Judicial Notice of facts and presumption of facts by Courts

This Court is pained to observe the manner in which the Corporation functions and deals with individuals who are economically weak and not so literate, and who are unfortunately compelled to incur additional expense of obtaining Court Orders, only due to the careless manner in which the Corporation discharges its duties. This is “judicial notice / observation” of “matter of a common knowledge” of “ill treatment being meted out by officers of Mumbai Municipal Corporations to poor and illiterate section of the Society. [WP (L) No.3180 of 2019]

The “Judicial notice of fact” implies that, a fact which is otherwise all pervasive yet elusive, attains the status of judicial recognition of its existence.

A litigant who knocks the doors of Justice, are require to prove their Case, by leading evidence, to claim judgment in their favour. The Courts and the Judges too are anxious to hand out justice, in the very real sense of the term.

Therefore, in the administration and dispensation of justice, the Law enables the Judges to dispense with proving of certain facts, which are so evident and all pervasive. This is, taking of judicial notice of existence of a fact; and this enabling power is preserved u/s 56 of Indian Evidence Act, 1872.

The judicial notice is taken of such facts which are notorious and extensive, and which are matters of common knowledge; and therefore, ordinarily, the Courts do believe in the existence of such facts, and dispense with the proving of the same. [AIR 1978 Pat 172. AIR 1968 Bom 229]

In fact, the basis of enactment of some of the Legislations are founded on these notorious and extensive facts, which the Legislature took notice of it, post judicial notice of the same. The Sexual Harassment of Women at Work Place (Prevention, prohibition and Redressal) Act of 2013, is the offshoot landmark judgment of Hon’ble Apex Court whence it took judicial notice of fact of all pervasive, harassment of women at work place. [AIR 1997 SC 3011]

The Judges, consciously or unconsciously, in the process of arriving at findings on disputed facts, do take into consideration such facts which are so extensive and its general existence was never doubted. [AIR 1969 SC 255]

Some of the illustrations of instances whence our Constitutional Courts took judicial notice of all pervasive facts, such as - that many of Industrial workers are illiterate (AIR 1964 SC 708); Social malaise of illegal immigration and exploitation of young ones by unauthorized recruiting agents. (2000 CrLJ 252); that Harijans are socially, educationally and economically backward. [AIR 1974 Ori 115]

Nevertheless, needless to say, the final decision of a Case must rest on peculiar facts and evidence in support, of that Case; and a Judge cannot import knowledge of facts that has come to him from other sources. [38 Cal 153; AIR 1947 Nag 1]

Coming to Presumption of facts, these are, yet again, inherent enabling powers of the Court to regard certain facts as proved or they being exist, thereby dispensing with, to lead any evidence to prove the same. These enabling powers stand on a high public policy of providing expediency and convenience in the dispensation of justice; in particularly to obviate the necessity of proving each chain of event, which may sometimes be extremely onerous and needless, and may results in miscarriage of justice.

There are two broad categories of these enabling powers. The first is the pure enabling and discretionary power, preserved u/ss 86, 87, 88, 90 and 114 of Indian Evidence Act, 1872; and second is, enabling power with the force of Law. The second category may be further categorized into two classes. One, where the Law enables and mandates that the Court must presume the existence of a fact, with the opportunity to the adversary to disprove it by leading evidence, like Sections 118 and 139 of Negotiable Instruments Act, 1881 (rebuttal presumptions of law). The Second category is where the Law enables and mandates the Court to presume the conclusiveness of a fact, and no evidence can be permitted to lead, to disprove it (Irrebuttal presumptions of law), and are preserved u/ss 41, 112, 113 and 114-A of Indian Evidence Act.

Under enabling and discretionary powers, as spelled out in Section 114 of Evidence Act, it is left to the discretion of the Court as whether they may presume a fact being proved, or they may not presume such fact. But, nevertheless, the brilliance of this Section is that, at least, the Courts cannot presume perverse. The Law enables the Courts to presume the existence of certain facts (although not formally proved), having regard to common course of natural events, human conduct, usual business practices.

However, there is no obligation upon Court to presume any such facts, although according to a party, the circumstances may warrant such presumption. Also, it may noted that no presumption can be drawn that offends basic legal principles. [AIR 1924 PC 65] The Presumption of a fact may be drawn both from oral and documentary evidence. [AIR 1959 Bom 414]

A presumption of fact by the injunction of law, differs in substance from general discretionary powers of Court to presume certain facts. A presumption of fact mandated by the force of law, is, where if a party proves one fact (the primary fact), the consequential fact is presumed to be proved, unless contrary is proved.

The best example is Section 139 of Negotiable Instruments Act, 1881. The moment the Complainant proves that subject negotiable instrument was duly issued by the Accused, the Courts are bound to raise a presumption that the subject negotiable instrument was issued in discharge of a debt; until the Accused dislodge such presumption, to the contrary. Interestingly, to dislodge this legal presumption, the Defendant may lead evidence or may dislodge such presumption by way of cross examination of the Plaintiff; nevertheless, whatever be the material so arises in this behalf, must be of such degree, that satisfy the Court that “subject negotiable instrument was not issued in discharge of a debt”. Therefore, it may be seen that Presumption of facts, injuncted by Law, shifts the burden of proof. [AIR 2001 SC 318; AIR 1961 SC 1316]

Presumption of facts by the force of Law, are the fictions of law, designed in the backdrop of experience of life, the social conditions and local affairs, expediency, in the interest of justice, having the object that, a litigant may not be called upon to prove something that will be needlessly onerous and that may prolong the litigation, and may frustrate the final justice; at the same time, balancing the fiction, with opportunity to lead evidence to dislodge such presumptions.

The great utility of presumption of facts, envisaged u/s 114 of the Evidence Act, 1872, may be found in the remarkable observation of Hon’ble Apex Court in the Case of State of Andhra Pradesh versus V Vasudeva Rao (AIR 2004 SC 960). It said: Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton, L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. (1911 (1) KB 988) observed as follows : "Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion." The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court may have regard to common course of natural events, human conduct, public or private business vis-a-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act.

No presumption can be drawn from presumption or mere conjectures. [AIR 1998 SC 3258; ILR 54 Cal 63]

Some of the important illustrations that our higher Courts have presumed, having regard to mandate of Section 114 of the Evidence Act, are – in accidental deaths, there is no presumption of negligence (AIR 1968 SC 829); Adverse inference may be drawn against a party who fail to produce document despite being ordered (AIR 1961 SC 1277; AIR 1968 SC 1413); that a man knows the natural and likely consequences of his acts. AIR 2012 SC 3802; possession follows title (AIR 1966 SC 1931); Post event conduct of a witness cannot be predicted on specified lines. It varies from person to person as different people react differently under different situations (AIR 2002 SC 2148)

 

 

Sandeep Jalan

Advocate

https://www.litigationplatform.com/