UNDERSTANDING THE NOTION OF SPECIAL KNOWLEDGE UNDER INDIAN EVIDENCE ACT UNDER SECTION 106: A SITUATIONAL AND PHILOSOPHICAL ANALYSIS - The Daily Guardian
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UNDERSTANDING THE NOTION OF SPECIAL KNOWLEDGE UNDER INDIAN EVIDENCE ACT UNDER SECTION 106: A SITUATIONAL AND PHILOSOPHICAL ANALYSIS

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1. PRINCIPLE OF THE SECTION

The section 106 of the Indian Evidence Act, 1872 is read as,

“When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

This section is an exception to the general rule contained in section 101 of the act, namely, that the burden is on the person who asserts a fact. The basic principle pivoting this section is that it is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant. It cannot apply when the fact is such as to be capable of being known also by a person other than the defendant. In Gurbakish Singh v Gurdial Singh, it was held that it is the bounden duty of a party, personally knowing the whole circumstances of the case, to give evidence on his own behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case.

This section comes into picture only when the prosecution has proved its case beyond reasonable doubt that the accused has to prove the fact within his special knowledge to establish that he is not guilty . The burden of accused is discharged if the accused person establishes his case by a preponderance of probability and it is not necessary that he should establish his case by the test of proof beyond a reasonable doubt . It is well settled that only when the prosecution led evidence, if believed, which would sustain a conviction, then the burden of proving anything would lie on the accused under section 106 of the act . This section applies only to the parties to a suit. The primary objective of the Court is to meet the epitome of Justice which can be unleashed only on account of the corroboration made by the person knowing the full truth facts and circumstances associated with the matter.

1.1. JUDICIAL TRENDS

a. In Senevirantne v R, the court held that Section 106 does not cast any burden on the accused to prove that he had not committed the offence by proving facts lying specially within the knowledge, that if anything is unexplained which the jury think the accused could explain then they, not only may, but must, find him guilty .

b. In Sawal Das v State of Bihar , the SC held that section 106 is applicable only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which an accused did the particular act. The observation of the SC was antonymous to the narrow construction of the section.

c. In Gurubachan Singh v State of Punjab, the court held that Section 106 only puts the evidential burden on the accused and it is not the legal burden which shifts from the prosecution. Section 106 is just a mere tool to assist the prosecution rather than a loophole in the law for prosecution to shrink their responsibility of proving a criminal case beyond a reasonable doubt.

2. INTENTION & MENS REA

In Srinivas Mall v Emperor, it was held that the court should bear in mind that unless the statute rules out mens rea as a constituent part of the crime an accused should not be found guilty an offence against the criminal law unless he has got a guilty mind. Analysing from the front of Section 106, it is well settled that Intention or guilty knowledge of the accused has to be proved by the prosecution and it is not the accused . This was also elaborated and iterated by the Court in the case of Gurubachan Singh.

It is not for prosecution to anticipate and eliminate all possible defence of circumstances which may exonerate an accused. If the accused had a different intention, that is fact especially within his knowledge he must prove .

3. SITUATIONAL ANALYSIS

3.1. IN THE CASE OF ALIBI.

It is well settled in the case of Gurucharan Singh v State of Punjab, that burden to proof of alibi lies on the accused as it is specially within his knowledge but failure to prove does not help the prosecution, which has to prove the guilt beyond a reasonable doubt. This clearly holds and affirms the pivotal concept of the section as elucidated earlier.

3.2. PREVENTION OF CORRUPTION

The Supreme Court held that the offence under Section 5(1)(c) of the Prevention of Corruption Act is constituted when the property has been received by the accused for or in the name, or on account of the master or employer and it is complete when the servant fraudulently misappropriates that property. Therefore, in this regard the accused has to prove his innocence by virtue of the action of Section 106 of the Act .

3.3. N.D & P.S ACT

In Jagdish Budhroji Purohit v State of Maharashtra, it was held that when the factory from where the psychotropic substances were seized belonged to the accused, then burden was on him to prove how the offending articles came to be found in his factory. This again establishes the concept of special knowledge and jurisprudence of Section 106 of the Act.

