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State Of Gujarat v. Dhulaji Bavaji
Factual and Procedural Background
The opinion concerns proceedings under the Bombay Prohibition Act. The accused was found in a public place (Thakardavas) in a state such that he was not able to take care of himself. The prosecution charged the accused under section 66(1)(b) (consumption of intoxicant) and under section 85 (being found drunk and incapable of taking care of himself in a public place). The accused's case was that he was in his house when the police raided the locality and that he had not drunk or consumed any liquor at all.
At the trial level the learned Magistrate held that the prosecution had failed to establish that the offence under section 66(1)(b) was committed within his territorial jurisdiction. On appeal, His Lordship J.M. Shelat reviewed the evidence and issues of jurisdiction and statutory interpretation. The opinion records that His Lordship "after discussing the evidence held that there was sufficient acceptable evidence to convict the accused in respect of the charge against him under sec. 85(1)(i) and sec. 85(1)(iii) of the Bombay Prohibition Act." The learned Assistant Government Pleader (AGP) contended that the Magistrate was in error in not convicting under section 66(1)(b) and advanced several jurisdictional and evidentiary arguments to that effect. The appeal was ultimately allowed.
Legal Issues Presented
- Whether the learned trial Magistrate was in error in holding that the prosecution had failed to establish that the offence under section 66(1)(b) occurred within his territorial jurisdiction.
- Whether, given the accused was found intoxicated in a public place, a presumption (under section 114 of the Evidence Act) or other rules could justify treating the place where he was found as the place of consumption.
- Whether sections 179, 180 or 182 of the Code of Criminal Procedure could confer territorial jurisdiction on the trial Magistrate to try the offence under section 66(1)(b) when the accused was found intoxicated within his limits.
- Whether section 106 of the Evidence Act could shift the burden to the accused to prove that he had not consumed the prohibited liquor in the Magistrate's jurisdiction because the fact of where he consumed was within his special knowledge.
- Whether section 531 of the Code of Criminal Procedure could save any defect of venue or jurisdiction in these circumstances.
Arguments of the Parties
Learned Assistant Government Pleader (AGP)
- Argued the learned Magistrate erred in holding the prosecution failed to prove the offence under section 66(1)(b) occurred within his territorial jurisdiction.
- Contended that because the accused was found in a public place in such a condition that he could not take care of himself, it should be assumed he consumed the prohibited liquor at that very place (i.e., within the Magistrate's jurisdiction).
- Sought to rely on sections 179, 180 and 182 of the Code of Criminal Procedure to establish that the Magistrate could try the accused for section 66(1)(b) despite uncertainty as to the exact place of consumption.
- Invoked section 114 of the Evidence Act (common course of natural events) to support a presumption that consumption occurred where intoxication was observed.
- Argued that section 106 of the Evidence Act applied because the precise place of consumption was within the special knowledge of the accused and thus the onus lay on him to show it occurred outside the Magistrate's jurisdiction.
- Ultimately invoked section 531 of the Code of Criminal Procedure to contend that venue errors should not necessarily vitiate the proceedings unless a failure of justice resulted.
Accused
- Maintained that he had not drunk or consumed any liquor and that he was in his house when the police raided the locality.
