkarni: AIR 1992 SC 1768: 1992 (3) SCC 141, as under: “The legislature … has at the same time taken care to see that the interests of the accused are not jeopardised by his being placed under police custody beyond a total period of 15 days, under any circumstances, irrespective of the gravity of the offence or the serious nature of the case.” (Contra view: CBI v. Vikas Mishra, 2023-3 SCR 321, and V. Senthil Balaji v. State, 2024-3 SCC 51).. The clause “otherwise than in custody of the police” is omitted in BNSS. Thereby it is possible to order police custody (even) for the entire 90/60 days.	187(3). The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding— (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIV for the purposes of that Chapter. Proviso to S. 167(2) – CrPC stipulated: “Provided that—(a) the magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist….” It is noticeable – (i) “otherwise than in custody of the police” is judicial custody. (ii) “Beyond the period of fifteen days” indicates that the maximum period allowed in police custody is 15 days (within the stipulated 90/60 days).
S. 193 BNSS (S. 173 – CrPC) Change – (2) investigation investigation of some offences under BNSS and POCSO Act shall be completed within two months. (9) further investigation. permission of magistrate is not needed after a (final) report has been forwarded. Further investigation “during the trial“ It can be conducted (only) with the permission of the Court and it shall be completed within a period of 90 days After 90 days, further permission of the Court is needed.	193. Report of police officer on completion of investigation (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) The investigation in relation to an offence under sections 64, 65, 66, 67, 68, 70, 71 of the Bharatiya Nyaya Sanhita, 2023 or under sections 4, 6, 8 or section 10 of the Protection of Children from Sexual Offences Act, 2012 shall be completed within two months from the date on which the information was recorded by the officer in charge of the police station. (3) …. to (8) …… (9) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (3) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form as the State Government may, by rules, provide; and the provisions of sub-sections (3) to (8) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (3): Provided that further investigation during the trial may be conducted with the permission of the Court trying the case and the same shall be completed within a period of ninety days which may be extended with the permission of the Court.

CHAPTER XIV: JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

S. 209 BNSS (S. 189 – CrPC)

Change –

In offences committed outside India Court can issue a commission for taking depositions made, or exhibits produced –
• in physical or electronic form (also) before a judicial officer in that territory or before a diplomatic or consular representative of India for that territory.

209. Receipt of evidence relating to offences committed outside India. When any offence alleged to have been committed in a territory outside India is being inquired into or tried under the provisions of section 208, the Central Government may, if it thinks fit, direct that copies of depositions made or exhibits produced, either in physical form or in electronic form, before a judicial officer, in or for that territory or before a diplomatic or consular representative of India in or for that territory shall be received as evidence by the Court holding such inquiry or trial in any case in which such Court might issue a commission for taking evidence as to the matters to which such depositions or exhibits relate.

CHAPTER XVI COMPLAINTS TO MAGISTRATES

S. 223 BNSS (S. 200 – CrPC)
Examination of complainant.

Change –

New Proviso added to Sub Sec. (1) –
whereby no cognizance shall be taken without giving the accused an opportunity of being heard:

Sub Sec. (2) provided –
a Magistrate shall not take cognizance on a complaint against a public servant unless –
the public servant is given an opportunity to make assertions as to the situation that led to the incident alleged.

200. Examination of complainant.
(1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:
Provided further …..
(2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless—
(a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and
(b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received.

CHAPTER XIX – TRIAL BEFORE A COURT OF SESSION (s.248 – 260)

S. 250 BNSS (S. 227 – CrPC) (1) application for or Discharge – time limit 60 days of committal.	250. Discharge. (1) The accused may prefer an application for discharge within a period of sixty days from the date of committal under section 232.
S. 251 BNSS (S. 228 – CrPC) Change (1) Time limit for framing charge – 60 days from hearing on charge. (2) Accused can “present either physically or through audio-video electronic means.”	251. Framing of charge. (1)(a) ….. (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused within a period of sixty days from the date of first hearing on charge. (2) Where the Judge frames any charge under clause (b) of sub-sec. (1), the charge shall be read and explained to the accused present either physically or through electronic means and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
S. 254 BNSS (S. 231 – CrPC) Change – Evidence of a witness • may be recorded by audio-video means • evidence of any police officer or public servant may be taken through audio-video means	254. Evidence for prosecution (1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution: Provided that evidence of a witness under this sub-section may be recorded by audio-video electronic means. (2) The deposition of evidence of any police officer or public servant may be taken through audio-video electronic means. (3) …..
S. 258 BNSS (S. 235 – CrPC) Change – Judgment: Period fixed – 30 days from arguments	258. Judgment of acquittal or conviction. (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case, as soon as possible, within a period of thirty days from the date of completion of arguments, which may for specific reasons extend to a period of sixty days. (2) ….

CHAPTER XXII – SUMMARY TRIALS (s. 283 – 288)

S. 283 BNSS (S. 260 – CrPC)

Replaces CrPC sections.

Offences listed in this Section shall be tried in a summary way.

[In IPC, summary-trial (of certain offences) was at the discretion of the Magistrate]

(2) Offences punishable below 3 years
The Magistrate may,
after hearing the accused,
and recording reasons –
try all or any of the offences
punishable below 3 years –
in a summary way

283. Power to try summarily.
(1) Notwithstanding anything contained in this Sanhita—
(a) any Chief Judicial Magistrate; (b) Magistrate of the first class, shall try in a summary way all or any of the following offences:—
(i) theft….;
(ii) receiving or retaining stolen property, …. value of the property does not exceed twenty thousand rupees;
(iii) assisting in the concealment or disposal of stolen property …, where the value of such property does not exceed 20,000 rupees;
(iv) offences under section 330 of the BNS, 2023;
(v) insult with intent to provoke a breach of the peace, and criminal intimidation, under section 349 …
(vi) abetment of any of the foregoing offences;
(vii) an attempt to commit any of the foregoing offences, …
(viii) offence … under section 20 of the Cattle-trespass Act, 1871.
(2) The Magistrate may, after giving the accused a reasonable opportunity of being heard, for reasons to be recorded in writing, try in a summary way all or any of the offences not punishable with death or imprisonment for life or imprisonment for a term exceeding three years.

