Report No. 69
IV. Section 57(1)
21.24. Law and fact.-
We now proceed to section 57(1). The law generally makes a distinction between "law and fact" in the sphere of evidence as in many other spheres. Judges have always had the responsibility of making their own investigation of the law, relying, usually, on the presentation by counsel of cases and statutes as an aid to their task. In this sense, judges have always taken judicial notice of the law. This is the principle underlying section 57(1), which provides that the Court shall take judicial notice of all laws in force in the territory of India.
21.25. However, certain laws are contained in source material which is assumed not to be readily available to the judge or, if it is available, the judge may no have the skill to comprehend its contents, and therefore, for purposes of proof these laws have been characterised as facts. This is, for example, true of foreign law, of which judicial notice is not taken. How far is this true of statutory. instruments? That is the question that arises under section 57(1).
21.26. Section 57(1)-'Laws'-Whether including instruments.-
The word "Laws in force" in section 57(1) would, presumably, include statutory orders rules, regulations, bye-laws and notifications and schemes of a general nature in force in India. There are rulings of the Supreme Court1 and other Courts,2 giving a wide meaning to the expression "law" as occurring in Article 372 of the Constitution or generally. The definition of "Indian law" in the General Clauses Act, 1897, could also be seen in this connection, by way of analogy3. It includes instruments.
1. (a) Cf. Edward Mills Co. Ltd. v. State of Ajmer, (1955) 1 SCR 735: AIR 1955 SC 2 (Article 372).
(b) State of Bombay v. F.N. Balsara, 1951 SCR 682: AIR 1951 SC 318 (329), para. (General).
2. State v. Gopal Singh, AIR 1956 Madhya Bharat 138 (FB) (Article 372) (Reviews cases)
3. Section 3(29) read with section 4A, General Clauses Act, 1897.
21.27. In a Madhya Bharat case1 it was held-
"Judicial notice can be taken of a notification issued by the Government or any competent authority in the exercise of delegated power of legislation:
(b) that judicial notice cannot be taken of a notification issued by any authority in the exercise of its executive functions;
(c) Under the last paragraph of section 57, Evidence Act, a Court has a discretion to refuse to take judicial notice of a notification made in the exercise of delegated power of legislation, unless the notification is produced."
1. State v. Gopal Singh, AIR 1956 Madhya Bharat 138 (FB).
21.28. It cannot be disputed that in the eye of law, a notification properly issued has the force of law.1
1. State of Bombay v. F.N. Balsara, AIR 1951 SC 318 (329).
21.29. The contrary view, expressed or assumed in some cases1, is not likely to prevail after the Supreme Court decisions cited above.2 Though the definition of "Law" given in Article 13(1)(a) of the Constitution does not apply to the Indian Evidence Act as such, the general principle that statutory instruments of a general nature properly made by a competent authority have the force of law, would appear to be sufficient for placing a wider construction on the expression 'law' as occurring in section 57(1).
1. (a) Collector of Cownpore v. Jugal Kishore, AIR 1928 All 355;
(b) Mathura Das v. State, AIR 1954 Nag 296.
2. See discussion in State v. Gopal Singh, AIR 1956 Madhya Bharat 138.
21.30. Section 57(1)-Judicial notice of statutory instruments.-
However, some practical questions do arise in this context. What should the proper practice be when judicial notice is to be taken of notifications, rules and other statutory instruments issued under various Acts? No doubt, speaking in the abstract, the expression "law" should (as mentioned above) be construed as so as to include statutory instruments, at least those statutory instruments which partake of the character of general mandates. But, the practical application of the section is, in this regard, not easy.
21.31. Since statutory instruments now figure more often in courts than was the case when the Evidence Act was enacted, this question has an importance of its own. Recent cases show the increasing practical importance of these instruments, in relation to the law of evidence.
21.32. Case law as to statutory instruments.-
For example, in a Kerala case,1 the question arose relating to a notification which was required to bring a law into force. Should the court insist on the notification being produced and proved in the ordinary course, or should the court itself find out, by resort to the appropriate books or documents, whether the notification had been issued? This was one of the questions to be considered.
1. The Executive Officer, etc. v. Devassy, 1971 KLR 33 (37) (FB).
21.33. The High Court held that:-
"It is clear from section 57 of the Evidence Act that, in all cases where the court is bound to take judicial notice, the court may resort for its aid to appropriate books or documents of reference. Therefore, if that were necessary, the court should have looked into the Gazette or other book or document of reference for the purpose of ascertaining, whether or not the law here in question had been brought into force. It is only where a document of reference for the purpose of deciding such a question is not readily available1 that the question of the court calling upon the party concerned to produce it would arise."
