Shambu Nath Mehra v. the State of Ajmer.
BosE J.-The appellant, S.N. Mehra, a Camp Clerk
S.C.R. SUPREME COURT REPORTS 201
in the office of the Divisional Engineer Telegraphs, 1956
Ajmer, has been convicted of offences under section ShambuNath
420 of the Indian Penal Code and section 5(2) of the Mehra
Prevention of Corruption Act, 1947 (Act II of 1947). v.
He was sentenced to two years' rigorous imprison- The State of Afmer
ment and a fine of Rs. 100 on each count. The sub-
stantive sentences are concurrent. Bose/.
The substance of the offences for which he was con
victed lay in obtaining sums totalling Rs. 23-12-0
from Government as T.A. for two journeys, one from
Ajmer to Abu Road and the other from Ajmer to
Reengus. The money represents the second class
railway fare for these journeys. The allegation
against him is that either he did not travel at all
between those places on the relevant dates, or, if he
did, that he did not pay the fare.
He appealed to the. Sessions Judge at Ajmer and
was acquitted~ The State filed an appeal against the
acquittal to the Judicial Commissioner of Ajmer.
The learned Judicial Commissioner accepted the
appeal and remanded the case for retrial before a
Special Judge because, by reason of certain amend
ments in the law, only a Special Judge could try an
offence under section 5(2) of the Prevention of Cor
ruption Act at the date of the remand.
The appeal here raises certain questions about
sanction which we do not intend to discus~ because,
in our opinion, the evidence adduced does not justify
a retrial as no conviction for those two offences could
be based on it.
It was first alleged that the appellant did not tra.vel
at all on the relevant dates and that the burden of
proving that he did was on him.
We do not think this issue arises because the charge
11ossumes that he did travel and there is no evidence
before us to justify even a prima facie inference that
he did not. The charge runs-
"Tha. t you, on or aboutetc .................... cheated the
Government ................. by dishonestly inducing the
Government to pay you Rs. 62-9-0 on account of T.A.
for the journeys performed, on the above-mentioned
days .................... "
202 SUPREME COURT REPORTS (1956]
1956 There is no suggestion that the journeys were. not
ShambuNath performed and only purported to be; and it would be
Mehra unfair to permit the State to go back on what it said
v. in the charge at this stage, especially after the appel-
The State of Afmer !ant has entered on his defence and virtually admitted
that he did travel on those dates; in any case, he has
not denied the fact and that would naturally operate Bose J,
to his disadvantage if the prosecution were to be
allowed to change its position in this way. We must
therefore accept the fact that he did travel as alleged
on the relevant dates, and the only question that re
mains is whether he paid the second class fares which
he later claimed, and obtained, from Government as
T.A. for those journeys.
The only proof that is adduced in support of the
allegation that he did not is that no second class
tickets were issued at Ajmer on the relevant dates
either for Abu Road or for Reengus. This is proved
by the Booking Clerk Ram Dayal, P.W. 4. But the
same witness proves that tickets are not always
issued and that passengers can pay the fare on the
train; also, if the second class is fully booked no
further tickets are issued till the arrival of the train.
In that case, passengers sometimes buy a third class
or an inter-class ticket and then pay the difference
to the conductor or guard of the train if they are able
to find second class accommodation when the train
arrives. There is no proof that one or other of these
courses was not followed on the dates with which we
are concerned. The railway registers and books
would show whether or not any such payments were
made on those dates and the State could have proved
the absence of such payments as easily as it was able
to prove, from the same sort of material, that no
second class tickets were issued. Instead of doing
that, the State contented itself with saying that no
second class tickets were issued and, then relying on
Illustration (b) to section 106 of the Evidence Act, it
contended that the burden of proving that the ac
cused did pay the second class fares was on him.
Illustration (b) runs thus:
"A is charged with travelling on a railway with-
S.C.R. SUPREME COURT REPORTS 203
out a ticket. The burden of proving that he had a
ticket is on him".
1956
ShambuNath
But this is only an illustration and must be read Mehra
subject to the section itself and cannot travel beyond v.
it. The section runs- The State of Ajmer
"When any fact is especially within the know
ledge of any person, the burden of proving that fact
is on him".
The stress, in our opinion, is on the word "es
pecially".
Section 106 is an exception to section 101. Section
101 lays down the general rule about the burden of
proof.
"Whoever desires any Court to give judgment as
to any legal right or liability dependent on the exist
ence of facts which he asserts, must prove that those
facts exist".
