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The Law of Evidence (PB), 27th ed Ratanlal & Dhirajlal: Law of Evidence (PB), 27th ed / THE LAW OF EVIDENCE Currency Date: 22 April 2020 © 2020 LexisNexis THE LAW OF EVIDENCE THE INDIAN EVIDENCE ACT (Act I of 1872)1 [Received the Governor General's assent on March 15, 1872] Preamble.—WHEREAS it is expedient to consolidate, define and amend the law of Evidence; it is hereby enacted as follows:— COMMENT The object of the preamble of an Act is to indicate what, in general terms, was the object of the Legislature in passing the Act. The preamble here shows that the Indian Evidence Act is not merely a fragmentary enactment, but a consolidatory one. The Act reduces the English law of evidence to the form of express propositions arranged in their natural order with some modifications rendered necessary by the peculiar circumstances of India. It is in the main, drawn on the lines of the English law of evidence. The word "evidence" is derived from the Latin word evidens or evidere, which means "to show clearly; to make clear to the sight; to discover clearly; to make plainly certain; to ascertain; to prove". Before the passing of the Indian Evidence Act, the principles of English law of evidence were followed by the courts in India in presidency-towns. In the mofussil, Mohammedan law of evidence was followed for some time by British Courts, but subsequently various regulations, dealing with principles of evidence, were passed for the guidance of mofussil courts. Act II of 1855 partially codified the law of evidence. But it did not affect the practice in vogue in mofussil courts. In 1868, Mr Maine (afterwards Sir Henry Sumner) prepared a Draft Bill of the Law of Evidence, but it was abandoned as it was not suited to the country. In 1871, Mr Stephen (afterwards Sir James Fitz-James) prepared a new draft which was passed as Act I of 1872. One great object of the Evidence Act is to prevent laxity in the admissibility of evidence, and to introduce a more correct and uniform rule of practice than was previously in vogue. The Act is not intended to do more than prescribe rules for the admissibility or otherwise of evidence on the issues as to which the courts have to record findings. The main principles which underlie the law of evidence are— (1) evidence must be confined to the matter in issue; (2) hearsay evidence must not be admitted; and (3) best evidence must be given in all cases. The Indian Evidence Act is not exhaustive of the rules of evidence.2 For the interpretation of the sections of the Act the court can look to the relevant English common law,3 but the law of evidence which is a complete Code does not permit the importation of any principle of English Common Law relating to evidence in criminal cases to the contrary.4 Once a statute is passed, which purports to contain the whole law of evidence applicable in India, it is imperative. It is not open to any Judge to exercise a dispensing power, and admit evidence not admissible by the statute, because it appears to him that the irregular evidence would throw light upon the issue. The principles of exclusion of evidence adopted by the Act must be applied strictly and cannot be relaxed at the discretion of the court.5 The Evidence Act has no application to enquiries by Tribunals, even though they may be judicial in character. And the law only requires that rules of natural justice should be observed in the conduct of enquiries and if they do so the decisions of Tribunals are not liable to be impeached.6 The law of evidence is an adjective law, and, as such, has retrospective effect.7 1 For Statement of Objects and Reason, see the Gazette of India, 1868, p 1574. 1 2 Re Rudolf Stallmann, (1911) 39 Cal 164; King-Emperor v Tun Hlaing, (1923) 1 Ran 759 FB; Re Annavi Muthiriyan, (1915) 39 Mad 449. 3 State of Punjab v SS Singh, AIR 1961 SC 493 : (1961) 2 SCR 371. 4 HH Advani v State of Maharashtra, AIR 1971 SC 44 : 73 Bom LR 112 : 1971 Cr LJ 5. 5 Sris Chandra Nandy v Rakhalananda, (1940) 43 Bom LR 794 : 68 IA 34 : (1941) 1 Cal 468; Emperor v Parbhoo, (1941) All 843 (FB). 6 UOI v TR Varma, (1958) SCJ 142. 7 Data Xiva v State, AIR 1967 Goa 4. THE LAW OF EVIDENCE PART I RELEVANCY OF FACTS CHAPTER I PRELIMINARY [s 1] Short title, extent and commencement.— This Act may be called the Indian Evidence Act, 1872. It extends to the whole of India[s 1.1] 1[except the State of Jammu and Kashmir2] and applies to all judicial proceedings[s 1.2] in or before any Court,[s 1.3] including Courts martial, 3[other than Courts-martial convened under the Army Act], 4[the Naval Discipline Act] 5[***] or the Indian Navy (Discipline) Act, 1934, 6[or the Air Force Act] but not to affidavits[s 1.4] presented to any Court or officer, nor to proceedings before an arbitrator;[s 1.5] And it shall come into force on the first day of September, 1872. COMMENT The Indian Evidence Act applies to all judicial proceedings before (a) any court, or (b) a court-martial (other than the courts-martial held under the specified Acts). It does not apply to (a) affidavits, and (b) proceedings before arbitrators. "The law of evidence is the lex fori which governs the Courts. Whether a witness is competent or not; whether a certain matter requires to be proved by writing or not; whether certain evidence proves a certain fact or not; that is to be determined by the law of the country where the question arises, where the remedy is sought to be enforced, and where the Court sits to enforce it."7 The law of evidence is a part of the law of procedure. [s 1.1] "India".