Report No. 69

Chapter 21

Judicial Notice

I. Introductory

21.1. Introductory.-

Facts must, as a general rule, be proved by "evidence", that is, by the statements of witnesses and the production of documents. To this general rule, there are three important qualifications-(a) facts presumed,1 (b) facts judicially noticeable,2 and (c) facts admitted.3 There classes of facts need not be proved. In this Chapter, we shall confine ourselves to facts of which judicial notice is to be taken.

1. See infra.

2. Section 56.

3. Section 58.

21.2. In enumerating the categories of facts which need not be proved, some writers do not mention1 facts presumed. And some writers2 emphasise that in the case of a presumption, the basic facts have to be proved. It may, however, be pointed out that even in the case of facts which are presumed, the party in whose favour the presumption is made enjoys the advantage that he need not prove that particular fact. Whether the presumption is mandatory or discretionary with the court and whether it is rebuttable or rebuttable, this position remains valid. It is for this reason that Cross and Wilkins have, in their outline of the Law of Evidence,3 stated that-"No evidence need be given of facts of which the court will take judicial notice, all presumed facts or all facts which are formally admitted."

1. Woodroffe Law of Evidence, (1941).

2. Cross Law of Evidence.

3. Cross & Wilkins Outline of the Law of Evidence, (1975), p. 36, Article 9.

21.3. Moreover, it may be noted that there may be cases where in order to create a particular presumption, no particular fact need be proved by evidence. for example, a presumption that an order purporting to be made by a particular authority in exercise of a statutory power shall be presumed to have been made by that authority1 does not require the previous proof of any particular basic fact, the production of the particular order is enough. Even if technically he production is regarded as a basic fact, it is obvious that the fact that the order was made by a particular authority in such a case is one which need not be established by other evidence, and its importance in the trial is, far greater than he basic fact.

1. Compare section 16(2), Defence of India Act, 1939, construed in Emperor v. Shibnath Banerjee, AIR 1945 PC 156 (161).

21.4. In dealing with the matters of which evidence is necessary, Phipson1 in his Law of Evidence states that no evidence is required of matters which are either admitted for the purposes of the trial or judicially noticed. But, at another lace, while discussing judicial notice, he says2-"Apart from presumptions and tatters of which the court can take judicial notice, all questions of fact must be decided on evidence and the evidence must be given in open court or in such E way that the parties can deal with it."

1. Phipson Law of Evidence, (1963), p. 24, para. 41.

2. Phipson Law of Evidence, (1963), p. 5, para. 10.

21.5. The same author, in his Manual of the Law of Evidence1, states-

"No evidence is required of matters which are-

(a) presumed; or

(b) formally admitted; or

(c) Judicially noticed."

1. Phipson Manual of Law of Evidence, (1972), p. 17.

21.6. Since the effect of most presumptions is to establish a fact without proof of that particular fact, it is legitimate to regard a presumed fact as a fact of which no evidence is required. When one considers the fundamental questio.- what facts must be prove.- one cannot, either in theory or in practice, disregard the fact that if there is a presumption in respect of a particular fact, it need not be proved. The law does not require proof of that which is presumed, although, in most cases, the presumption can be displaced. From some fact which is proved, admitted or judicially noticed, another fact is presumed if the law so provides.

21.7. In general, for taking advantage of a presumption, some basis fact may have to be established. But, so far as the fact presumed is concerned, no proof is needed. This aspec.- that proof is not neede.- is fairly clear from section 4 of the Act also, which, inter alia, provides that where (under any section of the Act the Court may presume a fact, the Court may regard it as proved.

21.8. Theory of Judicial notice.-

Ordinarily, the Judge is bound to discard all previous knowledge of private facts but is it in the nature of things that many general subjects to which an advocate calls attention should be of so universal a notoriety as to need no proof. Certain facts are so notorious in themselves, or are stated in so authentic a manner in well-known and accessible publications, that they require no proof. The Court, if it does not know them, can inform itself upon them without formally taking evidence. These facts are said to be judicially noticed.1 'Universal notoriety' is a term-which is vague, and scarcely susceptible of definition.

