Law of Evidence

By Nizam Azeez Sait,

MODULE No. 1

MEANING OF “EVIDENCE”, HISTORICAL DEVELOPMENT OF LAW OF EVIDENCE IN INDIA, GENERAL SCHEME OF THE BHARATIYA SAKSHYA ADHINIYAM 2023, AND ITS APPLICABILITY.

Introduction

This is the 1st Module of the subject ‘Law of Evidence’, which is intended to provide a general introduction of the subject.

Here, in the 1st Module of the ‘Law of Evidence’ we shall focus on giving you an idea as to what exactly is the meaning of ‘Evidence’ in the legal parlance/context as well as a general introduction/outline of the Subject ‘Law of Evidence’.

We shall also take you through the brief history of the development of the Law of Evidence in India leading to the enactment of the Indian Evidence Act 1872 and now, the Bharatiya Sakshya Adhiniyam 2023.

Here we will also discuss the general scheme of the Bharatiya Sakshya Adhiniyam 2023 and the proceedings to which this Act/Adhiniyam applies.

MODULE INDEX

  1. Meaning of ‘EVIDENCE’
  1. Historical Development of the Law of Evidence in India
  1. Enactment of The Indian Evidence Act 1872
  1. The Indian Evidence Act – A Classic Legislation
  1. Enactment of the Bhartiya Sakshya Adhiniyam 2023
  1. Changes in the Bhartiya Sakshya Adhiniyam at A Glance
  1. The Bhartiya Sakshya Adhiniyam 2023 Not to Have Retrospective Effect
  1. The Indian Evidence Act / Bharatiya Sakshya Adhiniyam is exhaustive with respect to the provisions therein
  1. The Basic Principles Governing the Bhartiya Sakshya Adhiniyam
  1. The general scheme and an overview of the Bhartiya Sakshya Adhiniyam
  1. Applicability of the Bhartiya Sakshya Adhiniyam
  1. Whether Bhartiya Sakshya Adhiniyam Applies to Special Statutory Tribunals
  2. Whether Bhartiya Sakshya Adhiniyam Applies to Domestic Tribunals
  1. Whether Bhartiya Sakshya Adhiniyam Applies to Proceedings before Arbitrators
  1. Exclusion of Affidavits – Explained

1. Meaning of ‘EVIDENCE’

Now, let us move on and see what exactly, the meaning of ‘Evidence’ is:

Etymologically, the word “evidence” is derived from the Latin expression “Evidens or evidera” which signifies the state of being evident or plain or apparent.

Various legal luminaries have attempted to define the term ‘evidence’. Let us see some of such definitions to get an insight into the word’s practical ambit.

Bentham aptly defines “evidence” as “any matter of fact, the effect, tendency or design of which, when presented to the mind, is to produce in the mind a persuasion concerning the existence of some other matter of fact, either affirmative or dis-affirmative of its existence”.

Blackstone states that, “the evidence mostly signifies anything which demonstrates, increases the transparency and ascertains the truth of the facts or points in issue either on one side or the other side”.

The standard treatise ‘Phipson on Evidence’, defines evidence as the testimony whether oral or documentary or real, which may be legally received in order to prove or disprove some fact in issue.

“Taylor’s Evidence” states that “Evidence means and includes all facts except arguments, which tend to prove or disprove any matter, which is under inquiry in judicial proceedings.”

It could be said that, Proof is the effect or result of evidence, while evidence is the medium of proof.

According to Stephen’s Digest of the Law of Evidence, the word ‘evidence’ is used with different connotations:

  1. It sometimes means the word uttered in and things exhibited by witnesses before the court of justice;
  2. At other times it means the facts proved to exist by those words or things and regarded as the ground work of inference as to other facts in issue not so proved.
  3. It is sometimes used as meaning to assert that a particular fact is relevant to the matter in inquiry.

Clause 2(e) of the Bharatiya Sakshya Adhiniyam 2023 states that “Evidence” means and includes—

(i) all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence;

(ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence;

In the Indian Evidence Act ‘Evidence’ is defined in Section 2. In the new Act the words ‘including statements given electronically’ is added and the definition is made broader. Now evidence given through video conferencing is explicitly covered by the definition.

As such, the Law of evidence is an important adjective law which regulates the process of adducing evidence before a court of law, and the appreciation/evaluation of the same.

We could say that the purpose of “Evidence” is to establish the truth or falsehood of a disputed fact.