CHAPTER XXIII: PLEA BARGAINING (s. 289 – 300)

S. 290 BNSS (S. 265B – CrPC)

Change –
Plea bargaining: time limit –
30 days from framing of charge.

290. Application for plea bargaining. (1) A person accused of an offence may file an application for plea bargaining within a period of thirty days from the date of framing of charge in the Court in which such offence is pending for trial.

CHAPTER XXV: EVIDENCE IN INQUIRIES AND TRIALS (s. 307 – 336)

S. 330 BNSS (S. 294 – CrPC)

Change

In calling upon (opposite side) to admit or deny the genuineness of document.

New provisos
• First, time limit of 30 days. (Court can relax the time limit)
• Second, no expert be called to appear, unless report is disputed.

330.No formal proof of certain documents
(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused or the advocate for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document soon after supply of such documents and in no case later than thirty days after such supply:
Provided that the Court may, in its discretion, relax the time limit with reasons to be recorded in writing:
Provided further that no expert shall be called to appear before the Court unless the report of such expert is disputed by any of the parties to the trial.

S. 336 BNSS

New

“Evidence” of public servants, experts, police officers
transferred,
retired, or
died –
• “be secured” through the successor officer.

336. Evidence of public servants, experts, police officers in certain cases. Where any document or report prepared by a public servant, scientific expert, medical officer or investigating officer is purported to be used as evidence in any inquiry, trial or other proceeding under this Sanhita, and—
(i) such public servant, expert or officer is either transferred, retired, or died; or (ii) such public servant, expert or officer cannot be found or is incapable of giving deposition; or (iii) securing presence of such public servant, expert or officer is likely to cause delay in holding the inquiry, trial or other proceeding, the Court shall secure presence of successor officer of such public servant, expert, or officer who is holding that post at the time of such deposition to give deposition on such document or report.

CHAPTER XXVI: GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS (s. 337 to 366)

S. 349 BNSS (S. 311A – CrPC)

Power of Magistrate to order to give specimen signatures or handwriting

The words “or finger impressions” and “or
voice sample” are new.

Under S. 311A CrPC, no order could be made unless the person has (at some time) been arrested in that proceeding.

349.Power of Magistrate to order person to give specimen signatures or handwriting. If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Sanhita, it is expedient to direct any person, including an accused person, to give specimen signatures or finger impressions or handwriting or voice sample, he may make an order to that effect and in that case …
Provided …
Provided further that the Magistrate may, for the reasons to be recorded in writing, order any person to give such specimen or sample without him being arrested.

S. 356 BNSS

New –

proclaimed offenders – no immediate prospect of arresting him-
• Court shall, proceed with the trial in the like manner as if he was present.

356. Inquiry trial or judgment in absentia of proclaimed offender
(1) Notwithstanding anything contained in this Sanhita or in any other law for the time being in force, when a person declared as a proclaimed offender, whether or not charged jointly, has absconded to evade trial and there is no immediate prospect of arresting him, it shall be deemed to operate as a waiver of the right of such person to be present and tried in person, and the Court shall, after recording reasons in writing, in the interest of justice, proceed with the trial in the like manner and with like effect as if he was present, under this Sanhita and pronounce the judgment.

CHAPTER XXIX: THE JUDG MENT (s. 392 – 406

S. 398 BNSS

New –
Witness protection scheme

398. Witness protection scheme. Every State Government shall prepare and notify a Witness Protection Scheme for the State with a view to ensure protection of the witnesses.

CHAPTER XXXIX: MISCELLANEOUS (S. 520 – 531)

S. 530 BNSS

New –

Trial and proceedings–
may be held in electronic mode,
by use of electronic communication or use of audio-video electronic means.

530. Trial and proceedings to be held in electronic mode
All trials, inquires and proceedings under this Code, including – (i) summons and warrant, issuance, service and execution thereof; (ii) holding of inquiry; (iii) examination of complainant and witnesses; (iv) trial before a Court of Session, trial in warrant cases, trial in summons-cases, summary trials and plea bargaining; (v) recording of evidence in inquiries and trials; (vi) trials before High Courts; (vii) all appellate proceedings and such other proceedings, may be held in electronic mode, by use of electronic communication or use of audio-video electronic means.

S. 531 BNSS
Repeal and savings

All investigations, trials, appeals, etc. pending on 1^st July 2024 shall be proceeded under the provisions of the CrPC (except inquiry under Chapter XIV of the CrPC – as to taking cognizance etc.)

Note:
The offences, committed before 1^st July 2024 (and its punishment), are dealt with under the IPC.