— "India" means the territory of India excluding the State of Jammu and Kashmir.8 [s 1.2] "Judicial proceedings".— An inquiry is judicial if the object of it is to determine a jural relation between one person and another, or a group of persons; or between him and the community generally; but, even a Judge, acting without such an object in view, is not acting judicially.9 An enquiry in which evidence is legally taken is included in the term judicial proceeding.10 An inquiry about matters of fact, where there is no discretion to be exercised and no judgment to be formed but something is to be done in a certain event as a duty, is not a judicial but an administrative inquiry. Similarly, proceedings before a Magistrate not authorised to conduct any inquiry,11 or before a Collector under the Land Acquisition Act12 or an inquest proceeding before the Coroner under the Coroners Act, 1871,13 are not judicial proceedings. [s 1.3] "Court".— This word includes Judges and Magistrates and all persons, except arbitrators, legally authorised to take evidence (Section 3). A family court is a court within the meaning of this expression.14 The court said:15 "In order to constitute a court, a State's sovereign judicial powers must be conferred on it by a statute for deciding a dispute in the judicial manner so as to decide the rights of the parties in a definitive judgment. To decide a dispute in a judicial manner and to declare the rights of the parties in a definitive judgment is essential sine qua non of a court. The decision in a judicial manner contemplates that parties are entitled as of right (i) to be heard in support of their claim; (ii) and to adduce evidence in proof of it, and (iii) to decide the matter on consideration of evidence in accordance with the law." The court of the Lokayukta is a civil court and, therefore, the protection of section 132 is available to a witness before it who has been compelled to answer a question.16 [s 1.4] "Affidavits".— Affidavits are confined to such facts as the deponent is able of his own knowledge to prove. Matters to which affidavits are confined are regulated by O XIX, rules 1, 2 and 3, etc. of the Code of Civil Procedure, and by section 297 etc. of the Code of Criminal Procedure, 1973. An affidavit filed by a party suo motu and not under directions from the court could not be termed as evidence. As action under the Penal Code could not be taken against the deponent.17 A declaration in the shape of an affidavit cannot be received as evidence of the facts stated in it.18 An affidavit cannot be used as evidence unless the law specifically permits certain matters to be proved by affidavit. The reason is that the deponent of an affidavit is not available to be cross-examined in respect of his declarations in the affidavit. 19 Where the party denied execution of documents alleged to have been stated in the affidavit, the deponent can be cross-examined only if the party seeking cross- examination shows reasons and prejudice if such relief is not granted. An application for cross-examination which seemed to the court to have been filed only to delay proceedings was held to be something which ought to be rejected.20 [s 1.5] "Arbitrator".— The provisions of the Evidence Act do not apply to proceedings before an arbitrator. Arbitrators are bound to conform to the rules of natural justice. They are unfettered by technical rules of evidence.21 1 Subs. by Act 3 of 1951, section 3 and Schedule, for "except Part B States". 2 The Act now extends to the Union Territories of (1) Dadra and Nagar Haveli (vide Regulation 6 of 1963); (2) Goa, Daman and Diu (vide Regulation 11 of 1963); (3) Pondicherry (vide Regulation 7 of 1963) and (4) Lakshdweep (vide Regulation 8 of 1965). 3 Ins. by Act 18 of 1919, section 2 and Sch. I. See section 127 of the Army Act (44 and 45 Vict., c. 58). 4 Ins. by Act 35 of 1934, section 2 and Schedule 5 The words "that Act as modified by" omitted by the A.O. 1950. 6 Ins. by Act 10 of 1927, section 2 and Sch. I. 7 Bain v Whitehaven and Furness Junction Railway Co, (1850) 3 HLC 1, 19. 8 Act III of 1951, section 3. 9 Queen-Empress v Tulja, (1887) 12 Bom 36, 42. Section 3(4) of the Code of Criminal Procedure, 1973. 10 Ibid 11 Queen-Empress v Bharma, (1886) 11 Bom 702 FB. 12 Ezra v The Secretary of State, (1902) 30 Cal 36 . 