We shall in subsequent modules deal with different types of evidence and distinctions thereof such as:

  1. Oral Evidence and Documentary Evidence
  2. Documentary Evidence, Real/Material Evidence and Electronic Evidence
  3. Direct Evidence and Hearsay Evidence
  4. Direct Evidence and Circumstantial Evidence
  5. Substantive Evidence, Substantial Evidence and Corroborative Evidence, etc etc.

2. Historical Development of the Law of Evidence in India

In earlier times, the rules of Evidence in India were based on the traditional legal systems of different social groups and communities and were different for, different persons depending on his or her caste, religion, faith and social position. The Indian Evidence Act 1972 introduced a standard set of comprehensive law applicable to all uniformly.

Shri Vepa P. Sarathi in his scholarly and research full Article titled “Historical Background of the Indian Evidence Act, 1872”,     (published in the Journal of the Indian Law Institute,1972  – https://www.jstor.org/stable/43950171 ),  traces the history and the main facets of the Law of Evidence in the pre Indian Evidence Act period. In this article the illustrious  author gives an account of the Hindu system of the law of evidence, the Muslim system, and the British System as prevailed during various periods in India.

Shri Vepa P. Sarathi observes in his article as under:

“While the Hindu system seems to be more elaborate, the Muslim system was free from the superstitious trial by ordeal. But what should strike the reader (it has struck me as a pleasant surprise) is the extreme modern flavour which both the earlier systems, namely, the Hindu and the Muslim, had.

Shri Vepa P. Sarathi systematically and extensively deals with the various aspects of the law of evidence of Hindu era and Muslim era and demonstrates the striking modern flavour those systems had. This article would be a profitable read for Law of Evidence enthusiasts.

3. Enactment of The Indian Evidence Act 1872

In 1855, Act 2 of 1855, an Act for the improvement of the law of evidence, was passed, by the rulers of the British India. It applied to all courts in British India.

Matters not provided for by this Act were to be decided according to Islamic law, so that, the uncertain mixture of English and Muslim laws continued to prevail outside the Presidency towns, leaving several matters as nebulous as before.

After the British Crown took over the direct government of India as

a result of the Mutiny three more Acts relating to evidence were passed before the enactment of the present Act. They are Act 8 of 1859, Act 25 of 1861 and Act 15 of 1869.

All these enactments were inadequate. In this state of affairs, the Third Law Commission of India prepared a draft of an Evidence Act and it was introduced by the law member Sir Henry Maine, but it was rejected as unsuited to Indian conditions.”

Later, the task of codification of the law of Evidence fell on the Shoulders of the legendary genius Sir James Fitz James Stephen. He drafted the bill and the law was enacted after due deliberations and extensive consultations.

The Indian Evidence Act 1872, was enacted on March 15th, 1872 and came into force on September 1st 1972.

The Bill/Act was drafted under the very able leadership of the illustrious jurist Sir James (Fitz) Stephen. In fact, what was done by the enactment of the Act is that, the principles of English law of evidence then in existence were reduced to express formulations to suit the Indian situation.

4. The Indian Evidence Act – A Classic Legislation

The Indian Evidence Act is a Classic Legislation. The Evidence Act has stood the test of time and remained for long as a classic legislation (Locus classicus). Only a few amendments were required to be made in the original Act/Legislation, which too was in the wake of raise in the crimes involving demand for dowry and cruelty to woman (such as the Insertion of Sections 113(A), 113(B) and Amendments brought about by Criminal Law Amendment Act 2013. Certain amendments were also brought in to provide for the laws relating to transactions involving information technology and the new era crimes related thereto (such as the insertion of 22A, 65A, 65 B, 67 A, 73 A, 81 A, 85A, 85 B, 85 C, 88 A, 90 A, and necessary amendments to Ss 3, 17, 34, 35, 39……..etc).

Otherwise, the basic concepts unambiguously enshrined in the Act relating to Relevancy, Admissibility, Exclusion of Hearsay evidence, Burden of Proof, Standards of Proof, Judicial discretion in Appreciation of Evidence, Rules of Best Evidence, Presumptions, Rules of Prudence as to the requirement of Corroborations, etc remained fittingly as significant and relevant as it was a century and half before.

The vast case laws and authoritative treaties/commentaries on the subject only strengthened the basic concepts enshrined in the Act and further illuminated/elucidated the same without upsetting the basic fabric of the Law.

5. Enactment of The Bhartiya Sakshya Adhiniyam 2023

The Bharatiya Sakshya Adhiniyam, 2023, got passed in the Lok Sabha and Rajya Sabha on 20.12.2023 and 21.12.2023 respectively, and it got the assent of the President on 25.12.2023.

