Law of Evidence

By Nizam Azeez Sait,

MODULE No. 17

FACTS WHICH NEED NOT BE PROVED

This is the 17th Module of the subject ‘Law of Evidence’, covering Sections 51, 52 and 53 of the Bharatiya Sakshya Adhiniyam (Sections 56, 57 and 58 of the Evidence Act), which are titled “Facts which need not be Proved” in part – III chapter – III.

MODULE INDEX

  1. Introduction
  2. Facts Judicially Noticeable and Admitted Facts
  3. Facts Judicially Noticeable – Provisions
  1. Judicial Notice of Notifiication under Telegraph Act as Law under Section 52 (1) of the Bharatiya Sakshya Adhiniyam
  1. Judicial Notice of Parliamentary Standing Committee Report under Section 52
  1. Judicial Notice of Facts Beyond What are Enumerated in Section 52
  2. A Few Instances Where the Court Took Judicial Notice Beyond matters enumerated in Section 52
  3. Judicial Notice of Custom as Law
  1. Formal or Judicial Admissions – Facts admitted need not be proved – Section 53
  1. Distinction between Evidentiary Admission under Sections 15 to 19 and Formal / Judicial Admission
  1. Supreme Court on the Evidentiary Value of Admissions

1. Introduction

Chapter 3 is titled “Facts which need not be proved”. This chapter consists of 3 sections from section 51 to 53. Sections 51 and 52 of the Bharatiya Sakshya Adhiniyam (Sections 56 and 57 of the Evidence Act) deals with judicially noticeable facts and section 53 (Sections 58 of the Evidence Act) deals with formal/judicial admissions.

2. Facts Judicially Noticeable and Admitted Facts

The general law envisaged under Sections 104 of the Bharatiya Sakshya Adhiniyam (S.101 of the Indian Evidence Act) is that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist. In other words, the parties to the lis must prove all the disputed facts in issue and the relevant facts by the production of evidence, either oral or documentary. But Sections 51 and 53 of the Bharatiya Sakshya Adhiniyam (S.56 and S.58 of the Indian Evidence Act) provide two exceptions to the said general rule. S.51 provides that “facts judicially noticeable” need not be proved. S.53 is to the effect that “facts formally admitted in judicial proceedings need not be proved”. Thus, S.51 and S.53 are exceptions to S.104 of the Bharatiya Sakshya Adhiniyam.

3. Facts Judicially Noticeable – Provisions

Sections 51 and 52 of the Bharatiya Sakshya Adhiniyam (Sections 56 and 57 of the Evidence Act) dealing with Judicial Notice reads as under:

Section 51: Fact judicially noticeable need not be proved.

No fact of which the Court will take judicial notice need be proved.

Section 52: Facts of which Court must take judicial notice.

(1) The Court shall take judicial notice of the following facts, namely: —

(a) all laws in force in the territory of India including laws having extra-territorial operation;

(b) international treaty, agreement or convention with country or countries by India, or decisions made by India at international associations or other bodies;

(c) the course of proceeding of the Constituent Assembly of India, of Parliament of India and of the State Legislatures;

(d) the seals of all Courts and Tribunals;

(e) the seals of Courts of Admiralty and Maritime Jurisdiction, Notaries Public, and all seals which any person is authorised to use by the Constitution, or by an Act of Parliament or State Legislatures, or Regulations having the force of law in India;

(f) the accession to office, names, titles, functions, and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in any Official Gazette;

(g) the existence, title and national flag of every country or sovereign recognised by the Government of India;

(h) the divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette;

(i) the territory of India;

(j) the commencement, continuance and termination of hostilities between the Government of India and any other country or body of persons;

(k) the names of the members and officers of the Court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of advocates and other persons authorised by law to appear or act before it;

(l) the rule of the road on land or at sea.

(2) In the cases referred to in sub-section (1) and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference and if the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.

The Court shall take judicial notice of the following facts:–

(1) All laws in force in the territory of India;

(2) All public Acts passed or hereafter to be passed by Parliament of the United Kingdom, and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed;

(3) Articles of War for the Indian Army Navy or Air Force;

(4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any laws for the time being in force in a Province or in the States;

(5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland:

(6) All seals of which English Courts take judicial notice; the seals of all the Courts in India and of all Courts out of India established by the authority of the Central Government or the Crown Representative: the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorized to use by 8[the Constitution or an Act of Parliament of the United Kingdom or an] Act or Regulation having the force of law in India;

(7) The accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in any Official Gazette;

(8) The existence, title and national flag of every State or Sovereign recognized by the Government of India;

(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette;

(10) The territories under the dominion of the Government of India;

(11) The commencement, continuance and termination of hostilities between the Government of India and any other State or body of persons;

(12) The names of the members and officers of the Court and of their deputies and subordinate offices and assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;

(13) The rule of the road on land or at sea.