531. Repeal and savings.
(1) The Code of Criminal Procedure, 1973 is hereby repealed.
(2) Notwithstanding such repeal—
(a) if, immediately before the date on which this Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1973, as in force immediately before such commencement (hereinafter referred to as the said Code), as if this Sanhita had not come into force;
…

Epitome

Major changes include –

1. Use of technology and electronic mode
2. Mandates collection of forensic evidence in investigation (after effecting Notification thereof within 5 years) – for offences punishable for seven years or more.
3. Deadlines –
- Judgment within 30 days of the arguments (extendable up to 60 days);
- Information to the victim as to the progress of the investigation within 90days, and
- Framing of charges by a sessions court within 60 days of the first hearing on such charges.
4. Trial, even in absence of a proclaimed offender.
5. Introduced:
- ‘Preliminary inquiry’ before filing FIR (for offences punishable for 3 years or more but less than 7 years).
- Concept of Zero FIR (“irrespective of the area”) and e-FIR.
6. Further investigation –
permission of magistrate is not needed after a (final) report has been forwarded.
But, for further investigation “during the trial” permission of the Court is needed.
7. “Evidence” of public servants can “be secured” through the successor officer.
8. Collection of Samples (including finger impressions and voice), without arrest.
9. Power of police to detain or remove any person.
10. State Government shall prepare Witness protection scheme

Conclusion

Doubts are seen raised, and questions are boosted –

Was a new enactment really required?
Wasn’t it proper to bring-in the changes by an amendment?

Whatever may be the answer, one thing is important –

Implementation of technology and electronic mode in Investigation and Trial (including that in Recording certain FIRs, Search and Seizure etc.) is ‘in tune with the times’.

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Civil Suits: Procedure & Principles

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Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

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Land Laws/ Transfer of Property Act

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

All Illegal Agreements are Void; but All Void Agreements are Not Illegal

Taken from – “Void, Voidable, Ab Initio Void, and Sham Transactions“

Jojy George Koduvath, Saji Koduvath Associates

All Illegal Agreements are Void, But the Reverse is Not True

J.B. Pardiwala, J., in Hasvantbhai Chhanubhai Dalal v. Adesinh Mansinh Raval, 2019-2 GujLH 357, observed as under:

“DIFFERENCE BETWEEN “VOID” AND “ILLEGAL” AGREEMENT:
58. The Indian Contract Act, 1872 has made it clear that there is a thin line of difference between void and illegal agreement.
- A void agreement is one which may not be prohibited under law, while –
  - an illegal agreement is strictly prohibited by law and the parties to the agreement can be penalized for entering into such an agreement.
- A void agreement has no legal consequences, because it is null from the very beginning.
- Conversely, the illegal agreement is devoid of any legal effect, since it is started.
- All illegal agreements are void, but the reverse is not true.
- If an agreement is illegal, other agreements related to it are said to be void.
- An agreement that violates any law or whose nature is criminal or is opposed to any public policy or immoral is an illegal agreement.
These agreements are void ab initio, and so the agreements collateral to the original agreement are also void. Here the collateral agreement refers to the transaction associated or incidental to the main agreement. The difference between void and illegal agreement can be drawn clearly on the following grounds:
[1] An agreement which loses its legal status is a void agreement. An illegal agreement is one which is not permissible under law.
[2] Certain void agreements are void ab initio while some agreements become void when it loses its legal binding. On the other hand, an Illegal agreement is void since the very beginning. A void agreement is not prohibited by Indian Penal Code (IPC), but IPC strictly prohibits an illegal agreement.
[3] The scope of a void contract is comparatively wider than an illegal contract as all agreements which are void may not necessarily be illegal, but all illegal agreements are void from its inception.
[4] A void agreement is not punishable under law whereas an illegal agreement is considered as an offence, hence the parties to it are punishable and penalised under Indian Penal Code (IPC).
[5] Collateral agreements of a void agreement may or may not be void i.e. they may be valid also. Conversely, collateral agreements of an illegal agreement cannot be enforceable by law as they are void ab initio.
It is quite clear that the void and illegal agreement are very different. One of the factors that make an agreement void is the illegality of the contract, such as contract whose object or consideration is unlawful. Moreover, in both the two agreements loses its enforceability by law.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Bharatiya Nyaya Sanhita, 2023: Important Changes from the Indian Penal Code

Saji Koduvath, Advocate, Kottayam

Indian Penal Code

The Indian Penal Code (IPC) was (originally) drafted by the First Law Commission in 1834.

Chairman of the first Law Commission was Thomas Babington Macaulay.
It was introduced on January 1, 1860, after making certain changes to the draft.

3 New Acts of 2023

Bharatiya Nyaya Sanhita, 2023,
Bharatiya Nagarika Suraksha Sanhita, 2023,
Bharatiya Sakshya Adhiniyam, 2023

The new Acts replaced three colonial-era criminal laws –

the Code of Criminal Procedure (CrPC),1973,
the Indian Penal Code (IPC),1860 and
the Indian Evidence Act,1872.

Read: BNSS – Major Changes from CrPC

Major Changes in the Evidence Act by Bhartiya Sakshya Adhiniyam, 2023

Union Home Minister introduced the new Acts

Union Home Minister, Amit Shah, introduced the new Acts. He said in Lok Sabha –

“These three Acts, which will be replaced, were made to strengthen and protect British rule and their purpose was to punish, not to give justice. We are going to bring changes in both these fundamental aspects.”

Bharatiya Nyaya Sanhita, 2023 (BNS)

The IPC, and the new Sanhita, covered the criminal offences affecting –

the property,
the human body,
animals,
public order,
defamation,
public health, and
offences against the state.

The Bharatiya Nyaya (Second) Sanhita Bill, 2023, received the assent of Indian President , on December 25, 2023.

The Nyaya Sanhita, 2023 gives special attention to

offences against women, children, murder and state; and
offences by gang activity.

It introduced a new punishment –

“Community Service“.

Bharatiya Nyaya Sanhita, 2023 consists of 358 sections. The IPC, 1860 consisted of 511 sections.

Significant Changes

1. Definition of ‘child’

Sec. 2(3) of BNS defined “child” as under:

“ ‘child’ means any person below the age of eighteen years.”