3.4. NON-DELIVERY OR SHORT DELIVERY OF GOODS- RAILWAY

There is a duty on the part of the railway to disclose the manner of dealing with the consignments, as it includes those facts which are specially within the knowledge of the Railway administration and it must prove them . There is nothing in section 74-D of the Railways Act to indicate any legislative intent to override the dynamic provisions of Section 106 or Section 114 of the Evidence Act .

Under Section 80 of the Railways Act, there is a burden on the plaintiff to prove that the goods sent through railway was lost or damaged and he cannot take advantage of section 106. In the case of claim for compensation from railways, if the plaintiff does not call for any disclosure from railways, it was held that no duty lies on the railway to disclose anything or how the consignment was dealt with during the transit and no presumption can be drawn against the railway. However, the railway gets the immunity under section 74-A of the Railways Act, that short or defective delivery was due to the defective packing .

3.5. NEGLIGENCE

From the general perspective in the case of negligence, the burden of proof of negligence is on the part of the defendant lies on the plaintiff, but in the situations of res ipsa loquiotor, the burden lies on the defendant to show that he was not negligent . Therefore, the principle of section 106 is based on the ideology of res ipsa loquitor.

In the above cited case, where due to rash and negligent driving the bus turned turtle and by virtue of res ipsa loquiotor the negligence on the part of driver was presumed. It is to be noted that the best defence against negligence would be of the driver himself under section 106 of the Evidence Act (as it will amount to. Special knowledge of the fact, as of how bus met with an accident).

3.6. MASTER- SERVANT & HUSBAND-WIFE

In the case of a servant charged with misappropriation of goods of his master, if the failure to account is due to an accidental loss, the facts being within the servant’s knowledge, it is for him to explain the reason of the loss, by the action of Section 106 of the Act . This is analogous to the principle of the section 106, as the person having the special knowledge of the facts needs to assert and prove his case. In an application for maintenance by a wife, the onus is on the husband to disclose his income, by virtue of Section 106 . (As it is only within the knowledge of the husband).

3.7. FACTS WITHIN THE KNOWLEDGE OF THE PARTY

a. In case a dead body of a rape victim is found inside the house of the accused, the burden is on him to explain how the dead body happened to be there .

b. Where a housewife died of drowning in the well in the house of the in-laws, and at the time of the incident only accused were present in the house, burden was on them to prove what events happened that caused the death.

In these scenarios two things are pivotal which bring the role of section 106 into action,

i. Burden of Proof

ii. Special Knowledge of the accused.

This is because, what happened in one’s house or at a specific place and time can only be explained by the person witnessing it.

1. UNDERSTANDING & CONCLUSION

a. The burden of proof has two distinct meanings, the first being the burden of proof on pleadings which and the second being the burden of adducing evidence. While the first kind of burden remains on one side throughout the case, the second one may shift as per the need. Hence it is not the burden of proof that shifts, but the onus of proof that shifts. Thus, there is also a distinction between the terms ‘burden’ and ‘onus’. The first kind of burden is the legal burden while the second can be referred to as ‘evidential’ burden. The legal burden rests on the party which asserts the affirmative of an issue in the beginning of the trial.

b. Evidential burden, on the other hand, is an obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue with due regard being had to the standard of proof demanded by a party under such obligation. The object of placing the evidential burden on the defendant can be seen as a latent force to make the accused to go into the witness box and give evidence.

c. The burden of proof which has been envisaged in Section 101 of The Evidence Act is the legal burden which never shifts from the prosecution. Section 106 is not a proviso to the rule that burden of proving the guilt of the accused is upon the prosecution but on the contrary, the section is subject to the rule. Thus Section 106 is an exception to Section 101 of The Indian Evidence Act. The two judge bench of Gujarat High Court in State v Dhulaji Bavaji held that Section 106 could not be used to undermine that burden never shifts from the prosecution.

d. In Shanbhu Nath Mehra v State of Ajmer it was observed that Section 106 lays down the general rule that in a criminal case, the burden of proof is on the prosecution and Section 10 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which he could prove without difficulty or inconvenience.

e. The word “especially” stresses that it means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder.

f. The Section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.