- Did not assert that the substance consumed (if any) was a medicinal or toilet preparation containing alcohol within the meaning of subsection (2) of section 66.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Caldwell v. Jones, 1923 (2) O.B. 309 | Interpreting the word "consume" to be read in its natural and ordinary sense when used in licensing/consumption statutes. | Used to support the dictionary meaning of "consume" (to drink/eat/devour) and to distinguish consuming an intoxicant from merely being found drunk. |
| In re L. N. Mukherjee and others, A.I.R. 1961 Mad. 126 | Consideration that criminal conspiracy, for s.180 purposes, can be treated as an offence related to other acts and similar to abetment so as to attract s.180. | Court reviewed this decision and concluded that it was properly read as treating conspiracy like abetment for s.180; but this doctrinal point did not help the AGP in the present facts. |
| Banwarilal v. Union of India, A.I.R. 1959 Kerala 311 | Analogy between conspiracy and abetment for the purpose of applying section 180 of the Code. | Cited in support of the view that s.180 can apply where the first offence is similar to abetment; the court regarded this line of authority as consistent with rejecting s.180 on the facts of the present case. |
| State of Madhya Pradesh v. Shri K.P. Ghiara, I.R. 1957 S.C. 196 | Illustrates the type of "uncertainty" of venue contemplated by section 182 — where the chargesheet/averments leave it uncertain in which of several local areas the offence was committed. | Relied upon to explain the proper scope of s.182; the court distinguished that case from the present facts because the prosecution here did not allege uncertainty between specified local areas. |
| Seneviratne v. R., 1936 (3) All E.R. 36 | Authority concerning burden principles analogous to section 106 of the Evidence Act (privy council on Ceylon law): burden is not shifted to accused except in exceptional cases. | Used to support the proposition that section 106 does not abrogate the fundamental rule that the prosecution bears the burden of proof; s.106 applies only where facts are pre-eminently within accused's knowledge. |
| Shambu Nath Mehra v. State of Ajmer, 1956 S.C.R. 199 | Confirming that section 106 of the Evidence Act does not displace the prosecution's burden and applies only in exceptional factual contexts. | Applied to reject the AGP's argument that section 106 required the accused to prove where he consumed liquor; the court held the knowledge was equally available to the prosecution if it exercised due diligence. |
| Krishan Kumar v. Union of India, A.I.R. 1959 S.C. 1390 | Discussed the circumstances where facts especially within accused's knowledge may impose on him the burden to explain (in a different statutory context). | The court held Krishan Kumar did not alter the established principle from Shambu Nath Mehra and Privy Council decisions and that it did not assist the AGP here; s.106 still could not be used to shift the prosecutorial burden absent exceptional circumstances. |
Court's Reasoning and Analysis
The court proceeded by first construing the statutory offence and then addressing jurisdictional and evidentiary contentions advanced by the AGP.
1. Statutory construction of section 66(1)(b) and subsection (2):
- The court observed that section 66(1)(b) makes the act of "consumes" an intoxicant an offence. The legislature used the verb "consumes", not a formulation such as "found to have consumed."
- Because the statute does not define "consume", the court applied its ordinary dictionary meaning (citing Webster's) and Caldwell v. Jones to conclude "consume" means to drink or otherwise use the prohibited liquor; the offence completes upon consumption.
- Sub-section (2) of section 66 imposes a mandatory presumption rule as to proof: if it is proved that the accused's blood alcohol concentration is not less than 0.05% w/v, then the burden to show the liquor was a permitted medicinal or toilet preparation is on the accused.
- In the present case, the accused did not assert that the consumed substance (if any) was a permitted medicinal or toilet preparation; instead he denied consumption altogether.
2. Distinction between consuming and being found drunk:
- The court emphasized a clear statutory distinction: section 66(1)(b) penalises the act of consuming, while section 85 makes it an offence to be found drunk and incapable of self-care in a public place. The two are distinct offences.
- Accordingly, proof that a person was found intoxicated at a location does not automatically prove consumption at that same location.
3. Rejection of presumptions based on section 114 of the Evidence Act:
- The court rejected the AGP's contention that a presumption under section 114 (common course of natural events) obliges the court to consider that consumption necessarily occurred where intoxication was observed; the court noted modern mobility and transport permit consumption at one place and being found intoxicated elsewhere.
- The Prohibition Act contains no such statutory presumption that consumption occurred at the place where one was found drunk.
4. Territorial jurisdiction under the Code of Criminal Procedure (sections 177, 179, 180, 182 considered):
- Section 177 establishes the general territorial principle: an offence should ordinarily be tried within the local limits where it was committed.
- Section 179 applies where an offence consists of an act and a consequence which together form the offence (illustration: wounding in one place and death in another for culpable homicide). The court held section 179 applies only where both act and consequence are ingredients of the same offence. In contrast, consumption is a complete offence upon the act of consumption and intoxication as consequence (being found drunk) is not an essential ingredient of section 66(1)(b); thus s.179 does not help.
- Section 180 applies where an act is an offence by reason of its relation to another act (e.g., abetment, receiving stolen property). The court held s.180 does not apply on these facts because consumption is not an offence defined by its relation to another act.