In the IPC ‘minor’ was used. It was not defined. New definition in BNS – ‘child’ – gives clarity

2. Definition of ‘document’ – Included Electronic and digital records

Sec. 2(8) of BNS defines ‘document’ as under

Sec. 2(8) “ ‘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, and includes electronic and digital record, intended to be used, or which may be used, as evidence of that matter.”

IPC Provision

29. “Document”.—’The word “document” denotes 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, as evidence of that matter. Explanation …”

3. Definition of ‘movable property’

‘movable property’ has been redefined in Sec. 2(21), BNS –

Sec. 2(21) “movable property” includes property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth;”

IPC Provision

Sec. 22. “Movable property”.—’The words “movable property” are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.’

4. ‘Community Service’

Sec. 4 of the new Act reads:

“4. Punishments: The punishments to which offenders are liable under the provisions of this Sanhita are—
- (a) Death;
- (b) Imprisonment for life;
- (c) Imprisonment, which is of two descriptions, namely:—
- (1) Rigorous, that is, with hard labour; (2) Simple;
- (d) Forfeiture of property;
- (e) Fine;
- (f) Community Service.“

Sec. 8(4) and (5)

Sec. 8(4) and (5) says as to ‘imprisonment in default of community service‘.

It reads –

“(4) The imprisonment which the Court imposes in default of payment of a fine or in default of community service may be of any description to which the offender might have been sentenced for the offence.
(5) If the offence is punishable with fine or community service, the imprisonment which the Court imposes in default of payment of the fine or in default of community service shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine or in default of community service, shall not exceed,—
(a) two months when the amount of the fine does not exceed five thousand rupees; (b) four months when the amount of the fine does not exceed ten thousand rupees; and
(c) one year in any other case”

Punishment of community service

Punishment of community service are given in

‘public servant unlawfully engaging in trade’,
‘Non-appearance in response to a proclamation under Section 84 of Bharatiya Nagarik Suraksha Sanhita, 2023’,
Attempt to commit suicide,
to compel or restrain exercise of lawful power.
Misconduct in public by a drunken person’,
defamation.

5. Sec. 48 – Abetment outside India – constitute an offence

“48. Abetment outside India for offence in India – A person abets an offence within the meaning of this Sanhita who, without and beyond India, abets the commission of any act in India which would constitute an offence if committed in India.”

6. Exception 2 to sec. 63 – Rape Wife – age changed

Sec. 63 deals with offence of Rape. Exception 2 to sec. 63 of BNS provides –

“Exception 2.––Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
- Under section 375 of IPC the age limit was 15 years.

7. Sec. 69 – Sexual intercourse by employing deceitful means, etc.

“69. Sexual intercourse by employing deceitful means, etc.: Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Explanation.—“deceitful means” shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity.”

8. Sec. 70 – Gang Rape

IPC – S. 376D corresponds to S. 70(1). IPC – S. 376DB corresponds to S. 70(2).

The age 12 years in IPC is increased to 18 years in BNS.

Ingredients (Gang Rape) in nutshell –

rape by one or more persons
they constitute a group or
acting in furtherance of a common intention

Punishment

each one shall be deemed to have committed the offence of rape
punished with rigorous imprisonment – not be less than twenty years,
may extend to imprisonment for life – mean imprisonment for the remainder of that person’s natural life.
If woman under eighteen years of age is raped – shall be punished with imprisonment for life – mean imprisonment for the remainder of that person’s natural life.

“70. Gang Rape:

(1) Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section shall be paid to the victim.
(2) Where a woman under eighteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section shall be paid to the victim”

9. Sec. 103 – Murder

Higher punishment for certain offences (Mob Lynching etc.).

“103. Murder (1) Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine.
(2) When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to fine.”

10. Sec. 106 – Causing death by negligence.

Under Sec. 106 (i), the BNS, modified the punishment – from 2 years (in IPC) to 5 five years imprisonment.

If negligence by a registered medical practitioner – be punished with imprisonment for a term extending to 2 years and a fine.

Sec. 106(ii) of BNS in cases of hit and run – punishment may extend to ten years, and shall also be liable to fine.

“106. Causing death by negligence (1) Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.
Explanation.— For the purposes of this sub-section, “registered medical practitioner” means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 and whose name has been entered in the National Medical Register or a State Medical Register under that Act.
(2) Whoever causes death of any person by rash and negligent driving of vehicle not amounting to culpable homicide, and escapes without reporting it to a police officer or a Magistrate soon after the incident, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine.”

11. Sec. 111 – Organised crime.

Sec. 111 of the BNS, – punishments for organized crime such as –

land grabbing, kidnapping,
contract killing, cybercrime, extortion,
trafficking of persons or goods or weapons or drugs, and
financial scams etc.

Ingredients to attract this offence, in nutshell –

unlawful activity (stated above)
by any person or a group of persons acting in concert,
(acting) singly or jointly _{(appears – these words are surplusage)},
either as a member of an organised crime syndicate or on behalf of such syndicate,
by use of violence, threat etc.
to obtain direct or indirect material benefit

Punishment –

life imprisonment or death and a fine of Rs. 10 Lakhs in case the offence results in the death of any individual and
for others the punishment – 5 years to life imprisonment and a fine of at least 5 lakh rupees.

“111. Organised crime.