"It must depend upon many circumstances; in one case perhaps upon the progress of human knowledge in the fields of science, in another upon the extent of information on the state of foreign countries, and in all such instances upon the accident of their being known or having been publicly communicated2" "Still more must the limits very (in reality, though perhaps no so apparently), according to the extent of knowledge and previous habits of the Judge3".

1. Woodroffe.

2. Woodroffe.

3. Woodroffe.

21.9. In general, facts of which judicial notice is taken are those which can be reasonably taken as so well-known that their proof ought not to be required1.

1. Stanley Schiff Out of Court Statements, (1963) 41 Can Bar Rev 335.

21.10. History.-

Historically, the trial of fact in a common law trial1 has been competent to find adjudicative facts in the absence of formal court-room evidence, where the facts are part of the ordinary thought and experience of reasonably educated persons in the community. This attribute of the relevant facts has been variously expressed: "the common knowledge of the great majority of mankind",2 "known to intelligent persons generally"3, what everyone is familiar with",4 "and notorious and clearly established".

1. Stanley Schiff Out of Court Statements, (1963) 41 Can Bar Rev 335, 338.

2. Reg. v. Aspinall, (1875) 2 QBD 48 (62): 46 LJMC 145 (152) (CA).

3. Reference Alberia Legislation (in re:), 1938 SCR 100 (128), (Canada).

4. Lumley v. Gye, (1853) 2 AI&BI 216 (266): 118 ER 749 (768) (QB).

21.11. Various rationales have been offered to explain the power of the Court to come to a finding about well-known facts without formal evidence. One is that the facts which a court will notice judicially are "so notorious or clearly established that evidence of their existence is unnecessary". Strahorn1 and Wigmore2 both find its basis in the usefulness of simplifying and shortening trials by assuming as true (at least provisionally), what all reasonable people believe to be true. Thayer3 agrees that judicial notice is useful for this purpose, but he sees it as ultimately grounded in the psychological processes of human beings who cannot begin reasoning without some store of accepted knowledge.

1. Strahom The process of Judicial Notice, (1928) 14 Va L Rev 544, 588 cited by Stanley Schiff Out of Court Statements, (1963) 41 Can Bar Rev 335, 340.

2. Wigmore Evidence, 3rd Edn., 1940, Vol. 9, pp. 535-536.

3. Thayer Evidence, (1898), pp. 278-280, 300; cited by Stanley Schiff.

21.12. Professor Morgan1, pursuing this argument, demonstrates the necessity, to judicial fac.- determination, of the assumption that the trier of fact, as a , reasonable human being, has a fund of commonly accepted knowledge preexisting before the present trial. He denies that the court, as a social institution to settle factual issues reasonably entertained, can be used as a forum for sham issues where the disputed facts are part of this fund2, or are otherwise accepted as indisputable by reasonable men. He, therefore, delimits judicial notice of facts (in his first branch) to those matters which are so notoriously accepted as not to be the subject of dispute among reasonable men.

1. Morgan Judicial Notice, (1944) 57 Harvard Law Review 269, 272-274.

2. Fund of commonly accepted knowledge.

21.13. The second branch according to Professor Morgan i.- "those matters capable of immediate and accurate demonstration by resort to sources of indisputable accuracy easily accessible to men in the situation of the court".

21.14. Indisputable facts will be judicially noticed and no fact which is properly noticeable judicially can be the subject of adversary dispute at the trial. According to Professor Morgan's reasoning, determinations of facts made with out courtroom evidence, but falling within the limits of judicial notice, cannot be properly objected to. His logic places these facts outside the scope of rational dispute and therefore, beyond treatment by any trial procedure. The litigants, for their part, must be satisfied with a settlement based on what all reasonable men, including themselves, would accept as true. On the whole, this explanation of the rationale of judicial notice appears to be satisfactory.