- Section 182 deals with uncertainty as to the place of commission (four contingencies enumerated). The court analysed the contingencies and concluded that the first contingency (uncertainty between specified local areas) requires the prosecution to aver the offence was committed in one or other local area such that uncertainty exists between them. In the present case the prosecution could not say it was uncertain between specified local areas; rather, it could not specify where the offence occurred at all. Thus s.182 is inapplicable.
- The court relied on State of Madhya Pradesh v. K.P. Ghiara as an illustrative authority on the type of venue uncertainty contemplated by s.182 and explained why that precedent was distinguishable.
5. Burden under section 106 of the Evidence Act:
- The AGP contended the place of consumption was within the accused's special knowledge and thus s.106 should place onus on him. The court rejected this, applying established authorities (Seneviratne, Shambu Nath Mehra, Krishan Kumar) to reaffirm the general rule that the burden of proof in a criminal prosecution rests on the prosecution and does not shift except in exceptional circumstances where the relevant facts are pre-eminently within the accused's knowledge.
- The court held that the knowledge of where consumption occurred was equally available to the prosecution if it had exercised due diligence; therefore s.106 did not apply to force the accused to prove the place of consumption.
6. Section 531 (venue error doctrine):
- The court observed section 531 provides that a finding, sentence or order shall not be set aside solely because proceedings took place in the wrong local area unless such error occasioned a failure of justice. The court found no applicable finding or sentence here that could be set aside under s.531, because the learned trial Magistrate had declined to convict for lack of proof of jurisdiction.
Overall, the court concluded that none of sections 179, 180 or 182 of the Code of Criminal Procedure could be invoked to confer jurisdiction on the trial Magistrate in respect of the offence under section 66(1)(b) in the present facts, that section 106 could not be used to shift the burden to the accused, and that section 531 did not assist the AGP. At the same time the court recorded that there was sufficient acceptable evidence to convict under section 85(1)(i) and section 85(1)(iii) of the Bombay Prohibition Act.
Holding and Implications
Holding: Appeal allowed.
Core rulings (as stated in the opinion):
- The court held there was sufficient acceptable evidence to convict the accused in respect of the charge under section 85(1)(i) and section 85(1)(iii) of the Bombay Prohibition Act.
- The court rejected the AGP's contention that the learned Magistrate was in error in not convicting under section 66(1)(b) on the basis that consumption had to be presumed to have occurred where the accused was found, or that sections 179, 180 or 182 CrPC, section 106 Evidence Act, or section 531 CrPC could cure the jurisdictional deficiency alleged by the AGP.
Implications:
- Direct effect on the parties: the appellate court found the evidence sufficient for conviction under the provisions of section 85 cited; the court also upheld the conclusion that the prosecution had not met the burden of proving territorial jurisdiction for an offence under section 66(1)(b) and rejected statutory and evidentiary routes proposed by the AGP to overcome that shortcoming.
- No broader or novel precedent was expressly announced beyond the court's interpretations and applications of existing provisions (the opinion applies established principles on the meaning of "consume", the limits of sections 179/180/182 CrPC for venue, and the restricted effect of section 106 of the Evidence Act). The court's reasoning reiterates established doctrine rather than creating new law.
J.M. SHELAT
(1) His Lordship after discussing the evidence held that there was sufficient acceptable evidence to convict the accused in respect of the charge against him under sec. 85 (1)(i) and sec. 85(1)(iii) of the Bombay Prohibition Act. His Lordship further stated:
It was then contended by the learned Assistant Government Pleader that the learned Magistrate was in error when he held that the prosecution had failed to establish that the offence under section 66(1)(b) occurred within his territorial jurisdiction. The learned Assistant Government Pleader contended that since the accused was found in a public place in Thakardavas in such a position that he was not able to take care of himself we must assume that he must have consumed prohibited liquor at that very place that is to say within the jurisdiction of the learned trial Magistrate. He also contended that the learned trial Magistrate could have tried the accused and convicted him under sec. 66(1)(b) by reason of the provisions of sections 179 180 and 182 of the Code of Criminal Procedure.