(1) Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organised crime.
- Explanation.—For the purposes of this sub-section,––
- (i) “organised crime syndicate” means a group of two or more persons who, acting either singly or jointly, as a syndicate or gang indulge in any continuing unlawful activity;
- (ii) “continuing unlawful activity” means an activity prohibited by law which is a cognizable offence punishable with imprisonment of three years or more, undertaken by any person, either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence, and includes economic offence;
(iii) “economic offence” includes criminal breach of trust, forgery, counterfeiting of currency-notes, bank-notes and Government stamps, hawala transaction, mass-marketing fraud or running any scheme to defraud several persons or doing any act in any manner with a view to defraud any bank or financial institution or any other institution or organisation for obtaining monetary benefits in any form.
(2) Whoever commits organised crime shall,— (a) if such offence has resulted in the death of any person, be punished with death or imprisonment for life, and shall also be liable to fine which shall not be less than ten lakh rupees; (b) in any other case, be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees.
(3) Whoever abets, attempts, conspires or knowingly facilitates the commission of an organised crime, or otherwise engages in any act preparatory to an organised crime, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees.
(4) Any person who is a member of an organised crime syndicate shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees.
(5) Whoever, intentionally, harbours or conceals any person who has committed the offence of an organised crime shall be punished with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees:
Provided that this sub-section shall not apply to any case in which the harbour or concealment is by the spouse of the offender.
(6) Whoever possesses any property derived or obtained from the commission of an organised crime or proceeds of any organised crime or which has been acquired through the organised crime, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than two lakh rupees.
(7) If any person on behalf of a member of an organised crime syndicate is, or at any time has been in possession of movable or immovable property which he cannot satisfactorily account for, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for ten years and shall also be liable to fine which shall not be less than one lakh rupees.

12. Sec. 113 – Terrorist act

It is an act performed with “an intent to threaten or likely to threaten the

unity, integrity, sovereignty
security, or economic security of India or
with the intent to strike terror or
likely to strike terror in the people or
any section of the people in India orin any foreign country”.

Ingredients in nutshell –

(a) using bombs, firearms, poisonous substance etc. to cause death, loss etc.
(b) show of criminal force or causes death of any public functionary or
(c) abducts any person and threatening to kill or injure

Punishment – imprisonment may extend to life imprisonment and fine.

In case resulted in the death of any person – death or life imprisonment and fine.

“113. Terrorist act:

(1) Whoever does any act with the intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,––
(a) by using bombs, dynamite or other explosive substance or inflammable substance or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substance (whether biological, radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause,—
- (i) death of, or injury to, any person or persons; or
- (ii) loss of, or damage to, or destruction of, property; or
- (iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or
- (iv) damage to, the monetary stability of India by way of production or smuggling or circulation of counterfeit Indian paper currency, coin or of any other material; or
- (v) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatening to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter-governmental organisation or any other person to do or abstain from doing any act, commit a terrorist act.
Explanation.—For the purpose of this sub-section,—
- (a) “public functionary” means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary; (
  b) “counterfeit Indian currency” means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features of Indian currency.
(2) Whoever commits a terrorist act shall,—
(a) if such offence has resulted in the death of any person, be punished with death or imprisonment for life, and shall also be liable to fine;
(b) in any other case, be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
(3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine
(4) Whoever organises or causes to be organised any camp or camps for imparting training in terrorist act, or recruits or causes to be recruited any person or persons for commission of a terrorist act, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
(5) Any person who is a member of an organisation which is involved in terrorist act, shall be punished with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.
(6) Whoever voluntarily harbours or conceals, or attempts to harbour or conceal any person knowing that such person has committed a terrorist act shall be punished with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall also be liable to fine: Provided that this sub-section shall not apply to any case in which the harbour or concealment is by the spouse of the offender.
(7) Whoever knowingly possesses any property derived or obtained from commission of any terrorist act or acquired through the commission of any terrorist act shall be punished with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.
Explanation.—For the removal of doubts, it is hereby declared that the officer not below the rank of Superintendent of Police shall decide whether to register the case under this section or under the Unlawful Activities (Prevention) Act, 1967.

13. Sec. 141 – Importation of girl or boy from foreign country

Ingredients in nutshell –

imports into India
girl under the age of twenty-one years or
boy under the age of eighteen years
with intent – to illicit intercourse

“141. Importation of girl or boy from foreign country

Whoever imports into India from any country outside India any girl under the age of twenty-one years or any boy under the age of eighteen years with intent that girl or boy may be, or knowing it to be likely that girl or boy will be, forced or seduced to illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.”

14. Sec. 152 – Act endangering sovereignty, unity and integrity of India.

Ingredients, in nutshell –

purposely, by words, or by visible representation
excites secession or armed rebellion or
encourages separatist activities or
endangers sovereignty and integrity of India; or
indulges in or commits any such act.

“152. Act endangering sovereignty, unity and integrity of India

Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine.
Explanation.––Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section do not constitute an offence under this section.”

15. Sec. 304 – Snatching

Ingredients –

Theft
suddenly or forcibly
seizes any movable property.

“304. Snatching

(1) Theft is snatching if, in order to commit theft, the offender suddenly or quickly or forcibly seizes or secures or grabs or takes away from any person or from his possession any movable property.
(2) Whoever commits snatching, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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Dedication and Vesting
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Breach of Trust
- Breach of Trust and Removal of Trustees
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Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
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Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Declaration of Title & Recovery of Possession: Art. 65, not Art. 58, Limitation Act Governs

Jojy George Koduvath

Introduction

A suit for declaration is governed by Article 58 of the Limitation Act and the period of limitation is three years. However, when (i) declaration of Title and (ii) Recovery are sought for, Article 65 governs; Not, Art. 58.

