The Surreptitiously concealed doctrine of Res gestae

The term "Res gestae" has no where been defined in the Indian Evidence Act however, section 6 of the Act is founded on the doctrine of res gestae. Section 6 of the Indian Evidence act state as follows

"Facts though not in issue, are so connected to the fact in issue to form part a part of the same transaction, are relevant, whether they occurred in same time and place or at different times and places"

What is the meaning of the term Res gestae ?

Res gestae is a latin term and the literal meaning is "things done" however, when interpreted into English it means "things done in a course of transaction.

What does transaction mean ?

Transaction refers to physical acts, omissions or the words uttered which form a series so interconnected and interwoven to the fact in issue making it relevant.The ensemble of the acts or omission and the accompanying words make the transaction so appropriate and probable to the fact in issue that it inevitably becomes relevant. However its admissibility can be included or excluded by the court.

What is res gestae as an act/omission ?

When the acts or omission which though may occur in the same time or place of the incident or at different times and places of the incident (in this i refer to the events which are though scattered but are integrated to a single transaction )but are part of a single scheme then such acts and omissions constitute a single transaction and are thus relevant.

What is res gestae as a statement ?

Even statements and the words uttered accompany the physical acts. But the words must have been uttered or the statement must have been said soon "before" or "after or "along" the incident. It must be contemporaneously made either during or before or subsequently after the occurrence of the incident. Words de-recenti weigh more value than the words uttered after a long or a considerably long period of time leaving room thereby to fabricate a false story.
This rule is also considered as an exception to the hearsay evidence.

What are the points to determine if a fact forms part of the same transaction or different transaction ?

Honestly speaking, there is no standardized method to determine as to which fact forms a part of transaction and which fact doesn't. However, these points guide to the correct conclusion

==> Proximity of time
==> Continuity of action
==> Transaction must form part of a single scheme
==> Existence of common purpose

Why was this doctrine so surreptitiously concealed by the drafters of the Indian Evidence Act ?

This doctrine has always been severely criticized by eminent jurists. It has been considered confusing, ambiguous and invaluable. It is considered useless as it admits the rule of hearsay evidence.Prof. Wigmore said " the phrase has not only been useless but positively harmful".

I tried to explain the doctrine of res gestae in a question answer format. Hope this methodology helped you.

If you have any queries or questions kindly comment below, i shall be more than happy to help.

Maitreyi

DISMEMBERING PART XVII(OFFICIAL LANGUAGE)OF THE INDIAN CONSTITUTION

Part XVII of the Indian constitution deals with the Official language and is divided into four chapters which are as follows

Chapter I - Language of the Union (343 & 344)
Chapter II- Regional Language (345,346 & 347)
Chapter III - Language of the supreme Court and High Court,Etc (348 & 349)
Chapter IV- 350,350A,350B ,351)

I will explain to you all the significant contents of each chapter which are important in examination perspective.

==>> CHAPTER I LANGUAGE OF THE UNION

1) Official language of the Union shall be Hindi in Devanagari Script
2)Form of numerals used for official purposes of the union shall be international form of Indian numerals.
3)The provision for the establishment of a commission and a committee in official language is given under Article 344.
4)The PRESIDENT shall constitute a commission by order which shall consist a Chairman and other members representing the languages specified in the EIGHTH SCHEDULE.
5)There shall be a Committee whose duty shall be to examine the recommendation of the commission made to the President
6)The committee shall consist of 30 members (20 members of the Lok Sabha and 10 from the council of states).

=>> CHAPTER II REGIONAL LANGUAGE

The official language or the languages of the state shall be as the state legislature adopts (Article 345)

==>LANGUAGE OF THE SUPREME COURT OR HIGH COURT, ETC

1)English Language shall be used in Supreme Court and High Courts (Article 348)
2)Governor of a state with a previous sanction of PRESIDENT authorise the use of Hindi language, or any other language for the official purposes of the state, in proceedings in the High Court.

==>> Special Directives

1)The language to be used in the redress of grievances shall be the language used therein.(Article 350)
2)Facilities for instruction in mother tongue at primary stage of education to children belonging to linguistic minority groups shall be the endeavor of state and every local authority within state.(Article 350A)
3)The PRESIDENT shall appoint a special linguistic officer who shall investigate all matters relating to safeguard provided for linguistic minorities (Article 350B)
4)It shall be the duty of the union to develop, promote and spread Hindi Language and to draw vocabulary primarily on Sanskrit and secondarily on other languages (Article 351)

If anybody happens to put forward a question "What is the official language of India "? You know the answer. There is no official language in India, we only have an official language of the Union which is Hindi in Devanagari script.