In all these cases and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.

If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.

A “judicially noticeable fact” is a fact in respect of which the Court can take cognizance from undisputed common knowledge, without formal proof of its existence, on convenience and expediency in the cause of justice. The Court would take judicial of such facts without production of strict proof by the parties to the lis, as required under S.104 of the Bharatiya Sakshya Adhiniyam (S.101 of the Indian Evidence Act).

It is a settled proposition that:

Section 52 of the Bharatiya Sakshya Adhiniyam (Section 57 of the Evidence Act) enumerates the facts of which the Court shall take judicial notice. But the scope and extent of Section 51 (Section 56 of the Evidence Act) is not confined to Section 52. In fact, Section 52 directs that the Court shall take judicial notice of the facts referred to in clauses (1) to (13) therein but that doesn’t mean that judicial notice of facts, other than the facts enumerated under clauses (1) to (13), cannot be taken. The Court can take judicial notice of the facts outside the scope of Section 52. But the difference is that the Court has no discretion to take cognizance in respect of the facts enumerated under clauses (1) to (13) of Section 52 and the Court shall mandatorily take judicial notice of the same. But the Court has wide discretion to take cognizance of facts, other than the facts specifically enumerated under clauses (1) to (13) of S.52 (Section 57 of the Evidence Act).

4. Judicial Notice of Notifiication under Telegraph Act as Law under Section 52 (1) of the Bharatiya Sakshya Adhiniyam

State of M.P v Ramcharan 1977 CriLJ 597, a full bench of the Madhya Pradesh High Court, observed:

“….. under our legal order and jurisprudence based on the Constitution, “law” is not limited to legislative enactments. All forms of delegated legislation and conditional legislation amount to law. All orders and notifications made and issued under statutory powers and which are legislative in nature amount to law. A statutory order or notification will be legislative in nature if in substance it adds to, supplements, modifies or amends a statute or exempts certain matters from its operation.

We now revert to Notification No. G.S.R. 1512 issued under S.7(1) of the Telegraph Wires Act which specially empowers the Station Officer Rehli and many other officers to make complaints in respect of offences under the Act. While enacting S.7(1), the Central Legislature could have enumerated in the section itself the officers who would be competent to make complaints for offences under the Act. Instead of doing that the legislature has authorised the Central Government to specially empower officers for that purpose. A notification issued by the Central Government in exercise of this power supplements S.7(1) and is legislative in nature. The notification read With S.7(1) is part of the law of procedure that only Central Government and the officers specified in the notification can make complaints for offences under the Act. A Criminal Court is bound to give effect to this law. It cannot refuse to take cognizance of a complaint made by an Officer mentioned in the notification and cannot take cognizance of a complaint made by an officer not mentioned in the notification. In our opinion, therefore, the notification amounts to law. The learned Government Advocate has produced before us a book published under the authority of the Central Government which contains the notification. He has also produced before us the relevant Gazette in which the notification is printed. We, therefore, find no difficulty in holding that judicial notice must be taken of the notification under S.57(1) of the Evidence Act (Sections 52(1) of the Bharatiya Sakshya Adhiniyam

5. Judicial Notice of Parliamentary Standing Committee Report under Section 52

In, Kalpana Mehta and Others v Union of India and Others AIR 2018 SC 2493 : 2018 (7) SCC 1, a five judges constitution bench observed:

“There can be no dispute that parliamentary standing committee report being in the public domain is a public document. Therefore, it is admissible under S.74 of the Evidence Act (Section 74 of the Bharatiya Sakshya Adhiniyam and judicial notice can be taken of such a document as envisaged under S.57(4) of the Evidence Act (Sections 52 of the Bharatiya Sakshya Adhiniyam). There can be no scintilla of doubt that the said document can be taken on record. As stated earlier, it can be taken aid of to understand and appreciate a statutory provision if it is unclear, ambiguous or incongruous. It can also be taken aid of to appreciate what mischief the legislative enactment intended to avoid. Additionally, it can be stated with certitude that there can be a fair comment on the report and a citizen in his own manner can advance a criticism in respect of what the report has stated.”