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ON THE PLEA TO STAY THE RETIREMENT OF EXISTING MEMBERS UNTIL THE ACTUAL JOINING OF NEW MEMBERS, SUPREME COURT ISSUES NOTICE

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The Supreme Court in the case Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi v Union of India & Or’s observed in a petition till all the vacancies which arose from 2019-2022 are filled by actual joining of candidates by putting a stay on the impending retirement of all the existing Judicial/ Administrative Members of CAT the court further issued the notice.

In the plea it was stated in the petition that although 35 Judicial Members including the Chairman and 35 Administrative Members cater to 19 benches and 8 circuit benches, many benches of the Tribunals have become non functional because of the retirement of members at regular intervals as it was Preferred by Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi.

Furthermore, the petition stated the Jabalpur Bench, Cuttack Bench, Lucknow Bench, Jammu and Srinagar Bench are left with only one member either Judicial or Administrative because of which no division bench can be constituted there. As on 31st March, 2022, the Guwahati Bench has become totally non-functional as no Member is available there.

Justice Chandrachud stated by taking a note of the above submissions:

A bench can’t be constituted with one member.

Justice Chandrachud further asked to submit an up-to-date chart with regards to the number of members who are present in the various benches of CAT and ordered the counsel for the Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi to do the same.

Justice Kant further added by taking a note of the above submissions:

The members whose term is likely now to expire in Future, give the details of those members.

The benches of the Central Administrative Tribunal will become non-functional if the aforesaid situation continues for a couple of more months, more than half of the sanctioned stated in the plea.

AOR Amita Singh Kalkal, has filled a plea before the Supreme Court.

The bench of comprising of Justice DY Chandrachud and the justice Surya Kant by making a note of the above submissions ordered to issue a notice and in addition the liberty to serve the Central Agency.

The bench ordered to comply with the same and listed the matter on 13th May.

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Supreme Court upholds disciplinary action against judicial officers for showing undue favour to a party in the worst kind of judicial dishonesty

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The Supreme Court in the case Muzaffar Hussain versus State of Uttar Pradesh observed a judicial officer in Uttar Pradesh for passing orders to unduly favour certain parties for taking against the disciplinary action.

The High Court reduced the punishment as curtailment of pensionary benefits by 70% and refused to interfere with the findings and the officer approached the Supreme Court for Challenging the High Court’s verdict.

A writ petition was filed before the High Court challenging the punishment by the officer. In 2005, the Allahabad High Court initiated disciplinary enquiry against him for misconduct and found the charges to be proved. On the recommendation made by the Full Court, the State of Uttar Pradesh imposed a punishment of curtailment of his pensionary benefits by 90% to join the Central Administrative Tribunal as a judicial member in 2003, the officer took Voluntary Retirement from Service.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

The bench of Justice Bela Trivedi, an judgement authored noted:

the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case and if he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion. The extraneous consideration for showing favour need not always be a monetary consideration further she said that In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct.

while being the Additional District Judge at Agra during 2001 to 2003, the officer named Muzaffar Hussain and the charge was that in a batch of land acquisition matters in violation of settled principles in order to unduly favour certain subsequent purchasers had exorbitantly enhanced the compensation.

Thereafter the Apex Court added that under Article 235 of the Constitution of India the High Court had perfectly justified in exercising its supervisory jurisdiction, under these circumstances.

The division bench comprising of justice DY Chandrachud and the justice Bela M Trivedi observed under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct and that showing undue favour to a party.

The Court stated, the case must be decided by the Judge on the basis of the law applicable to the case and the facts on record. He is not performing his duties in accordance with law if he decides the case or extraneous reasons.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

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ONCE CIRP IS ADMITTED AND MORATORIUM IS ORDERED THE SARFAESI PROCEEDINGS CANNOT BE CONTINUED AGAINST CORPORATE DEBTOR: SC

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The Supreme Court in the case Indian Overseas Bank vs RCM Infrastructure Ltd observed that once the CIRP is initiated and the moratorium is ordered, the proceedings under the SARFAESI Act cannot be continued.

the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered as Section 14(1)(c) of the IBC has an overriding effect interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited with respect to any other law, any action to foreclose, to recover or to enforce any security, the court observed in view of this provision.