Declaration of Title & Recovery: Article 65 Governs; Not, 58

Following decisions declares the law on this matter:

C. Natrajan v. Ashim Bai, (2007) 14 SCC 183
N. Thajudeen v. Tamil Nadu Khadi and Village Industries Board, AIR 2024 SC 5641
State of Maharashtra v. Pravin Jethalal Kamdar, (2000) 3 SCC 460
Padmavathy v. Kesava Reddy, 1987-2 KLT 386, Dr. Kochuthomman, J.
Unnikrishnan v. Ponnu Ammal, AIR 1999 Ker. 405
Seshumull M. Shah v. Sayed Abdul Rashid, AIR 1991 Kar. 273
S. Krishnamma v. T.S. Viswajith: 2009 (4) KerLT 840
Gopakumar v. Kamalakshy Purushothaman, 2019-3 KHC 478
Aishani Chandna Mehra v. Rajesh Chandna,2019-0-Supreme(Del) 1-70; Laws (Dlh) 2019-1-288, (Rajiv Sahai Endlaw, J.)
Ashok Kumar v. Gangadhar, 2007 (2) ALD 313
Mechineni Chokka Rao v. Sattu Sattamma, 2006 (1) ALD 116
K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98 (Antony Dominic & Hariprasad, JJ.)

(a) In N. Thajudeen v. Tamil Nadu Khadi and Village Industries Board, AIR 2024 SC 5641, it is held as under:

“In the case at hand, the suit is not simply for the declaration of title rather it is for a further relief for recovery of possession. It is to be noted that when in a suit for declaration of title, a further relief is claimed in addition to mere declaration, the relief of declaration would only be an ancillary one and for the purposes of limitation, it would be governed by the relief that has been additionally claimed. The further relief claimed in the suit is for recovery of possession based upon title and as such its limitation would be 12 years in terms of Article 65 of the Schedule to the Limitation Act.
In C. Mohammad Yunus vs. Syed Unnissa and Others, AIR 1961 SC 808 it has been laid down that in a suit for declaration with a further relief, the limitation would be governed by the Article governing the suit for such further relief. In fact, a suit for a declaration of title to immovable property would not be barred so long as the right to such a property continues and subsists. When such right continues to subsist, the relief for declaration would be a continuing right and there would be no limitation for such a suit. The principle is that the suit for a declaration for a right cannot be held to be barred so long as Right to Property subsist.”

(b) In Gopakumar v. Kamalakshy Purushothaman, 2019-3 KHC 478; 2019-3 Ker LJ 269 it is held as under:

“Article 58 of the Limitation Act would be applicable in a suit for declaration, but it has no application when the relief sought in the plaint is not for a mere declaration, but coupled with other reliefs like injunction, partition, possession etc. and Article 65 of the Limitation Act would come into play giving 12 year period. In the instant case, the relevant Article which can be applied is not Article 58, but Article 65 as the suit was filed not merely for a relief of declaration, but for declaration of title and for recovery of possession of immovable property.”

(c) In Aishani Chandna Mehra v. Rajesh Chandna,2019-0-Supreme(Del) 1-70; Laws (Dlh) 2019-1-288, (Rajiv Sahai Endlaw, J.) observed, referring his own earlier 3 judgments, as under:

“23. Otherwise also, I have in Sunil Kohli v. Subhash Chand Dua 2016 SCC OnLine Del 3244, Ashok Kumar v. Mohd. Rustam(2016) 227 DLT 385, and Capital Land Builders Pvt. Ltd. v. Komal, 2018 SCC OnLine Del 11867, held –
(i) that in suits claiming relief with respect to immoveable property, the relief of declaration, even if claimed, is superfluous and the limitation for the suit would be governed by the limitation provided for the relief of possession; the longer limitation period provided for instituting a suit for recovery of possession would not be curtailed by the lesser limitation of three years provided for a suit for declaration;
(ii) that to hold otherwise would tantamount to providing two different periods of limitation for a suit for recovery of possession of immovable property based on title i.e. of three years if the suit, besides for the said relief is also for the relief of declaration of title and of twelve years, if no relief of declaration is claimed;
(iii) that a relief of declaration of title to immovable property is implicit in a suit for recovery of possession of immovable property based on title inasmuch as without establishing title to property, if disputed, no decree for the relief of possession also can be passed;
(iv) that thus, merely because a plaintiff in such a suit also specifically claims the relief of declaration of title, cannot be a ground to treat him differently and reduce the period of limitation available to him from that provided of twelve years, to three years; and,
(v) that when a relief of declaration is coupled with the relief of possession, the larger period of limitation for the relief of possession and not the lesser period of limitation for the relief of declaration would apply.
Reference in this regard may also be made to Vidur Impex and Traders Pvt. Ltd. v. Pradeep Kumar Khanna (2017) 241 DLT 481 and C. Natrajan v. Ashim Bai (2007) 14 SCC 183.”

(d) In Ashok Kumar v. Mohd. Rustam, 2016 SCC OnLine Del 466: MANU/DE/0197/2016
(Rajiv Sahai Endlaw, J.), it was held as under:

“16. Article 58 of the Schedule to the Limitation Act, for the relief of declaration, undoubtedly provides limitation of three years from the date when the cause of action accrues. However I am of the opinion that once the plaintiff, besides suing for declaration of title also sues for recovery of possession of immovable property on the basis of title, the limitation for such a suit would be governed by the limitation provided for the relief of possession and not by limitation provided for the relief of declaration. To hold otherwise would tantamount to providing two different periods of limitation for a suit for recovery of possession of immovable property based on title i.e. of three years if the suit besides for the said relief is also for the relief of declaration of title and of twelve years as aforesaid if no relief of declaration is claimed. A relief of declaration of title to immovable property is implicit in a suit for recovery of possession of immovable property based on title inasmuch as without establishing title to property, if disputed, no decree for the relief of possession also can be passed. Thus, merely because a plaintiff in such a suit also specifically claims the relief of declaration of title, cannot be a ground to treat him differently and reduce the period of limitation available to him from that provided of twelve years, to three years. “ (referred to in Vidur Impex and Traders Pvt. Ltd. v. Pradeep Kumar Khanna, 2017- 241 Del LT 481)

(e) In Suhrid Singh @ Sardool Singh vs Randhir Singh, AIR 2010 SC 2807, 2010-12 SCC 112, it is observed as under:

“6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ‘A’ and ‘B’ — two brothers. `A’ executes a sale deed in favour of `C’. Subsequently `A’ wants to avoid the sale. `A’ has to sue for cancellation of the deed. On the other hand, if `B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A’ is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If `A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If `B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B’, a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.”