6. Judicial Notice of Facts Beyond What are Enumerated in Section 52

In Onkar Nath v. Delhi Administration, AIR 1977 SC 1108: 1977 (2) SCC 611 the Supreme Court held as follows:

“S.56 of the Evidence Act (Sections 51 of the Bharatiya Sakshya Adhiniyam) provides that no fact of which the Court will take judicial notice need be proved. S.57 (Sections 52 of the Bharatiya Sakshya Adhiniyam) enumerates facts of which the Court “shall” take judicial notice and states that on all matters of public history, literature, science or art the Court may resort for its aid to appropriate books or documents of reference. The list of facts mentioned in S.57 (Sections 52 of the Bharatiya Sakshya Adhiniyam) of which the Court can take judicial notice is not exhaustive and indeed the purpose of the section is to provide that the Court shall take judicial notice of certain facts rather than exhaust the category of facts of which the Court may in appropriate cases take judicial notice. Recognition of facts without formal proof is a matter of expediency and no one has ever questioned the need and wisdom of accepting the existence of matters which are unquestionably within public knowledge. Shutting the judicial eye to the existence of such facts and matters is in a sense an insult to common-sense and would tend to reduce the judicial process to a meaningless and wasteful ritual. No Court therefore insists on formal proof, by evidence, of notorious facts of history, past or present. ……..Judicial notice, in such matters, takes the place of proof and is of equal force. In fact, as a means of establishing notorious and widely known facts it is superior to formal means of proof”.

7. A Few Instances Where the Court Took Judicial Notice Beyond matters enumerated in Section 52

The Supreme Court has held that steep increase of the price of commodities and consequential requirement for revision of the wages of the labourers is a judicially noticeable fact. (See, Kamani Metals & Alloys Ltd. v. The Workmen, AIR 1967 SC 1175)

The Supreme Court has held that judicial notice can be taken of the fact that rupee has lost its value to a considerable extent. (See Bharat Petroleum (Erstwhile Burmah Shell) Management Staff Pensioners v. Bharat Petroleum Corporation Ltd., AIR 1988 SC 1407: 1988 (3) SCC 32)

The Supreme Court has held that Court can take judicial notice of enormous multifold increase of rents throughout the country, particularly in urban area. (See Rattan Arya v. State of T.N., AIR 1986 SC 1444: 1986 (3) SCC 385)

In Onkar Nath v. Delhi Administration, the Supreme Court observed:

“The date of poll, the passing away of a man of eminence and events that have rocked the nation need no proof and are judicially noticed. Judicial notice, in such matters, takes the place of proof and is of equal force. In fact, as a means of establishing notorious and widely known facts it is superior to formal means of proof. Accordingly, the courts below were justified in assuming, without formal evidence, that the Railway strike was imminent on May 5, 1974 and that a strike paralysing the civic life of the Nation was undertaken by a section of workers on May 8, 1974.”

In Bir Singh and others v State of UP, AIR 1978 SC 59, the Supreme Court held that whether FIR was sent to the Public Prosecutor and concerned Magistrate is not a matter of which judicial notice can be taken it must be proved like any other fact.

8. Judicial Notice of Custom as Law

In Dr. Surajmani Stella Kujur v. Durga Charan Hansdah, AIR 2001 SC 938, the Supreme Court held that custom, being in derogation of a general rule, is required to be construed strictly. A party relying upon a custom, is obliged to establish it by way of clear and unambiguous evidence. (See also Salekh Chand (Dead) thr. Lrs. v. Satya Gupta and Others, 2008 (13) SCC 119.)