It was further being observed and was stated clearly that once the CIRP is commenced, there is complete prohibition for any action created by the Corporate Debtor to foreclose, recover or enforce any security interest are prohibited with respect of its property. All the actions including any action under the SARFAESI Act to foreclose, to recover or to enforce any security interest are prohibited, after the CIRP initiate, the legislative point is clear at this, the bench observed while referring to Section 14 and Section 238 of the IBC.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

under Section 10 of the Insolvency and Bankruptcy Code, 2016, an application was filled by the Corporate Debtor before NCLT. On 03.01.2019, the NCLT admitted the petition and a moratorium was also notified the auction was continued by the bank the auction proceedings and accepted the balance 75% of the bid amount and completed the sale, even after that. The NCLT passed an order setting aside the sale, while allowing the application filled by the Corporate Debtor and the appeal filled by the Bank was dismissed by the Bank and thereafter the bank approached the Apex Court. As to recover the public money availed by the Corporate Debtor, an E-­auction notice came to be issued by the Bank.

The bench comprising of Justice L. Nageswara Rao and the justice B R Gavai observed that in respect of its property including any action under the SARFAESI Act is prohibited in such a situation, any action to foreclose, to recover or to enforce any security interest created by the Corporate Debtor.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

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Supreme Court pulls up the state of Kerala for challenging the seniority of upper division clerk

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The Supreme Court in the case The State of Kerala and Or’s. V. Subeer N.S. And Anr observed assailing the Kerala High Court’s order of affirming the seniority of an upper division clerk for filling a Special Leave Petition pulled up the State of Kerala.

The Government lost sight of these aspects while issuing Annexure-A13 order ratifying Annexure-A10 decision of the Director of Public Instruction on Annexure-A5 complaint was undertaken by the Director of Public Instruction, who has no authority to take a decision invoking Rule 27B of Part II KS & SSR based on the review of the Seniority the Director of Public Instruction and the Government while issuing the impugned orders, none of these aspects wee considered to Annexure-A3 final seniority list also by any of the aggrieved persons except a bogus complaint submitted as Annexure A5, that too almost 3 years after the finalization of the seniority list and there was no objection and further there was no objections to the rank and seniority assigned to the applicant in the provisional seniority list. the said seniority is finalized after publishing a provisional seniority list and inviting objections if any to the same as early as on 8th March 2009., the bench observed While affirming the view by KAT.

The said mistake was brought to the notice of the authorities, necessary corrective action was taken and the applicant’s seniority was reassigned based on his eligibility on the part of the controlling officer it is only by a mistake that he was granted promotion and was assigned the rank in the seniority list, the counsel said to further persuade the bench.

The Bench of Justice Chandrachud remarked that if the counsel feels there is an error you must rectify the error correctly and there was no fraud on his part and all this must be due on a reasonable dispatch.

The bench comprising of Justice DY Chandrachud further observed and noted when the matter was called upon hearing before the bench that the State is here challenging it the bench further remarked by saying that why don’t you do something better? Build schools, roads or infrastructure as one upper division clerk has got seniority.

respondent’s seniority was revised to the date on which he rejoined duty after the leave and the respondent was on leave without allowance at the time of his promotion as U.D Clerk, the counsel appearing for the State contended before the Court.

The Bench comprising of Justice DY Chandrachud and the justice Surya Kant orally remarked while dismissing the SLP against the order dated 01.17.2022., We are not a court of law but a court of justice as well.