(f) In S. Krishnamma v. T.S. Viswajith: 2009 (4) KerLT 840, it is held that Article 58 is not applicable for declaration that is sought only as an ancillary relief. It is held as under:

“When a declaration regarding the void character of the document is sought for that is which would not govern the period of limitation for the suit. The consequential relief sought for is to be treated as main relief governing the period of limitation for the suit. (See Mrs. Indira Bhalchandran Gokhale v. Union of India & Another-AIR 1990 Bombay 98). Therefore declaration prayed for in this case as relief Nos. 1 and 2 were unnecessary, and even if made, need only be treated as ancillary to the main relief of partition of immovable properties and the claim that appellant is entitled to get family pension.”

(g) In Ashok Kumar v. Gangadhar, 2007 (2) ALD 313, 2007 (3) ALT 561, it is held:

“If the contention of the defendants that Article 58 applies to the suit for possession based on title where declaration of title is also sought, is accepted, it would amount to ignoring the relief for recovery of possession and application of Article 65 to a suit for possession and taking away the right of the plaintiff to prove that the suit is within 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. If such a suit were to be decided with reference to Article 58 on the ground that the declaration is sought for, application of Article 65 to the suit for possession would be rendered otiose. Such a construction would be opposed to all principles of interpretation of statutes. Therefore different Articles of the Limitation Act will have to be interpreted harmoniously. When such an interpretation is given to Articles 58 and 65 and when the suit is filed for declaration of title to the suit property with consequential relief of possession in my humble view Article 65 of the Limitation Act would apply and not Article 58 of the Limitation Act”.

(h) It is held in Mechineni Chokka Rao v. Sattu Sattamma, 2006 (1) ALD 116, as under:

“10…. It is obvious that Article 58 is in the nature of residuary provision among the declaratory suits. Indubitably the relief of declaration can be sought for in respect of an immovable property or movable property, or in respect of an instrument, or in respect of a decree, or in respect of an adoption. Thus, various types of declaratory reliefs can be sought for pertaining to those categories. Therefore, the relief of declaration alone appears to be not the criterion for prescribing the period of limitation but the subject-matter of the suit in respect of which the declaration is sought for, appears to be germane for consideration.”
“13. The problem can be viewed in a different dimension. The right over an immovable property will get extinguished as can be seen from Section 27 of the Act only after the expiry of the period prescribed for filing the suit for possession as per Articles 64 and 65 of the Act. Therefore, if the period falls short of the requisite period of 12 years the right over an immovable property will not get extinguished. When the person has a right over an immovable property which right is not extinguished as yet, he can lay the suit in respect of an immovable property even praying for the relief of declaration at any time within the period of 12 years at the end of which, his right would get extinguished. When we consider this clear mandate contained in Section 27 f the Act, it becomes manifest that a declaratory relief in respect of an immovable property can be sought for at any time within the period of 12 years after which the right will get automatically extinguished, notwithstanding the fact that Article 58, the residuary Article for filing declaratory suits, prescribes a period of three years limitation. … ….”

(i) In C. Natrajan v. Ashim Bai, AIR 2008 SC 363; (2007) 14 SCC 183, our Apex Court held as under:

“13. If the plaintiff is to be granted a relief of recovery of possession, the suit could be filed within a period of 12 years. It is one thing to say that whether such a relief can be granted or not after the evidences are led by the parties but it is another thing to say that the plaint is to be rejected on the ground that the same is barred by any law. If the suit has been filed for possession, as a consequence of declaration of the plaintiffs title, Article 58 will have no application.”

(j) State of Maharashtra v. Pravin Jethalal Kamdar, (2000) 3 SCC 460, was a suit for declaration in respect of a right of pre-emption and also for possession. It was contended that the deed was null and void. Our Apex Court held that merely for the fact that the plaintiff, besides the relief of possession, sought declaration also was of no consequence, and that in such a case the governing article of the Schedule to the Limitation Act would be Article 65. It is observed as under:

“As already noticed, in Bhim Singhji’s case, (AIR 1981 SC 234) (supra) Section 27(1) insofar as it imposes a restriction on transfer of any urban or urbanisable laid with a building or a portion of such building, which is within the ceiling area, has been held to be invalid. Thus, it has not been and cannot be disputed that the order dated 26th May, 1976, was without jurisdiction and nullity. Consequently, sale deed executed pursuant to the said order would also be a nullity. It was not necessary to seek a declaration about the invalidity of the said order and the sale deed. The fact of plaintiff having sought such a declaration is of no consequence. When possession has been taken by the appellants pursuant to void documents, Article 65 of the Limitation Act will apply and the limitation to file the suit would be 12 years. When these documents are null and void, ignoring them a suit for possession simpliciter could be filed and in the course of the suit it could be contended that these documents are nullity. In Ajudh Raj v. Moti S/o. Mussadi, (1991) 3 SCC 136: (1991 AIR SCW 1576: AIR 1991 SC 1600) this Court said that if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eyes of law and is not necessary to set it aside; and such a suit will be governed by Article 65 of the Limitation Act. …..”

(k) In Seshumull M. Shah v. Sayed Abdul Rashid , AIR 1991 Kar. 273, Karnataka High Court observed that a suit where possession is claimed as a consequence of the declaration, it would be governed by Article 65 and not Article 58 of the Limitation Act.

