1 Chapter - I Introductory The 69th Report of the Fifth Law Commission India made a comprehensive revision of the Evidence Act. That Report was given on May 9, 1977. However, the Ministry of Law, Justice & Co. Affairs (Govt. of India) with the approval of the Minister, by its letter D.O.No. 3273/95-9, dated September 28, 1995 and subsequent letter D.O.No. 15/1/2001(ii)- Leg.III dated 19/22 June, 2001 and F.No. 7(11)/83-IC, dated 2.5.2002, requested the Law Commission of India, to review the Indian Evidence Act, 1872 once again, in as much as in the 25 years since the submission of the 69th Report. there have been further developments in the law of Evidence. A review of the law of evidence is, it is acknowledged by one and all, one of the most formidable and challenging tasks for any Commission. The Act was drafted in 1872 by one of the most eminent jurists of the nineteenth century Sir James Stephen. In fact, while dealing with sections 24 to 27 of the Act which are probably some of the crucial sections of the Act and which are applicable to criminal law, Sarkar (Law of Evidence, 15th Ed., 1999, page 534), stated, in his famous commentary that these sections could not perhaps be redrafted by a person who was not as eminent as Sir James Stephen. The following is the relevant quotation from Sarkar:- 1 2 “No section has perhaps raised so much controversy and doubt as sec. 27 and several judges have recommended the redrafting of sections 24 to 27. That formidable task is not likely to be undertaken in the near future as it would require a jurist of the eminence of Sir James Stephen.” That gives an idea of the magnitude of the task before us. Again, the 69th Report of 1977 was prepared by the Fifth Law Commission consisted of eminent jurists, namely Hon’ble Justice P.B. Gagendragadkar (former Chief Justice of India), Justice S.S. Dhawan, Sri P.K. Tripathi, Sri S.P. Sen Verma, Sri B.C. Mitra and Sri P.M. Bakshi. That Report runs into 907 pages in small print and is probably one of the most scholarly works ever produced by the Law Commission of India in the last five decades. The Report contains such abundant research material good enough for half a dozen post graduate students or Ph.D. scholars. The amount of industry put in by the Fifth Law Commission in preparing the 69th report by going into the very origin of every section and every principle of law, with references to comparative law in various countries, is indeed unsurpassable. Unfortunately, it was kept pending from 1977 to 1995. The task before the present Commission to review such a report is therefore extremely daunting. The present Law Commission has, therefore, taken up review of the Indian Evidence Act, 1872, in the light of the recommendations made in the 2 3 69th Report of the Law Commission. In the present Report, the Commission has also incidentally referred to the 11th Report, 14th Report, 48th Report, 60th Report, 88th Report, 91st Report, 93rd Report, 113th Report, 148th Report, the 152nd Report , 154th Report and the 172nd Report, 177th Report, 179th Report, 180th Report of the Law Commission. The Commission has also kept in mind the amendments made recently by I.T. Act, 2002, Evidence (Amendment) Act, 2003 (Act 4 of 2003), and Freedom of Information Act, 2002 (Act 5 of 2003). We have taken up the review of the Evidence Act, 1872 in earnest and reviewed the development of the law in our country and abroad after 1977 and considered the judgments of our Supreme Court and the High Courts between 1977 and 2003. We have also referred to the views of leading authors on the subject in UK and USA. The recommendations in the 69th Report can be categorized in five groups, as follows:- (1) Provisions that were not proposed to be amended; (2) Provisions of the Act that were proposed to be partially amended; (3) Provisions that were proposed to be substituted in their entirety; (4) Provision that were proposed to be deleted; and 3 4 (5) Provision that were proposed to be inserted. We have gone into each of the recommendations made in the 69th Report. We have, in our turn, examined the provisions of the Act afresh in the light of subsequent developments in the law in our country and abroad and, also keeping in mind, the present scenario in the country, both in regard to criminal and civil litigation. While we have not accepted some of the amendments proposed in the said 69th Report we have accepted some others with or without modifications. We have proposed certain amendments to some of the provisions. We have also recommended insertion of certain new provisions while