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A PLEA IN SUPREME COURT CHALLENGES THE CHANGED NEET-SS 2022 EXAM PATTERN

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The Supreme Court in the case Dr Richa Verma v. National Board of Examination observed the changed examination pattern which would now be comprising of 150 questions from the general i.e., the basic component of the primary feeder broad specialty subject and from all sub- specialty/systems/component of that primary feeder broad specialty subject. A plea filled in the Supreme Court by MD Radiation Oncologists and MD Anaesthesiologists NEET SS 2022 aspirant.

the petitioners have sought issuance of directions to restrain the NBE from excluding / MD Radiotherapy from the eligible feeder specialties for the super specialty course of DM Medical Oncology for NEET SS 2022 and have further sought for restoring the scheme/pattern for the exam further the petitioner deleting the MD Radiation Oncology, against this backdrop.

On 05.10.2021 the Central Government had told the Court that the revised pattern will be implemented only from next year and it may be noted that over the eleventh-hour changes brought to the NEET-SS 2021 pattern after facing the harsh criticism from the Supreme Court.

The petition further states that they will have to compete with candidates who have 100% questions from their postgraduate syllabus/ broad specialty as the new examination scheme is making some candidates write a paper which has no questions from their postgraduate broad specialty.

particularly in favor of MD Medicine in so far as the choice of options is far greater vis-a-vis the choices available to either MD Radiation Oncology or MD Anaesthesia, the pattern is not just a waste of time and effort for all those who have prepared for Critical Care but also grossly biased against few broad specialties and of the other four post-graduate branches there will be no questions from broad specialties.

This is complete waste of time, resources and effort put by the candidates who have been preparing for a super speciality subject for years as it is arbitrarily, illogical, highly partial and unreasonable, while terming the change in pattern, the contentions made by the petitioner.

the new pattern was forcing all the candidates from the broad specialties to write a single paper which will have 100% questions from General Medicine, stated by the petitioner. Furthermore, contending that the erstwhile pattern had a paper with 40% mixed questions from all the broad specialties and 60% questions from Critical Care (i.e., the super-specialty subject) which had ensured a level playing field.

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THE CRIMINAL PROCEEDINGS UNDER SECTION 482 OF THE CRPC CANNOT BE QUASHED MERELY ON THE GROUND THAT NO USEFUL PURPOSE WILL BE SERVED: SUPREME COURT

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The Supreme Court in the case Satish Kumar Jatav vs State of Uttar Pradesh observed that while by prolonging the proceedings of the case, the criminal proceedings cannot be quashed. As when a clear case is made for the offence alleged on the ground that no useful purpose will be served.

under Sections 307, 504, 506 of the IPC and 9 Section 3(10)(15) of the Act, the serious allegations for the offences were made and while considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences, the High Court ought to have been more cautious and circumspect. on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous, has not at all being allowed by the High Court. the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated in the manner in which the High Court has disposed of further the High Court has observed in the proceedings of the case that no useful purpose will be served. The aforesaid cannot be a good ground and/or a ground at all to quash the criminal proceedings when a clear case was made out for the offences alleged, appeared while quashing the criminal proceedings by the High Court even for the impugned order passed, the bench overserved while allowing the appeal.

The application under Section 482 Cr.P.C The manner in which the High Court has disposed and quashed the criminal proceedings is not appreciated at all Furthermore the Court has emphasized that the High Court must pass a speaking and reasoned order in such matters. The same has been set aside by the High Court in a most cursory and casual manner.

The allegations made against the accused persons and even on the legality and validity of the order passed by the Magistrate summoning the accused, has not been discussed by the High Court the Court noted.

The appellant contended that there are no reasons whatsoever have been assigned while quashing the criminal proceedings and further the appellant contended that there is no independent application of mind by the High Court. The respondent defended the impugned order, on the other hand before the Apex Court.

the Allahabad High Court quashed the criminal proceedings merely opining that “that no useful purpose shall be served by prolonging the proceedings of the case, while allowing the petition filled by the accused challenging this order and the offences punishable under Sections 307, 504, 506 of the Indian Penal Code and Section 3(10)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the accused to face the trial the Magistrate summoned the accused in the present case.

The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and reiterated under Section 482 of the Code of Criminal Procedure that a High Court must pass a speaking and reasoned order while disposing petitions.

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