Maitreyi

DISTINCTION BETWEEN ARTICLE 323A AND 323B

=>> ARTICLE 323A

1) Article 323A contains provision with respect to Administrative Tribunals. Administrative Tribunal deal with disputes and complaints related to Public services.

2)The Parliament by law is not empowered to establish an Administrative Tribunal hierarchy.

3) The exclusive power to make law to provide for the adjudication and trial of disputes and complaints by the administrative tribunal is vested on the parliament.

=>> ARTICLE 323B

1)Article 323B contains provision with respect to Tribunals of other matters.

2)Appropriate Legislature (Parliament/ State Legislature) is empowered to establish hierarchy of tribunals under clause 3 (a) of the Article.

3)The exclusive power to make law to provide for the adjudication and trial of disputes, complaints or offences with any of the matter specified in 323B(2)is vested on the appropriate legislature (Parliament/State Legislature).

Hope this helps.

Maitreyi

WITNESS NOT EXCUSED FROM ANSWERING INCRIMINATING QUESTIONS

Section 132 of the Indian act has incorporated the provision of not excusing witnesses from answering any questions relevant to the matter in issue in any civil or criminal proceeding which incriminates, or is likely to incriminate, or subject him to penalty or forfeiture. As per the provisions of this section it clearly demonstrates that the answering of questions relevant to the matter in issue is not at the option of the witness to decide but it his duty to answer every question being put forward with truthfulness to the best of his knowledge.

However, if we look into the proviso of this section it mentions that “no such answer, which the witness shall be compelled to give, shall subject him to any arrest, prosecution , or to be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer.

The proviso of this section sanctions a protection to the witness from any arrest, prosecution proved against him in any criminal proceeding. But a clear demarcation needs to be drawn in this regard as the proviso only mentions about the witness who is compelled to answer. Now, the immediate question which pops into our mind is “What does compulsion refer to “? There have been divergence with respect to the meaning of compulsion but in a nutshell it could be said as question which the witness is bound to answer where in non adherence to the same the witness is put to an adverse presumption. The proviso is also successful at explaining where in case of contravention as to stating truthful answers the witness shall be liable to punishment for giving false evidence (perjury) under section 193 of the Indian Penal Code.

So the crux of the matter converges to the conclusion that when a witness willfully or voluntarily answers the question he shall not be shielded with the protection entrusted in the proviso however, when the witness is compelled to answer questions he shall be entitled to reap the benefits as entrusted to him under the proviso of this section.

A small write up from my end to help you understand this section better.

Maitreyi

DISTINCTION BETWEEN ADMISSION AND CONFESSION

X======= ADMISSION ========X

1) These are the statements oral/ documentary) which suggest any inference to a fact in issue or a relevant fact and which is made by any of the persons mentioned under section 18,19.20 of the Act.

2) Admissions are generally in the Civil proceedings but may also be used in Criminal proceedings.

3) Admissions are a mere acknowledgement of a fact which suggest an inference to a fact in issue or a relevant fact.

4) An admission could be inclupatory or exculpatory in nature. Which means that it could run in the favor of the person making it or against him.

5) An Admission made to a police officer, or in custody of police officer or under any inducement or in promise of secrecy would stand relevant.

6)An admission is not a conclusive proof of the fact admitted which means that can be rebutted unless they operate as estoppel.

7) An admission by a co-plaintiff or a co- defendant are not an evidence against others.

8)In admissions the statements given by a person not a party to the case can be an admission against parties.Section 99 of the Indian Evidence Act states that evidence could be given by a third person not a party to the case when his interest is affected due to the contemporaneous agreement varying the terms of the contract.

X========= CONFESSION=========X

1)Confession is no where defined in the Indian Evidence Act, however a confession could be said as a statement (Oral/documentary) which suggest an inference to a fact in issue or a relevant fact in case of crime.

2) Confessions find place in Criminal proceedings only.

3) Confession is an admission .But every admission is not a confession.

4)A confession is an admission of the guilt and it always runs against the interest of the person making it.

5) A confession made to a police officer, or under a police custody, or inducement of threat by a person in authority all stand irrelevant as the provisions of section 24,25 and 26 of the Act are attracted.

6) A confession is considered a satisfactory piece of evidence however the court may corroborate such evidences as a rule of prudence.

7)A confession made by an accused in a joint trial is relevant against all the co - accused.(Sec 30 of the Act to be referred)

8)A Confession must admit in terms of the offence all the facts which constitute such offence.

