Shambu Nath Mehra vs The State of Ajmer on 12 March, 1956
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Criminal Appeal No. 65 of 1954
Decision Date: 12 March 1956
Coram: Justice Vivian Bose
In the matter titled Shambu Nath Mehra versus The State of Ajmer, decided on 12 March 1956, the Supreme Court of India delivered its judgment under the authorship of Justice Vivian Bose, who was joined by Justices Aiyar and N. Chandrasekhar. The petitioner, Shambu Nath Mehra, was charged by the respondent State of Ajmer under section 420 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947, for allegedly obtaining a total sum of Rs. 23‑12‑0 as travel allowance by claiming second‑class railway fares for two journeys—one from Ajmer to Abu Road and another from Ajmer to Reengus—without actually paying those fares. The prosecution relied on railway books and registers to establish that no second‑class tickets had been issued at Ajmer on the dates in question. The same witness also testified that it was not uncommon for tickets to remain unissued; passengers could pay the fare on the train, and when second‑class accommodation was fully booked, the guard would allow passengers to travel in a higher class and later pay the fare difference if second‑class space became available. The prosecution did not produce any evidence to show that the appellant had not followed either of these practices. Instead of showing the absence of payment, the prosecution invoked illustration (b) to section 106 of the Indian Evidence Act, arguing that the burden of proving actual payment of the second‑class fare rested on the accused. The Court held that illustration (b) to section 106 was inapplicable in this circumstance because the facts were equally within the knowledge of the prosecution, which could have discovered them with proper diligence. The Court emphasized that section 106 does not overturn the well‑established criminal law principle that, except in very exceptional cases, the prosecution must prove every element of the offense. The provision is intended only for situations where the accused possesses knowledge of a fact that is impossible or disproportionately difficult for the prosecution to establish, and where the accused can prove the fact without inconvenience. Since the knowledge of ticket issuance was equally accessible to the prosecution, the burden could not shift to the accused. Accordingly, the evidence presented by the prosecution was deemed insufficient to sustain a conviction, and, taking into account the long lapse of time, the Court directed that the appellant be acquitted. The judgment was reported in 1956 AIR 404 and 1956 SCR 199 and involved interpretation of the burden of proof under the Indian Evidence Act, specifically section 106 and its illustration (b).
It was observed that a fact cannot be described as being especially within the knowledge of the accused if the circumstance is also available to the prosecution, and in such a situation the provision of Section 106 of the Evidence Act would not be applicable. The Court referred to the decisions in Attygalle v. Emperor (AIR 1936 PC 169) and Seneviratne v. B. ([1936] 3 All ER 36) to support this principle. The Court further explained that the illustrations accompanying a statutory provision do not define the entire scope of that provision, nor can they limit or extend the provision’s reach; rather, when applying Section 106, the Court must consider the balance of convenience, the comparative effort required to discover and prove the facts, and the relative ease with which the accused can prove those facts. In addition, the Court noted that matters falling under Sections 112 and 113 of the Indian Railways Act, to which Illustration (b) to Section 106 is plainly relevant, are situated on a different footing. The judgment proceeded to set out the criminal appellate jurisdiction for Criminal Appeal No. 65 of 1954, which was taken by special leave from the judgment and order dated 2 January 1953 of the Judicial Commissioner’s Court at Ajmer in Criminal Appeal No. 3 of 1952, itself arising from the judgment and order dated 4 January 1952 of the Sessions Judge at Ajmer in Criminal Appeal No. 300 of 1951. Counsel for the appellant were B. P. Berry and B. P. Maheshwari, while counsel for the respondent were C. K. Daphtar, Solicitor‑General of India, together with Porus A. Mehta and P. G. Gokhale. The judgment, delivered on 12 March 1956 by Justice Bose, recorded that the appellant, S. N. Mehra, a Camp Clerk at Ajmer, had been convicted of offences under Section 420 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947). He received two years’ rigorous imprisonment and a fine of Rs 100 on each count, with the substantive sentences running concurrently. The offences involved the receipt of sums totalling Rs 23‑12‑0 from the Government as travel allowance for two journeys—one from Ajmer to Abu Road and the other from Ajmer to Reengus—amounts that corresponded to the second‑class railway fare for those trips. The allegation was that either the appellant had not travelled on the specified dates or, if he had travelled, he had failed to pay the fare. The appellant appealed to the Sessions Judge at Ajmer and obtained an acquittal. The State then appealed the acquittal to the Judicial Commissioner of Ajmer, who accepted the appeal and remanded the matter for retrial before a Special Judge, on the ground that amendments to the law required a Special Judge to try an offence under Section 5(2) of the Prevention of Corruption Act at the time of remand. The present appeal raised certain questions concerning sanction, which the Court declined to address, holding that the evidence on record did not justify a retrial because no conviction for the two offences could be sustained on that evidence. The prosecution’s initial allegation was that the appellant had not travelled on the relevant dates, and that the burden of proving his travel rested upon him. The Court observed that this issue did not arise, as the charge itself presumed that travel had occurred and no evidence was presented to allow a prima facie inference to the contrary.