(2) Now section 66(1)(b) of the Bombay Prohibition Act provides that:
Whoever in contravention of the provisions of this Act or of any rule etc...... consumes uses etc......any intoxicant shall on conviction be punished etc... Sub-section (2) of section 66 contains a rule as to proof and also a presumption which is contained in mandatory terms. That sub-section provides that: Where in any trial of an offence under clause (b) of sub-section (1) for the consumption of an intoxicant it is alleged that the accused person consumed liquor and it is proved that the concentration of alcohol in the blood of the accused person is not less than 0 05 percent weight in volume then the burden of proving that the liquor consumed was a medicinal or toilet preparation......... containing alcohol the consumption of which is not in contravention of the Act or any rules regulations or orders made thereunder shall be upon the accused person... .
(3) The sub-section enjoins upon the Court in the absence of such proof to presume the contrary. Under Sub-section (2) of section 66 therefore the burden that the liquor was not prohibited intoxicant has been thrown upon the accused. It was however not the case of the accused that what was drunk or consumed by him was not prohibited liquor and that what he had consumed was a medicinal or a toilet preparation containing alcohol. His case in fact was that he was in his house when the police raided the locality and that he had not drunk or consumed any liquor at all. Now it is fairly clear that sub-section (1)(b) of section 66 makes the act of consumption of an intoxicant an offence. The sub-section uses the word consumes which means that the act of drinking or consuming an intoxicant has been made an offence. The Legislature has not used the words having been found to have used or consumed. Therefore the offence under section 66(1)(b) is complete when a person consumes prohibited intoxicant. The act does not define the word consume and therefore we must attribute to the word consume its literary dictionary meaning. According to Webster's New World Dictionary 1956 edition the word consume means to drink or eat up devour. Lord Hawart C. J. while dealing with the word consume in section 4 of the Licensing Act 1921 in Caldwell v. Jones 1923 (2) 0.B. 309 also has observed that the word consume must be read in its natural and ordinary sense and on such a meaning held in the light of the provisions of section 4 of the Licensing Act that that section prohibited except during the permitted hours and subject to the specific exceptions provided for by the Act the consumption on licensed premises of any intoxicant liquor even though that liquor might not have been sold or supplied on those premises but was brought into the premises by the person consuming it there. When the word consume thus is given its dictionary meaning it would mean to drink or to otherwise use prohibited liquor. There is a clear distinction between the act of consuming and the fact of a man having been found drunk. In fact the Act itself makes that distinction for under section 66 (1)(b) the act of consuming has been made an offence while under section 85 the fact of a man having been found drunk and incapable of taking care of himself in any street thoroughfare are public place has been made a distinct offence.
(4) But it was contended that we must presume under section 114 of the Evidence Act that the accused must have consumed liquor at the very place where he was found by the police regard being had to the common course of natural events. But there is no such presumption in the Act that a person should be considered to have taken liquor at the very place where he is found intoxicated. With the facility of speedy transport available now-a-days it is always possible for a person to drink or consume liquor at one place and to be found in an intoxicated state at another place. Not only the Prohibition Act does not provide for any such presumption but it does not throw the burden upon the accused to prove that he drank liquor at a place other than the place where he was found intoxicated. Besides there is nothing like the common course of natural events as contemplated by section 114 of the Evidence Act for a person found intoxicated at one particular place to have of necessity consumed liquor at the very same place.
(5) Section 177 of the Code of Criminal Procedure provides that every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed. Therefore the competency of a forum to take cognizance of or to inquire into or try an offence as defined by section 4 of the Code is determined by the place where the offence is committed. Offences are in their nature local and the jurisdiction of the criminal Courts is also local A Magistrate within whose jurisdiction an offence is committed is authorised under the Code to take cognizance of and to try an accused or commit him to the Court of Sessions. A Magistrate therefore has no power by virtue of section 177 of the code to try an accused for an offence committed wholly outside the limits of his jurisdiction. It follows therefore that before a person can be convicted it is for the prosecution to establish that the Court which takes cognizance of and tries him has territorial jurisdiction. But it was contended by the learned Assistant Government Pleader that under section 179 of the Code the accused could have been tried and convicted by the learned Magistrate. Section 179 provides that:
When a person is accused of the commission of any offence by reason of anything which has been done. and of any consequence which has ensued such offence may be inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done or any such consequence ensued.