not accepting some of the recommendations in the 69th Report for insertion of new provisions. The initial draft of the Report was reviewed by Sri Vepa P. Sarathi, former Member of the Law Commission and author and a leading authority on Law of Evidence and several of his suggestions have been accepted though a few of them have not been accepted. We are grateful to him for his suggestions. A summary of the recommendations made in this Report is enclosed with the Report. These recommendations would, it is hoped, be of importance for the administration of civil and criminal justice in our country. The recommendations made in the 69th Report would have served the Courts well if only they had been implemented soon after the Report was given. The Law Commission hopes that at least the recommendations in the present Report on such a vital subject, which is the life-blood of our judicial administration, will be taken up and implemented at an early date. *** 4 5 CHAPTER II REVIEW OF THE PROVISIONS OF THE INDIAN EVIDENCE ACT,1872 Section 1: Section 1 of the Indian Evidence Act, 1872 bears the heading ‘Short title, extent and commencement’. It refers to the extent of applicability of the Act to ‘judicial proceedings’. The section, as amended earlier, reads as follows: “Sec. 1: Short title, extent and commencement.- This Act may be called the Indian Evidence Act, 1872. It extends to the whole of India (except the State of Jammu and Kashmir) and applies to all judicial proceedings in or before any Court, including Courts-martial, other than Courts-martial convened under the Army Act (44 & 45 Vict.,c.58), the Naval Discipline Act (29 & 30 Vict., c.109), or the Indian Navy (Discipline) Act, 1934 (XXXIV of 1934), or the Air Force Act, (7 Geo. 5, c.51) but not to affidavits presented to any Court or Officer, nor to proceedings before an arbitrator; And it shall come into force on the first day of September, 1872”. 5 6 This section requires a formal amendment in as much as the Army Act, 1881 was repealed in its application to India by the British Statutes (Application to India) Repealing Act, 1960 (Act 57 of 1960); similarly, the Indian Navy (Discipline) Act, 1934, when it was adapted by the Adaptation of Laws Order, 1950, ceased to refer to the (English) Naval Discipline Acts. The current legislation occupying the field is the Navy Act, 1957 which, in sec. 186 thereof, repealed the earlier law. The Air Force Act, 1917 has also been repealed in its application to India, by the British Statutes (Application to India) Repealing Act, 1960. It may further be added that sec. 133 of the Army Act 1950, sec. 132 of the Air Force Act, 1950 and sec. 130 of the Navy Act, 1957 apply the provisions of the Evidence Act, 1872 subject to the provisions of these Acts. We agree with the 69th Report of the Law Commission in this behalf and, therefore, recommend that in section 1 of the Act, the following words be deleted: “other than Courts-martial convened under the Army Act (44 & 45 Vict., c. 58), the Naval Discipline Act (29 & 30 Vict., c. 109) or the Indian Navy (Discipline) Act, 1934 or the Air Force Act (7-Geo. 5, c 51).” Section 3: Interpretation clause. This clause ‘defines’ several words which occur in the Act, namely, ‘Court, ‘Fact’, ‘Relevant’, ‘Facts in issue’, ‘Document’, ‘Evidence’, 6 7 ‘Proved’, ‘Disproved’, ‘Not proved’, and ‘India’. Certain other words as defined by the Information Technology Act, 2000 (Act 21 of 2000) are to be read into sec. 3 of the Evidence Act, 1872. We shall now take up each of these words which are defined in sec. 3. ‘Court’ : ‘Court’ has been defined in sec. 3 as “including all Judges and Magistrates, and all persons, except arbitrators, legally authorized to take evidence.” The word ‘persons’ here has to be read in the immediate context of ‘Judges’ and ‘Magistrates’ and will take colour from those words. Obviously, when the definition refers to persons “legally authorized to take evidence”, this has to be understood that unless a person is taking ‘evidence’, there is no scope for the Act to apply but that does not literally mean that every person, or authority, such as a quasi-judicial tribunal or a domestic tribunal receiving evidence is a Court. This is clear from the case law to which we shall now refer. The definition of ‘Court’ in the Act is an inclusive definition and is not exhaustive, Brajanandan Sinha vs. Jyoti Narain (AIR 1956 SC 66). But the Supreme Court has held that the Evidence Act does not apply to income tax authority (C.I.T vs. East Court Commercial Co. Ltd) (AIR 1967 SC 768) nor to the non-judicial