13 Tanajirao v HJ Chinoy, (1969) 71 Bom LR 732 . 14 Munna Lal v State of UP, AIR 1991 All 189 : 1991 Cr LJ 1838 . 15 Ibid, at p 192. 16 Rajendra Manubhai Patel v State of Gujarat, AIR 1992 Guj 10 : (1992) 1 GLR 223 . 17 Delhi Lotteries v Rajesh Aggarwal, AIR 1998 Del 332 : 1999 97 Comp Cas 758 Delhi : 69 (1997) DLT 543 : 1997 (43) DRJ 448 . 18 Re Iswar Chunder Guho, (1887) 14 Cal 653 . 19 Nirmala v Hari Singh, AIR 2001 HP. 20 Veer Singh Kothari v State Bank of India, AIR 2009 Ori 29 (DB). 21 Suppu v Govindacharyar, (1887) 11 Mad 85, 87; Municipal Corporation of Delhi v Jagan Nath Ashok Kumar, AIR 1987 SC 2316 : (1987) 4 SCC 497 . THE LAW OF EVIDENCE PART I RELEVANCY OF FACTS CHAPTER I PRELIMINARY [s 2] Repeal of enactments.— [Rep. by the Repealing Act, 1938 (1 of 1938), sec. 2 and Sch.] THE LAW OF EVIDENCE PART I RELEVANCY OF FACTS CHAPTER I PRELIMINARY [s 3] Interpretation clause.— In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:— "Court".— "Court" includes all Judges and Magistrates, and all persons, except arbitrators, legally authorized to take evidence. COMMENT [s 3.1] Court.— This definition is not meant to be exhaustive.22 The word "Court" means not only the Judge in a trial by a Judge with a jury, but includes both Judge and jury.23 A Magistrate holding a preliminary inquiry under section 164 of the Code of Criminal Procedure in a police investigation does not exercise the functions of a Court;24 but a Magistrate committing a case to the Court of Session is a "Court".25 An Industrial Tribunal set up under section 7 of the Industrial Disputes Act is a "Court".26 Authorities under the MP Madhyastham Adhiniyam, 1983 have been held to be a court.27 22 MV Rajwade v Dr SM Hasan, (1954) Nag 1. 23 Empress v Ashootosh Chuckerbutty, (1878) 4 Cal 483 FB; Jury stands abolished. 24 Queen-Empress v Bharma, (1886) 11 Bom 702 FB. 25 Atchayya v Gangayya, (1891) 15 Mad 138 FB. 26 Raghu Singh v Burrakur Coal Co Ltd, AIR 1966 Cal 504 . 27 State of MP v Anshuman Shukla, AIR 2008 SC 2454 : (2008) 7 SCC 487 . THE LAW OF EVIDENCE PART I RELEVANCY OF FACTS CHAPTER I PRELIMINARY "Fact."— "Fact" means and includes— (1) any thing, state of things, or relation of things, capable of being perceived by the senses; (2) any mental condition of which any person is conscious. ILLUSTRATIONS (a) That there are certain objects arranged in a certain order in a certain place, is a fact. (b) That a man heard or saw something, is a fact. (c) That a man said certain words, is a fact. (d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact. (e) That a man has a certain reputation, is a fact. COMMENT [s 3.2] Fact.— Clause (1) refers to external facts which can be perceived by the five senses. See illustrations (a), (b) and (c). Clause (2) refers to internal facts which are the subject of consciousness. Thus, facts are either physical or psychological. See illustrations (d) and (e). A misrepresentation as to the intention of a person is a misrepresentation of a "fact".28 See illustration (d). The state of a man's mind is as much a fact as the state of his digestion.29 Facts and events which have neither occurred in the past, nor are occurring in presenti but are likely to occur in future do not fall within the definition of a fact.30 "Matter of fact" is anything which is the subject of testimony. "Matter of law" is the general law of the land, of which the courts will take judicial cognizance. Denning LJ stated the distinction between "Law" and "Fact" in the following words:31 "Primary facts are facts which are observed by witnesses and proved by oral testimony or facts proved by the production of a thing itself, such as original documents. Their determination is essentially a question of fact for the tribunal of fact, and the only question of law that can arise on them is whether there was evidence to support the finding. The conclusions from primary facts are, however, inference deducted by a process of reasoning from them. If, and insofar as those conclusions can as well be drawn by a layman (properly instructed on the law) as by a lawyer, they are conclusions of fact for the tribunal of fact; and the only questions of law that can arise on them are whether there was a proper direction in point of law and whether the conclusion is one that could reasonably be drawn from the primary facts. If, and insofar as the correct conclusions to be drawn from the primary facts requires, for its correctness, determination by a trained lawyer, the conclusion is a conclusion of law." 28 Re Jaladu, (1911) 36 Mad 453; The Crown v Mussammat Soma, (1916) PR No. 17 of 1916 (Cr); Saleh v Mussammat Bakhtawar, (1916) PR No. 3 of 1917 (Civil). 29 Per Bowen, LJ, in Edgington v Fitzmaurice, (1885) 29 Ch D 459 , 483. 30 Dueful Laboratory v State, 1998 Cr LJ 4534 (Raj) : 1999 (1) WLC 498 . 31 British Launderers' Assn. v Hendon Rating Authority, (1949) 1 KB 462 at pp 471-472.
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