1. Emphasis supplied,
21.34. The High Court did not accept the contention that a notification bringing the relevant Act into force would have to be "proved" in the ordinary sense, by tendering the notification in evidence.
21.35. Incidentally, it may be noted that a legislative provision for bringing an Act into force by notification is regarded as "conditional legislation", and not as "delegated legislation" in the strict sense. The notification in question in the Kerala Case was of the type of conditional legislation. However, this distinction does not appear to be material with reference to the topic of judicial notice. A notification bringing an Act into force should be regarded as a "law" for this purpose. It is the final formality that puts life into the Act.
21.36. In a Delhi case,1 the question arose if the court should take judicial notice of the 'Rules of Business' framed under Article 166(3) of the Constitution. In this case, the State Government of Maharashtra had given consent of the State Government to the functioning of the Special Police Establishment of the C.B.I, in its State. The petitioner raised the objection in the High Court that the 'Rules of Business' framed under Article 166(3) of the Constitution, on the competence of the Chief Minister to accord the said consent, were not produced in the court by the prosecution. The High Court held that the 'Rules of business' made under Article 166(3) of the Constitution would have to be taken judicial notice. They are not a "fact" which has to be proved by primary evidence.
1. Management of the Advance Insurance Co. Ltd., v. Shri Gurda Mai, Supdt. of Police, AIR 1969 Del 330.
21.37. In a Punjab case1 the question arose regarding the Bye-laws of a, Municipal Committee framed under section 188 of the Punjab Municipal, Act, 1911. The trial court did not admit in evidence a copy of an extract from the register of Births maintained by the Municipal Committee in pursuance of Bye, laws for the reason that such bye-laws had not been proved.
1. Sham Lal v. Muni Lal, AIR 1972 P&H 199.
21.38. The matter came up in revision before the Punjab & Haryana High Court. It was held-"the 'Bye-laws' were framed by the Municipal Committee in exercise of the powers conferred on it by clause (c) of section 188 of the Act. They have thus the same force as that section itself and, being provisions of a legislative character, must be held to constitute a 'Law' within the meaning of section 57 of the Indian Evidence Act, and no question of the petitioners being asked to 'prove' them arises. The Court must take Judicial notice thereof which means that the court is itself duty-bound to hunt them up and apply them to the facts of this case even though the parties or their counsel fail to produce them."
21.39. In a Kerala case,1 it was held that if what is required to be proved in terms of the notification under a parent Act is the accession of a person to the office of a Food Inspector, then that was a matter of which the court was bound to take judicial notice under section 57, clause (7), of the Evidence Act, the fact of his appointment having been notified in the official gazette. That fact was asserted in the complaint, so that it was not as if the court was not made aware of it.
If the court had any doubt on the point, it was its duty to resort to the appropriate document of reference, namely, the official gazette, or if it could not readily find this document, to call upon the complainant to produce the document. Not having done so, and the fact of the complainant's appointment as Food Inspector not having been challenged, it was not open to the court to say, after the close of the trial, that it would not take judicial notice of the complainant's appointment as Food Inspector; the least it should have done was to call upon the complainant to produce the gazette notification, and, it was only if he failed to do so that it could have refused to take judicial notice.
1. State of Kerala v. V.P. Enadeen, 1971 KLT 19 (FB).
21.40. Need for clarification.-
We have referred to these cases to show the nature of the questions raised. Similar questions are likely to arise in other High courts. In order to avoid further controversy, it appears to be desirable to add an Explanation to section 57, incorporating, in substance, what was held by the Kerala High Court in the first case cited above.1 That appears to be the most convenient view.
1. Executie Officer v. Devassy, 1971 KLR 33 (37) (FB).
21.41. True position.-
The true position is this. Two extremes have to be avoided. Under the last paragraph of the section, the Court is given a discretion to refuse to take judicial notice of any fact unless the person calling upon the court to take judicial notice of such fact produces any such book or document as it may be necessary to enable it to do so. Thus, the Court is entitled to demand production of such books or documents. At the same time, they may be otherwise accessible for its reference; and in such cases, the Court should at least make reasonable efforts.
In view of the above considerations, a clarification is desirable. The following is a rough draft of Explanations, which could be added at the appropriate place in section 57 so as to clarify the position:-
"Explanation 1.-Where, by virtue of this section, the court is bound to take judicial notice, and the question relates to the existence, extent, commencement, or terms of a statutory instrument, the court shall, for the purpose of deciding the question, resort for aid to appropriate books or documents of reference if such books or documents are readily available, before calling upon the party concerned to produce such books or documents."
"Explanation 2.-'Statutory instrument' means a rule, notification, by law, order, scheme, form or other instrument made under an enactment"1.
1. Cf. the Law Commission's Report on the General Clauses Act, 60th Report, discussion relating to section 3(60A), and draft clause.