(l) If plaintiff has clear title in a suit for recovery on the strength of that title, plaintiff is not obliged to seek declaration (Padmavathy v. Kesava Reddy, 1987-2 KerLT 386, Dr. Kochuthomman, J.; Unnikrishnan v. Ponnu Ammal, AIR 1999 Ker. 405)

(m) In page 752 of the Treatise by B. B. Mitra, the Limitation Act, 23^rd Edition, reads as under:

“Article 65, and not Article 58, was attracted because no separate declaration was necessary, and the suit was essentially a suit for possession attracting Article 65. (State of Maharashtra v. Praveen, AIR 2000 SC 1099)”

Declaration Stands as Subservient to main prayer of Recovery

In K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98 (Antony Dominic & Hariprasad, JJ.), held as under:

“27. Article 56 of the Act deals with declaration of forgery of an instrument and Article 57 deals with matters relating to validity of an adoption. Article 58 is the residuary Article for matters not falling within Articles 56 and 57 of the Act. It is well settled that Article 58 will apply only to a suit for declaration simplicitor.

Question of limitation arises only when Adverse Possession

Q. of limitation comes if only Plaintiff has clear title and the defendant bases his claim on Adv. Possn.
If defendant has title, or better title, it is immaterial when he got it (i.e., title deed). He has to just point it out.

In K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98 (Antony Dominic & Hariprasad, JJ.), held as under:

30. It is clear from Article 65 of the Act that a right to recover possession of immovable property by a person on the claim of title can be defeated by another person after 12 years if only he establishes that he was holding possession of the property adverse to the person first mentioned. In other words, in a suit for recovery of possession of immovable property based on title, the question of limitation will arise only when the defendant pleads and proves adverse possession for a continuous period of 12 years. The above statement can be amplified by saying that in such a case, if the defendant fails to plead and prove adverse possession for the statutory period, there will be no bar for the plaintiff in getting recovery of possession of the property on the basis of title even after 12 years. The obvious reason is that a claim based on title paramount is a superior claim and it can be defeated only in a manner provided by law.

Recovery of Possession on Title – Declaration Subservient to Main Prayer

K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98 (Antony Dominic & Hariprasad, JJ.), further held as under:

37. Upshot of the discussion is that the above principles can be applied to the facts and circumstances of this case and therefore, it can only be held that the predominant nature of the suit is one for recovery of possession of property on the strength of title and declaration is only subservient to the main prayer. That is claimed only to dispel the cloud cast on the plaintiffs’ title. So much so, Article 58 of the Act has no application and Article 65 of the Act applies in this case.”

The Kerala High Court (K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98) referred the following decisions:

(i) Amrendra Pratap Singh v. Tej Bahadur Prajapati, AIR 2004 SC 3782. (Adverse possession is a fact, which is to be specifically pleaded and proved.)
(2) Mst. Gulkandi v. Prahlad, AIR 1968 Raj 51. (It was contended by the plaintiff that certain documents were not binding on him as he was not a party thereto. The court held that there was no necessity to cancel or set aside those documents and therefore Article 91 of the old Act was not applicable. It was also held that Article 144 of the old Act, prescribing a period of 12 years in the case of recovery of possession of property, would be applied.)
(3) Pavan Kumar v. K. Gopalakrishnan, AIR 1998 AP 247. (The suit was essentially and primarily a suit for possession based on title and a mere fact that a declaration of title was also sought therein did not bring it within Article 58 or Article 113 of the Act so as to attract the three years period of limitation; a formal declaration of title was sought only by way of an abundant caution.)
(4) Rama Pujhari v. Gouri Bewa, AIR 2006 Ori 129. (A suit in which declaratory and recovery of possession reliefs are claimed on the basis of the contention that the impugned document was void ab initio can only be viewed as a suit predominantly for recovery of possession and Article 65 of the Act applies.)
(5) Seshumull M. Shah v. Sayed Abdul Rashid, AIR 1991 Kar 273. (Article 58 of the Act will not apply for a suit for possession as a consequence of declaration.)
(6) State of Maharashtra v. Pravin Jethalal Kamdar, AIR 2000 SC 1099. (The fact of plaintiff having sought such a declaration (documents void) is of no consequence. Article 65 of the Limitation Act will apply.)

If Title Established, Plaintiff cannot be non-suited, unless Adv. Possession proved

In Indira v. Arumugam, AIR 1999 SC 1549, it was held that a plaintiff cannot be non-suited, in a suit based on title, unless the defendant proves adverse possession for the prescriptive period. It is held as under:

“It is, therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited……” (Followed in: Mallavva v. Kalsammanavara Kalamma, 20 Dec 2024, 2024 INSC 1021)

Same principle is applied in the following decisions also:

Saroop Singh v. Banto, (2005) 8 SCC 330,
M. Durai v. Muthu, (2007) 3 SCC 114,
P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59
Neelam Gupta v. Rajendra Kumar Gupta ((2024) 2 SCR 326; 2024 INSC 769: C.T. Ravikumar and Sanjay Kumar, JJ.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

First view Proof (Contents) stands established. It cannot be questioned afterwards. Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315, 1986 ACJ 616; 1985-2 GujLR 1315.	RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548. Neeraj Dutta v. State (Govt. of Delhi) [2023] 4 SCC 731 [If no objection as to mode of proof (secondary evidence) when marked, no such objection could be allowed to be raised at any later stage.]
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth). In such a case the document will not be taken as proved. (Note: It may not be legitimate to apply this principle literatim)	LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Domestic enquiry report); H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 (Copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and not its contents); Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (date of birth).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.	See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.	See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; *Kaliya v. State of MP*: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.	See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.