(6) It was argued that the consequence of consuming liquor was the intoxicated state of the accused to such an extent that he was not able to take care of himself and therefore the accused having been found in such a state in a public place i.e. at the scene of the offence would give jurisdiction to the learned trial Magistrate illustration (a) to section 179 however shows that this contention is untenable. That illustration states:
A is wounded within the local limits of the jurisdiction of Court X and dies within the local limits of the jurisdiction of Court Z. The offence of culpable homicide of A may be inquired into or tried by X or Z.
(7) It is clear from this illustration that this offence could have been tried either in X Court or Court because the ingredients of the offence of culpable homicide are the causing of injuries and the resultant death. It is clear that if either of the ingredients has occurred at the place X or Z obviously both the Courts would have jurisdiction to try the offence of culpable homicide. Thus where the act in question and its consequence are the ingredients of an offence both of them confer jurisdiction. Therefore if A is injured within one jurisdiction and dies in the local limits of another jurisdiction the ingredients of culpable homicide being both causing injuries and death a Magistrate of either of the two local areas would have jurisdiction. Section 179 applies to those offences which by their very definition consist of an act and its consequence. The consequence must from part of the offence. The act and consequence together must constitute the offence. If therefore the offence is complete in itself by reason of the act having been done and the consequence is a mere result of it not essential for the completion of the offence then section 179 cannot apply. The learned Assistant Government Pleader then sought to rely upon section 180 of the code. That section provides that:
When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence a charge of the first mentioned offence may be inquired into or tried by a Court within the local limits of whose jurisdiction either Act was done.
(8) Illustrations (a) (b) and (c) to the section furnish examples of an act which is an offence by reason of its relation to any other act which is also an offence. Abetment for instance is an act which is by itself an offence by reason of its relation to an act which constitutes a particular offence. Similarly receiving or retaining stolen property is an offence by reason of its relation to the act of theft. Concealing a person with knowledge that he is a kidnapped person is an offence by reason of its relation to the act of kidnapping. Unless the offence of kidnapping has taken place a person concealing another person without knowledge that that person is kidnapped would not commit the offence. Therefore it is the relation of one act with the other that brings section 180 into operation and gives jurisdiction to the Courts in both the local areas where either of them has occurred. In our view section 180 on the facts of this case cannot have any application.
(9) Our attention was also drawn by the learned Assistant Government Pleader to a decision in - In re L. N. Mukherjee and others A. I. R. 1961 Mad. 126. A Division Bench of that High Court held in that case that criminal conspiracy was in a strict sense an offence by reason of its relation to any other act which is also an offence. Since the first mentioned offence in section 180 can refer to the charge of criminal conspiracy alone the Court which has jurisdiction to try the offence committed in pursuance of it can also try the offender or offenders upon the charge of conspiracy. Relying upon these observations the learned Assistant Government Pleader argued that since the Court of Sessions in Madras within whose jurisdiction the offence in pursuance of the conspiracy was committed could try both that offence as also the offence of conspiracy which had taken place in Calcutta the learned trial Magistrate in this case also could have tried the offence under section 66 (1) (b) of the Prohibition Act as he had the jurisdiction to try the offence under section 85 (1) of the Act. In our view the learned Assistant Government Pleader does not read the decision of the Madras High Court in the light in which it should be read. At page 128 of the report the learned Judges have approvingly cited the decision in Banwarilal v. Union of India A.I.R. 1959 Kerala 311 where it was observed that the offence of criminal conspiracy was very similar to the Offence of abetment for the purpose of section 180 of the Code of Criminal Procedure and illustration (a) to that section showed that the Court which has jurisdiction to try the further offence committed in pursuance of the conspiracy could also try the charge of criminal conspiracy itself. Thus it is clear that section 180 of the code was made applicable to the facts in the Madras case on the footing that criminal conspiracy was very similar to the offence of abetment to which illustration (a) of section 180 would apply. The decision in fact in that case would seem to support the reasons given by us above.