As per its Clause 1 (3), the new Act – The Bharatiya Sakshya Adhiniyam, 2023, shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

On 24th February 2024 the Government through Ministry of Home Affairs issued notification specifying 1st day of July 2024 as the appointed date of commencement of the Bharatiya Sakshya Adhiniyam, 2023

From the appointed date ie 1st of July 2024,  The Bharatiya Sakshya Adhiniyam, 2023 will replace the long-standing Indian Evidence Act 1972.

The Indian Penal Code (IPC), 1860 and the Code of Criminal Procedure (CrPC), 1973 are also getting replaced by Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Nagarik Suraksha Sanhita, 2023 respectively.

With respect to the Bharatiya Sakshya Adhiniyam 2023, substance wise there aren’t much changes from the Indian Evidence Act 1972. All the time-tested basic concepts of our law of evidence remain the same and are retained.  The sections in the Indian Evidence Act have been re-arranged with a few changes here and there and a few provisions have been omitted.

Due to this total overhauling, now the legal practitioners and students would be put to the daunting task of relearning the numbers of the sections in tune with the new Act. This task of relearning the provisions cannot now be avoided by lawyers and academicians, as this new law is certain to come into force. The inconvenience will be never ending and will be for all time to come as for the case law searches one would always have to go back to the provisions/sections of the Indian Evidence Act 1872. Now there is no other go for a lawyer but to better equip oneself, to take up the challenge of coping up with the change. Hopefully, this material will be of help for Lawyer in such exercise.

Most of the Judgments of the Supreme Court and the High Courts based on the Indian Evidence Act would retain its precedential authority as there are no substantial changes in content in the new Act. Throughout this study material important case laws are highlighted in appropriate places and the basic concepts are presented through relevant and important extracts from judgement of the Supreme Court and High Courts. Wherever needed the Section numbers of the Indian Evidence Act 1872 is given along with that of the Bharatiya Sakshya Adhiniyam 2023.

6. Changes In the new the Bharatiya Sakshya Adhiniyam 2023 at A Glance

  1. In the Indian Evidence Act ‘Evidence’ is defined in Section 3. In the new the Bharatiya Sakshya Adhiniyam 2023, ‘Evidence’ is defined in Section 2(e). the words ‘including statements given electronically’ is added and the definition is made broader. Now evidence given through video conferencing is explicitly covered by the definition.
  1. Definitions of ‘May Presume’ ‘Shall Presume’ and ‘Conclusive Proof’ are brought into the definition clause in section 2 of the Bharatiya Sakshya Adhiniyam instead of dealing in a separate Section (Section 4 of the Evidence Act). (See module 2).
  1. Section 16 of the Bharatiya Sakshya Adhiniyam corresponds to S 18 of the Indian Evidence Act relating to persons who could make ‘Admissions’. The Section is restructured in the Bharatiya Sakshya Adhiniyam, without any change in substance.

(For discussions on the topic Pls see module 8).

  1. In the Bharatiya Sakshya Adhiniyam the provisions relating to confession are revamped. 3 sections of the Evidence Act, Sections 24, 28 and 29 are integrated into a single section that is Section 22 of the Bharatiya Sakshya Adhiniyam. Body of Section 22 corresponds to section 24 of the Evidence Act and proviso 1 and 2 of Section 22 corresponds to Sections 28 and 29 of the Evidence Act.

(For discussions on the topic Pls see module 9).

Likewise, provisions relating to confessions to the police in Sections 25, 26 and 27 of the Evidence Act are integrated into a single section that is Section 23 of the Bharatiya Sakshya Adhiniyam.

(For discussions on the topic Pls see module 10).

  1. Under the heading/topic “Opinions of Third Persons When Relevant”, in Chapter II, Sections 45 and 45A of the Evidence Act are integrated into one section in the Bharatiya Sakshya Adhiniyam as Section 39 in 2 clauses, three illustrations are also added to the Section.

(For discussions on the topic Pls see module 15)

  1. Under the heading/topic ‘Character when relevant’, 53 A of the Evidence Act is renumbered as Section 48 of the Bhartiya Sakshya Adhiniyam, which specifies that character of victim not relevant when question of consent is in issue in certain sexual offences.

(For discussions on the topic Pls see module 16)

  1. Section 58 of the Bharatiya Sakshya Adhiniyam (Section 63 of the Evidence Act) specifies different categories/modes of Secondary Evidence. Section 63 of the Evidence Act contained only 5 clauses. In the Bharatiya Sakshya Adhiniyam the provision is made more broader with the addition of the following 3 clause

(vi) oral admissions;

(vii) written admissions;

(viii) evidence of a person who has examined a document, the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.