In this case the Court observed that the question of whether the appellant travelled need not be examined because the charge itself presupposes that he did travel and there is no material before the Court that would permit even a preliminary inference to the contrary. The wording of the charge was quoted as follows: “That you, on or about … cheated the Government by dishonestly inducing the Government to pay you Rs. 62‑9‑0 on account of travelling allowance for the journeys performed on the above‑mentioned days ….” The Court noted that nowhere in the charge was there any suggestion that the journeys alleged were fictitious or merely pretended, and it would be unjust to allow the State to alter the substance of its accusation at this stage, particularly after the appellant had already entered his defence and, in effect, acknowledged that he had indeed travelled on the dates specified. Moreover, the appellant had not denied the fact of his travel, and permitting the prosecution to change its position now would naturally prejudice the appellant.
The Court therefore held that it must accept the factual premise that the appellant travelled as alleged on the relevant dates. The remaining issue, according to the Court, was whether the appellant had actually paid the second‑class fare for those journeys and then obtained the travelling allowance from the Government on that basis. The only evidence offered to support the allegation that he had not paid the second‑class fare was the testimony of the Booking Clerk, Ram Dayal, identified as prosecution witness number four, who stated that no second‑class tickets were issued at Ajmer on the dates in question for either the Abu Road or the Reengus journeys.
However, the same witness also explained that railway practice does not require a ticket to be issued in every circumstance. He testified that passengers sometimes settle the fare on the train itself, and that when the second‑class quota is fully booked, the railway ceases to issue further tickets until the train arrives. In such situations, passengers may purchase a third‑class or inter‑class ticket and subsequently pay the difference to the conductor or guard if they are able to obtain second‑class accommodation when the train reaches its destination. The Court observed that the evidence did not demonstrate that these alternative procedures had not been followed on the dates that were under consideration.
The Court further noted that the railway’s registers and account books would be capable of showing whether any such fare payments had been made on the relevant days. The State could have proved the absence of any payment as readily as it had proved the non‑issuance of second‑class tickets, because both matters would be recorded in the same class of railway documents. Instead of investigating the registers, the State simply asserted that no second‑class tickets had been issued and then relied upon Illustration (b) to Section 106 of the Evidence Act to argue that the burden of proving payment of the second‑class fare rested on the accused.
Illustration (b) was quoted by the State as follows: “A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.” The Court emphasized that this illustration is only an example and must be read in the context of the provision itself; it cannot be extended beyond the limits set by the statute. The statutory language, as the Court reminded, states: “When any fact is …” and therefore the illustration does not override the general rule that the prosecution bears the burden of proving the elements of the offence. Consequently, the Court concluded that the State had not discharged its evidential burden with respect to the allegation that the appellant had failed to pay the required second‑class fare.
Section 106 states that when a fact is “especially within the knowledge of any person, the burden of proving that fact is on him.” The Court stressed that the crucial element of the provision is the word “especially.” This provision functions as an exception to the general rule set out in Section 101.
Section 101 establishes the basic burden‑of‑proof principle. It provides 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.” Illustration (a) to this rule reads: “A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.” This illustration makes clear that, as a matter of principle, the prosecution bears the burden of proof in criminal proceedings.
The Court observed that Section 106 is not intended to relieve the prosecution of that ordinary duty. Rather, it is crafted to address rare situations in which it would be impossible, or at least disproportionately difficult, for the prosecution to establish facts that are “especially” within the accused’s knowledge and that the accused could prove without difficulty or inconvenience. The term “especially” therefore emphasizes facts that are pre‑eminently or exceptionally known to the accused.