proceedings under the Mysore (Personal and Miscellaneous) Inams (Abolition Act), 1955 (State of Mysore vs. P.T. Muniswamy Gowda)(AIR 1971 SC 1363), nor to proceedings under the 7 8 Public Servants (Inquiries) Act, 1850, (Brajnandan Sinha vs Jyoti Narain) (AIR 1956 SC 66), nor to a nominee of the Registrar under the Maharashtra Co-operative Societies Act, 1961 (Ramrao vs. Narayan) (AIR 1969 SC 724), nor to inquiries conducted by tribunals even though they may be quasi- judicial in character (Union of India vs. T.R. Verma) (AIR 1957 SC 882) (But they may have to observe principles of natural justice). The definition does not apply to domestic tribunals (Central Bank of India Ltd. vs. Prakash Chand Jain) AIR 1969 SC 983; nor to departmental proceedings (K.L. Shinde vs. State of Mysore, AIR 1976 SC 1080) (State vs. Shivabasappa, AIR 1963 SC 375). The Supreme Court, in Brajnandan Sinha vs. Jyoti Narain (AIR 1956 SC 66) while deciding whether inquiry under the Public Servants (Inquiries) Act, 1850 is in the nature of an inquiry before a ‘Court’ went into a detailed examination of the meaning of the word ‘Court’ and pointed out that such a body or forum must have power to give a decision or a definitive judgment which has finality and authoritativeness which are essential tests of a judicial pronouncement, if it has to be treated as a ‘Court’. But, in its 69th Report, the Law Commission, after a review of relevant authorities, felt that a specific definition of ‘Court’ is necessary to remove uncertainty and suggested that the following definition of ‘Court’ should be substituted: 8 9 “Court means, a civil, criminal or revenue court and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by or under that Act to be a court for the purposes of this Act, but does not include an arbitrator.” We shall examine this suggestion in some detail. The position so far as Civil Courts to which the Code of Civil Procedure, 1908 applies needs no clarification. So far as the Code of Criminal Procedure, 1973 is concerned, sec. 6 thereof refers to the classes of Criminal Courts, (besides the High Courts and Courts constituted under any law other than the Code) – namely – Courts of Sessions, Judicial Magistrates, and Executive Magistrate. However, sec. 195 of the Cr.P.C. which deals with “Prosecution for contempt of lawful authority of public servant, for offences against public justice and for offences relating to documents given in evidence”, is concerned, it contains a special definition for the purposes of sec. 195 which is in the same form as recommended in the 69th Report for inclusion in the Evidence Act. The question is whether this recommendation requires any modification? So far as revenue courts are concerned, there are a vast number of revenue courts in the country. They are mostly governed by local laws made by State Legislatures. In some of these laws, it is customary to confer all the powers of a Civil Court while in some others, limited powers like 9 10 summoning witnesses etc. are conferred. Some of the courts conduct summary inquiries. The question therefore is whether all the revenue courts should be governed by the provisions of the Evidence Act, 1872 as recommended in the 69th Report? The recommendation in the 69th Report might include even those revenue courts which have limited powers or have a summary procedure to follow. That would create serious problems. Where the local legislature requires a speedy decision by following a summary procedure, the revenue court will be confronted with a duty to follow all the niceties of the Evidence Act. We, therefore, feel that it is not necessary to include all revenue courts within the definition of ‘Court’ for purposes of the Evidence Act. The question whether the provisions of the Evidence Act apply or not, would depend upon the nature of the tribunal, the nature of inquiry contemplated and other special characteristics of each such ‘revenue court’ and is a matter for the appropriate Legislature or rule making authority dealing with revenue courts. We are, therefore, not in favour of applying the Evidence Act to all ‘revenue courts’. We therefore differ from the recommendation in the 69th Report in this respect. We then come to the recommendation in the 69th Report regarding applicability of the Act to tribunals. The recommendation says that if the special statute governing the tribunal requires that the tribunal be treated as a ‘court’ for purposes of the Evidence Act, then the Act will apply. But, in our view, this is so obvious a position that there is no need to say so by way 10