This was a small initiative from my side to help you know more about different concepts of law.Hope this was helpful.

Maitreyi Raghuraman

FINANCE COMMISSION OF INDIA

=> To being with understanding the importance of Finance commission of India it is mandatory to know the objective behind the establishment of this statutory body.The state is guided by the responsibility of implementing welfare schemes however the states are meagerly funded as compared to the Center.Therefore, a statutory body like that of the Finance Commission was established on whose recommendations the Center transfers funds to the state in the form of grants.This helps in the growth and the well being of the citizen of India.

=> Article 280 of the Constitution of India provides for the establishment of Finance Commission.

=> Finance Commission consists of a chairman and four other members.

=> The parliament by law determines the qualification and the manner of their selection.

=> The Finance ( Miscellaneous provisions ) Act, 1951 provides that the chairman of the commission shall be selected from among the members experienced in the public affairs.

=> The other four members from among members
(i) Who have been or qualified to be a Judge of High Court
(ii)Possess special knowledge in finance and accounts.
(iii)Have experience in financial and matters of account
(iv)Have special knowledge of economics

=>The Finance commission shall hold the office for a period as specified by the Presidential order.

=>The finance commission shall have the power of a civil Court in Summoning, enforcing attendance of witnesses, production of documents and requisitioning public record from any court or office.

=> Under Article 281 the President shall cause every recommendation made by the Finance commission to be laid before each House of the Parliament with an Explanatory memorandum.

DUTIES OF THE FINANCE COMMISSION

The finance commission shall be duty bound to make recommendations to the President as to -

A)Distribution between the Union and the state as to the net proceeds of the taxes which are to be or may be divided and allocation between the states of the respective shares of such proceeds

B)Principles which should govern the grants in aid of the revenues of the State out of the Consolidated fund of India.

C)Measures needed to augment the Consolidated funds of the state to supplement the resources of the Panchayat in the state on the recommendation made by the Finance commission of the state .
D)Measures needed to augment the Consolidated fund of the state to supplement the resources of Municipalities in the state on the recommendation made by the Finance Commission of the state.

E)In the interest of sound finance

=> Inspite of the establishment of this Statutory body there is another Political body called the planning commission which makes 70 % of the recommendation to the President. Over 70 % of grant given by Center to the State in recommendation of the planning commission are discretionary grants. Since the Planning commissions role are myriad and important it is recommended that the planning commission be made a Statutory body.

Hope this small write up helps .

Maitreyi

WHEN CAN PARLIAMENT LEGISLATE IN THE MATTER OF CONCURRENT AND STATE LIST

      The parliament can legislate in the matters of the state list and concurrent list under these five important circumstances which are dealt under Part XI of the Constitution of India between Article head 248 to 254.

=> Article 248 talks about the residuary powers of the legislation which are conferred to the Parliament.These are the exclusive power given to the Parliament to make laws with respect to the Concurrent and the State list. Since it is impossible to determine all the matters of future legislation the Parliament has been conferred with this exclusive power to make legislation with respect to matters in the Concurrent and the Sate list respectively.

=>Article 249 confers the power to the Parliament to legislate with respect to matters in the state list in the national interest. When the Parliament considers that it is necessary and expedient in the national interest to make laws in matter of the state list it shall be lawful for the Parliament to make laws for the whole or any part of the territory of India. It is when the Council of States (Rajya Sabha) declares by resolution supported not less than 2/3rd of the members present and voting to make laws with respect to the matters enumerated in the State list. The resolution passed under this Article shall remain in force for a period not exceeding 1 year. The power to legislate with respect to matters in the State list in the national interest lies only in the Council of States (Rajya Sabha).

=>Article 250 states that when the Proclamation of emergency is in operation the Parliament has the power to legislate with respect to any matter enumerated in the State List. The Parliament can make laws for the whole or any part of the territory of India. This provision has been incorporated to make sure that a unitary power prevails during the proclamation of emergency to deal with the situation more effectively and efficiently.

=>Article 252 states that the Parliament can legislate for two or more states with their consent. If it appears to the legislature of two or more states that the parliament needs to make laws with respect to any of the matters of the state list which it is not entitled to make (Except under Article 249 and 250) and that it is desirable to be regulated by the Parliament then a resolution shall be passed by all the Houses of the legislature to that effect. However any Act so passed can only be amended by the Parliament and not by the state legislature in this case.

=>Article 253 empowers the Parliament to make laws to the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, associations or other body.

In the next post i shall be discussing how the validity of law is decided on the basis of the doctrines.

Regards,
Maitreyi