(10) Next it was argued that section 182 of the code in any event would apply to such a case as the one before us. That section deals with the place of inquiry or trial where the scene of the offence is uncertain. Reliance was placed on the first part of section 182 which provides that:
When it is uncertain in which of the several local areas an offence was committed. or where an offence is committed partly in one local area and partly in another or where an offence is a continuing one and continues to be committed in more local areas than one or where it consists of several acts done in different local areas it may be inquired into or tried by a Court having jurisdiction over any of such local areas
(11) The learned Assistant Government Pleader contended that since the prosecution was uncertain as to the place where the accused consumed liquor the learned trial Magistrate within whose jurisdiction he was found in an intoxicated condition would have jurisdiction under section 182. We confess we are not able to appreciate this contention. Section 182 contemplates four contingencies:
(1) where it is uncertain in which of the local areas an offence is committed; (2) where an offence is committed partly in one local area and partly in another; (3) where an offence is a continuing one and continues to be committed in more local areas than one and (4) where it consists of several acts done in different local areas. It is the first contingency that was relied upon by the learned Assistant government Pleader. It is clear that contingencies (2) (3) and (4) would not apply to the facts of this case for it is not the case of the prosecution that the offence was committed partly in one local area and partly in another nor is it the case of the prosecution that the offence was a continuing one or continued to be committed in more local areas than one or that it consisted of several acts done in different areas. As we have pointed out an offence under section 66 (1) (b) would be complete as soon as an accused consumes liquor. The offence has no relation tog the quantity consumed and therefore it cannot be said that the offence was committed partly in one local area and partly in another local area or the offence was a continuing one or continued to be committed in more local areas than one or that it consisted of several acts done in different areas. There can in fact be no uncertainty as contemplated by section 182 as to the place where the offence was committed. A Magistrate would have jurisdiction to try such an offence if the offence has been committed in a place within his jurisdiction. In our view therefore section 182 also cannot have any application
(12) The type of uncertainty contemplated under section 182 is well illustrated in the decision by the Supreme Court in State Of Madhya Pradesh v. Shri K.P Ghiara. I. R. 1957 S. C. 196. the accused there was employed as an agent in the company whose head office was situated at Nagpur where its books were maintained and the staff located. On January 12 1950 he was entrusted at Nagpur with a car belonging to the company for sale. The sale took place in Bombay and the proceeds were paid over to him at Bombay between the 13th and the 14th of January 1950. It was clear from the evidence that the accused reached Nagpur on the 17th of January 1950 but the sale proceeds were not credited in the company's books nor the money paid over to the company then or thereafter. A chargesheet filed against him under section 408 Penal Code at Nagpur did not either specifically or by necessary implication refer to the embezzlement in Bombay nor did it indicate that it took place in Nagpur. There was no evidence to show that prior to his leaving for Nagpur the accused had entertained or even been animated with an intention to misappropriate the sale proceeds and there was nothing to show that he had utilised the funds during the period of his stay at Bombay for four days for his own use. It was held that the venue of inquiry or trial of a case like the present must primarily be determined by the averments contained in the complaint or chargesheet and unless the facts there are positively disproved ordinarily the Court where the chargesheet or complaint was filed had to proceed with it except where action had to be taken under section 203 of the Code of Criminal Procedure. It was further held that in the circumstances it was uncertain whether the offence of embezzlement was committed at Bombay or Nagpur and therefore section 182 applied and the Court at Nagpur had jurisdiction to inquire into the offence.
(13) Now it was not the case of the prosecution that the accused committed offence of consuming liquor in either one local area or another local area where it was an offence to consume liquor. It was. therefore not the case of the prosecution that it was not certain in which of the two local areas the accused committed the offence under section 66 (1)(b). In order to attract the provisions of section 182 it would be necessary for the prosecution to aver that the offence was committed in one or the other local area of which it was uncertain The prosecution in fact was not in a position to say at all as to where the offence actually occurred whether in one local area or another local area. For the reasons aforesaid none of the three sections namely sections 179 180 and 182 of the Code of Criminal Procedure can possibly apply.