In, Laxmibai (Dead) thr. Lrs. and Another v. Bhagwantbuva (Dead) thr. Lrs. and Others AIR 2013 SC 1204: 2013 (4) SCC 97, The Supreme Court observed:

A custom must be proved to be ancient, certain and reasonable. The evidence adduced on behalf of the party concerned must prove the alleged custom and the proof must not be unsatisfactory and conflicting. A custom cannot be extended by analogy or logical process and it also cannot be established by a priori method. Nothing that the Courts can take judicial notice of needs to be proved. When a custom has been judicially recognised by the Court, it passes into the law of the land and proof of it becomes unnecessary under S.57(1) (Section 52(a) of the Bharatiya Sakshya Adhiniyam of the Evidence Act, 1872. Material customs must be proved properly and satisfactorily, until the time that such custom has, by way of frequent proof in the Court become so notorious, that the Courts take judicial notice of it. (See Effuah Amissah v. Effuah Krabah, AIR 1936 PC 147; T. Saraswati Ammal v. Jagadambal and Another, AIR 1953 SC 201; Ujagar Singh v. Mst. Jeo, AIR 1959 SC 1041; and Siromani v. Hemkumar and Others, AIR 1968 SC 1299).

9. Formal or Judicial Admissions – Facts admitted need not be proved – Section 53

No fact need be proved in any proceeding which the parties thereto 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 of 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.

10. Distinction between Evidentiary Admission under Sections 15 to 19 and Formal / Judicial Admission

Now we will see the Distinction between Evidentiary Admission under Section 15 to 19 and Formal / Judicial Admission under Section 53 of the Bharatiya Sakshya Adhiniyam.

Sections 15 to 18 of the Bharatiya Sakshya Adhiniyam (Sections 17 to 20 of the Indian Evidence Act) together define admission and S.19 of the Adhiniyam (Section 21 of the Evidence Act) declares admission of a party relevant. The admissions referred to in these sections are evidentiary admissions, which are out of Court admissions, generally made prior to the proceeding. They have to be proved in a case just like any other fact, which means that they should be tendered in evidence. To put it differently, those provisions are relevant only in the course of a trial. Evidentiary admissions are not conclusive and they may be shown as wrongly made unless it operates as estoppel.

Whereas, chapter III of the  Bharatiya Sakshya Adhiniyam comprising Sections 51 to 53 (Sections 56 to 58 of the Evidence Act) deals with ‘facts which need not be proved’ and it covers facts which are judicially noticeable and facts which are formally admitted as provided in S.53, which reads as follows:

“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 of 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.”

Section 53 (Section 58 of the Evidence Act) expressly provides that facts formally admitted as provided in the section need not be proved.

Section 53 covers only admissions made during the course of proceedings as specified therein and such admissions are often called / referred as formal or judicial admissions.

The Court has to try the points or issues on which the parties are at dispute and not which they agree.

The provision covers three instances of admission of facts by a party.

The first one is the facts which the parties admit at the time of hearing; this could be oral admission before the court and recorded by the court.

The second one is the facts which the parties agree to admit before the hearing, section provides that such admission needs to be in writing.

The third one is the facts which the parties are deemed to have admitted by rules of pleadings.

The proviso to the section makes it clear that the Court is not bound to decide the case on such admissions but in its discretion can call for evidence.

11. Supreme Court on the Evidentiary Value of Admissions

The Supreme Court in many cases have explained the Value of Admissions and whether an can be explained or resiled from.

In Nagindas Ramdas v. Dalpatram Ichharam, 1974 (1) SCC 242, it has been observed:

 “Admissions, if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under S.58 of the Evidence Act (Section 53 of the Bharatiya Sakshya Adhiniyam), made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. 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 trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.”

In Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, 1960 (1) SCR 773 it was observed as follows:

“An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous.”

In the case of Gautam Sarup v. Leela Jetly, 2008 (7) SCC 85 it was observed as follows:

” A thing admitted in view of S.58 of the Evidence Act (Section 53 of the Bharatiya Sakshya Adhiniyam) need not be proved. O.8 R.5 of the Code of Civil Procedure provides that even a vague or evasive denial may be treated to be an admission in which event the court may pass a decree in favour of the plaintiff. Relying on or on the basis thereof a suit, having regard to the provisions of O.12 R.6 of the Code of Civil Procedure may also be decreed on admission. It is one thing to say that without resiling from an admission, it would be permissible to explain under what circumstances the same had been made or it was made under a mistaken belief or to clarify one’s stand inter alia in regard to the extent or effect of such admission, but it is another thing to say that a person can be permitted to totally resile therefrom.”

In Srinivas S. R and others v Padmavathamma 2010 (5) SCC 274, it is observed:

“….. a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.”

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence’.

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Exercise Questions

  1. Fact judicially noticeable need not be proved, Elucidate.
  2. Distinguish Evidentiary Admissions and Judicial/Formal Admissions?
  3. Admitted facts need not be proved, Elucidate.