Illustration (a) says-
"A desires a Court to give judgment that Bshall
be punished for a crime which A says B has com
mitted.
A must prove that B has committed the crime".
This lays down the general rule that in a criminal
case the burden of proof is on the prosecution and
section 106 is .certainly not intended to relieve it of
that duty. On the contrary, it is designed to meet
certain exceptional cases in which it would be im
possible, or at any rate disproportionately difficult,
for the prosecution to establish facts which are
"especially" within the knowledge of the accused and
which he could prove without difficulty or incon
venience. The word "especially" stresses that. It
means facts that are pre-eminently or exceptionally
within his knowledge. If the section were to be in
terpreted otherwise, it would lead to the very startling
conclusion that in a murder case the burden lies on
the accused to prove that he did not commit the
murder because who could know better than he whe
ther he did or did not. It is evident 'that that can
not be the intention and the Privy Council has twice
refused to construe this section, as reproduced in cer
tain other Acts outside India, to mean that the
Bose].
1956
Sliambu Nath
Mehr'a
The State of Ajtner
Bose}.
burden lies on an accused person to show that he did
not commit the crime for which he is tried. These
cases are Attygalle v. Emperor(') and Seneviratne v.
R.(').
Illustration (b) to section 106 has obvious reference
to a 'l'ery special type of case, namely to offences
under sections 112 and 113 of the Indian Railways
Act for travelling or attempting to travel without a
pass or ticket or with an insufficient pass, etc. Now
if a passenger is seen in a railway carriage, or at the
ticket barrier, and is unable to produce a ticket or ex
plain his presence, it would obviously be impossible
in most cases for the railway to prove, or even with
due diligence to find out, where he came from and
where he is going and whether or not he purchased a
ticket. On the other hand, it would be comparatively
simple for the passenger either to produce his pass or
ticket or, in the case of loss or of some other valid
explanation, to set it out; and so far as proof is con
cerned, it would be easier for him to prove the sub
stance of his explanation than for the State to estab
lish its falsity.
We recognise that an illustration does not exhaust
the full content of the section which it illustrates but
equally it can neither curtail nor expand its ambit;
and if knowledge of certain facts is as much available
to the prosecution, should it choose to exercise due
diligence, as to the accused, the facts cannot be said
to be "especially" within the knowledge of the ac
cused. This is a section which must be considered
in a commonsense way; and the balance of conve
nience and the disproportion of the labour that would
be involved in finding out and proving certain facts
balanced against the triviality of the issue at stake
and the ease with which the accused could prove
them, are all matters that must be taken into con
sideration. The section cannot be used to undermine
the well established rule of law that, save in a very
exceptional class of case, the burden is on the prosecu
tion and never shifts.
Now what is the position here? These journeys
(1) A.LR. 1936 P.O. 169. (2) (1936] S All E.R. 36, 49.
S.C.R. SUPREME COURT REPORTS 205
were performed on 8-9-1948 and 15-9-1948. The pro- 1956
secution was launched on 19-4-1950 and the app,ellant ShambuNath
was called upon to answer the charge on 9-3-1951; Melira
and now that the case has been remanded we are in v.
the year 1956. The appellant, very naturally, said The State of Ajmer
on 27-4-1951, two and a half years after the alleged
offences: Bose J.
"It is humanly impossible to give accurate ex
planations for the journeys in question after such a
lapse of time".
And what of the prosecution? They have their
registers and books, both of the railway and of the
department in which the appellant works. They are
in a position to know and prove his official move
ments on the relevant dates. They are in a position
to show that no vouchers or receipts were issued for
a second class journey by the guard or conductor of
the trains on those days. This information was as
much within their "especial" knowledge as in that of
the appellant; indeed it is difficult to see how, with
all the relevant books and other material in the pos
session of the authorities, these facts can be said to
be within the "especial" knowledge of the appellant
after such a lapse of time however much it may once
have been there. It would, we feel, be wrong to
allow these proceedings to continue any longer. The
appellant has been put upon his trial, the prosecu
tion has had full and ample opportunity to prove its
case and it can certainly not complain of want of
time to search for and prepare its material. No con
viction could validly rest on the material so far pro
duced and it would savour of harassment to allow
the continuance of such a trial without the slightest
indication that there is additional evidence available
which could not have been discovered and produced
with the exercise of diligence at the earlier stages.
We set aside the order of the Judicial Commissioner
and restore the order of the Sessions Judge acquitting
the appellant on both counts of the charge framed
against him.
27