(14) The learned Assistant Government Pleader next contended that it was within the special knowledge of the accused as to where he consumed liquor and therefore under sec. 106 of the Evidence Act it would be for the accused to establish that he had consumed liquor at a place where it was not an offence to consume. it is a fundamental principle of our jurisprudence that in a criminal prosecution the onus of proof is upon the prosecution and there is no obligation upon the prisoner of Proving facts especially within his own knowledge of. Seneviratne v. R. 1936 (3) All Eng. Reports 36 where their Lordships of the Privy Council were dealing with section 108 of the Ceylon Evidence Ordinance (No. 14 of 1895) which contained the same provisions as are to be found in section 106 of our Evidence Act. The same question also arose in Shambu Nath Mehra v. State Of Ajmer. 1956 S.C.R. 199 where their Lordships of the Supreme Court laid down the same principle. namely that section 106 of the Evidence Act does not abrogate the well established rule of criminal law that except in very exceptional classes of cases the burden that lies on the prosecution to prove its case never shifts and section 106 is not intended to relieve the prosecution of that burden. They also observed that on the contrary that section seeks to meet certain exceptional cases where it is impossible or disproportionately difficult for the prosecution to establish facts which are especially within the knowledge of the accused and which can be proved by him without difficulty or inconvenience. But when knowledge of such facts is equally available to the prosecution if it chooses to exercise due diligence they cannot be said to be especially within the knowledge of the accused and the section cannot apply. At page 203 of the report. it is observed that the word especially means facts that are pre-eminently or exceptionally within the knowledge of the accused. Their Lordships have then observed that if the section were to he interpreted 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 whether he did or did not. Section 106 therefore cannot be used to undermine the well established rule of law that the burden is on the prosecution and that it never shifts. The burden to establish that the offence took place within the jurisdiction of the learned Magistrate was clearly upon the prosecution. It is nowhere stated by the prosecution that even with due diligence they could not find out the place where the offence occurred. As stated by the Supreme Court in Shambhu Nath Mehra's case the knowledge as to where the offence occurred would had been equally available to the prosecution if it had chosen to exercise due diligence and therefore such knowledge cannot be said to be especially within the knowledge of the accused. Consequently section 106 would not apply. Reliance was placed on the decision in Krishan Kumar v. Union of India. 1959 S. C.1390. That was a case under section 5 (1)(c) of the Prevention of Corruption Act 1947 It was there observed that it was not necessary or possible in every case to prove in what precise manner the accused had dealt with or appropriated the goods of his master. In such a case the question would be one of intention and not a matter of direct proof but giving a false account of what he had done with the goods received by him might be treated a strong circumstance against the accused. In the case of a servant charged with misappropriating the goods of his master the elements of criminal of offence of misappropriation will be established if the prosecution proves that the servant received the goods that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss then the facts being within the servants knowledge it is for him to explain the loss. For it is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course the prosecution has to establish a prima facie case in the first instance. It is not enough to establish facts which give rise to a suspicion and then by reason of section 106 of the Evidence Act to throw the onus on him to prove his innocence. We do not however think that these observations can possibly assist the learned Assistant Government Pleader. The decision does not lay down anything different from what was laid down in 1956 S. C. R. 199 and the decision of the Privy Council in 1936 (3) All. E. R. 36. The only thing that was held in Krishan Kumar V. Union of India A. I. R. 1959. S. C. 1390 was that if the prosecution were to establish all the necessary ingredients of the offence under section 5 (1)(c) of the Prevention of Corruption Act and if the accused wanted to establish that his failure to account for the goods entrusted to him was due to a circumstance which would exonerate him if such a circumstance were to be in the special knowledge of the accused section 106 of the Evidence Act would apply and it would be then upon him to establish that circumstance. The contention as to section 106 of the Evidence Act therefore must fail.
(15) Lastly it was argued that section 531 of the Code of Criminal Procedure would apply in such a case. It is however clear that section 531 would have no application and cannot avail the learned Assistant Government Pleader for that section provides that:
(16) No finding sentence or order of any criminal Court shall be set aside merely on the ground that the inquiry trial or other proceeding in the course of which it was arrived at or passed took place in a wrong sessions division district sub-division or other local area unless it appears that such error has in fact occasioned a failure of justice.
(17) There is nor finding sentence or order in this case which is to be set aside on the ground that the proceeding was tried in a wrong district sub-division or local area. In fact the learned trial Magistrate has come to the conclusion that by reason of the failure of the prosecution to establish that the offence in question took place within his jurisdiction he was not in a position to pass an order of conviction against the accused. It is clear the section 531 cannot have any application. ... ... ... ... ... ... ... ... ... Appeal allowed.
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