The Court warned that a contrary interpretation would lead to an absurd result. If Section 106 were read to shift the burden to the accused in every case, then, for example, in a murder trial the accused would be required to prove that he did not commit the murder—a task no one could perform better than the accused himself. Such an outcome cannot be the legislative intention. The Privy Council, in Attygalle v. Emperor (1) and Seneviratne v. R. (2), twice refused to construe similar provisions to impose the burden on the accused to demonstrate his innocence.
Illustration (b) to Section 106 refers specifically to offences under sections 112 and 113 of the Indian Railways Act, which concern travelling without a valid pass or ticket. The Court explained that when a passenger is found in a railway carriage or at a ticket barrier without a ticket, it is often impossible for the railway authority, even with due diligence, to determine where the passenger boarded, where he intended to travel, or whether he purchased a ticket. Conversely, the passenger can readily produce his ticket or pass, or, if it is lost, can offer a satisfactory explanation. Consequently, the evidentiary burden in such cases more naturally falls on the passenger to establish the substance of his claim, rather than on the State to disprove it.
In this case the Court explained that the statutory provision under discussion cannot be limited or enlarged beyond its own terms simply by referring to particular illustrations. Moreover, when a fact is equally accessible to the prosecution, provided it exercises the necessary diligence, as it is to the accused, that fact cannot be characterised as being “especially” known only to the accused. The provision must therefore be applied with practical common‑sense, taking into account the balance of convenience, the disproportionate effort that would be required to discover and prove certain facts, the relative triviality of the matter involved, and the ease with which the accused could itself establish those facts. The Court stressed that this provision cannot be employed to overturn the well‑established rule of law that, except in a very narrow class of exceptional cases, the burden of proof remains on the prosecution and never shifts to the accused.
The factual background concerned two railway journeys that were recorded on 8‑9‑1948 and 15‑9‑1948, the details of which were reported in the authorities (A.I.R. 1936 P.C. 169 and [1936] 3 All E.R. 36, 49). The prosecution was instituted on 19‑4‑1950, and the appellant was required to answer the charge on 9‑3‑1951. After the case was remanded, the proceedings reached the year 1956. On 27‑4‑1951, the appellant, two and a half years after the alleged offences, declared that it was “humanly impossible to give accurate explanations for the journeys in question after such a lapse of time.”
The Court then considered the position of the prosecution. It noted that the railway authorities and the department in which the appellant was employed possessed registers and books that could disclose the appellant’s official movements on the relevant dates. Those records could also demonstrate that no vouchers or receipts for a second‑class ticket had been issued by the train guard or conductor on the days in question. Consequently, the information was as much within the “especial” knowledge of the prosecution as it was of the appellant. The Court found it difficult to accept that, after such a long interval, the facts could still be said to lie within the appellant’s “especial” knowledge, even if they might once have been so.
Having examined the circumstances, the Court concluded that it would be erroneous to allow the proceedings to continue. The appellant had already been placed on trial, and the prosecution had been given ample opportunity to gather and present its evidence; it could not now claim a lack of time to search for or prepare additional material. No conviction could be sustained on the evidence produced to date, and permitting the trial to go on would amount to harassment, especially in the absence of any indication that further undiscovered evidence existed that could not have been found with due diligence earlier. Accordingly, the Court set aside the order of the Judicial Commissioner and restored the Sessions Judge’s order acquitting the appellant on both counts of the charge.
The appellate authority set aside the order issued by the Judicial Commissioner and restored the order previously made by the Sessions Judge, which had acquitted the appellant on each of the two counts that were contained in the charge that had been formally framed against him. In doing so, the higher court confirmed that the formal accusation, as recorded in the charge sheet, comprised two separate counts, and that the Sessions Judge had found the appellant not guilty of either count. By reinstating the Sessions Judge’s decision, the appellate court affirmed that no conviction could stand on the basis of the material that had been produced, and that the appellant was entitled to be released from the liability imposed by the charge that had been framed against him. Consequently, the verdict of acquittal on both counts was re‑established, and the appellant was cleared of all allegations contained in the original charge.