  1. In the provisions relating to Professional Communications between Advocate and Client, following minor changes are made:

In Section 132 of the Bhartiya Sakshya Adhiniyam 2 Sections of Indian of the Indian Evidence Act Sections 126 and 127 are integrated into one Section. Above Subclause (3) corresponds to S. 127 of the Evidence Act.

In the Bhartiya Sakshya Adhiniyam, the words ‘barrister, attorney, pleader or vakil’ are replaced by the single word ‘Advocate’.  The word ‘employment’ is replaced by ‘Service’.

(For discussions on the topic Pls see module 3).

  1. Section 80 of the Bharatiya Sakshya Adhiniyam relates to Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents, reads as:

The Court shall presume the genuineness of every document purporting to be the Official Gazette, or to be a newspaper or journal, and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.

Explanation. —For the purposes of this section and section 92, document is said to be in proper custody if it is in the place in which, and looked after by the person with whom such document is required to be kept; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render that origin probable.

The corresponding section in the Evidence Act ie Section 81 included with in its scope document purporting to be the London Gazette or any Official Gazette, or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a copy of a private Act of Parliament of the United Kingdom printed by the Queen’s Printer.

But in Bharatiya Sakshya Adhiniyam these items are removed being outdated colonial references.

  1. Section 82 of the Evidence Act dealing with Presumption as to Document Admissible in England Without Proof of Seal or Signature is omitted being outdated colonial reference.
  1. Section 88 of the Evidence Act related to Presumption as to telegraphic messages. In this internet era telegraph has become outdated and is no more in use, hence, this provision became otiose and is omitted in the Bharatiya Sakshya Adhiniyam. (For discussions on the topic Pls see module 22)
  1. Three sections in the Indian Evidence Act relating to ‘Leading Question’ Sections 141, 142 and 143 are integrated into a single section in the Bharatiya Sakshya Adhiniyam as Section 146. This section prescribes what a leading question is, when leading question can be asked and when it cannot be asked. (For discussions on the topic Pls see module 27)
  1. Section 168 the Bharatiya Sakshya Adhiniyam corresponding to Section 165 of the Evidence Act relates to the Power of judge to put questions. 166 of the Evidence Act relates to similar powers of jury or assessors to put questions. This provision has been omitted in the Bharatiya Sakshya Adhiniyam, as the jury trial is not in existence in India now. (See module 27)
Changes Relating to Electronic Record
  1. In the Evidence Act “Electronic Record” was not specifically included in the definition of ‘Document’ in S.3. Now in the definition of ‘Document’ in the Section 2(d) of the Bharatiya Sakshya Adhiniyam, ‘electronic record’ is specifically included.

Illustration (vi) to section 2(d) provides that, an electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents;

  1. As a corollary of the above inclusion of ‘electronic record’ in the definition of document section 22A of the Evidence Act, which barred oral admission as to contents of electronic records as the matter is covered by Section 20 of the Bharatiya Sakshya Adhiniyam (corresponding to Section 22 of the Evidence Act) which bars oral admissions as to contents of documents.
  1. Section 57 of the Bharatiya Sakshya Adhiniyam defines Primary Evidence. It says ‘Primary evidence means the document itself produced for the inspection of the Court’. The Corresponding provision in the Indian Evidence Act 1872 was Section 62 which contained only 2 explanations. Explanation 1 in the Indian Evidence Act 1872 is split up and made into 2 explanations as Explanations 1 and 2 in Section 57 of the Bharatiya Sakshya Adhiniyam. The following Explanations 4 to 7 are also added and they relate to Electronic Records.

Explanation 4. —Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.

Explanation 5. —Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.

Explanation 6. —Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.

Explanation 7. —Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence. (For commentary see Module 20)

  1. Section 62 and 63 of the Bharatiya Sakshya Adhiniyam Corresponds to Section 65 A and 65 B of the Evidence Act.

Section 61 is a new provision which is in the nature of a clarificatory provision. It unequivocally ascertains the admissibility and the legal effect and validity of electronic record as other document. It reads as:

Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.

There are a few changes in the wordings of the provision in section 63 of the Bharatiya Sakshya Adhiniyam from that in section 65B of the Indian Evidence Act:

  1. In Clause (1) of Section 63 ambit of Computer Output and Electronic Record are Expressly Made Broader.
  2. In Sub Clause (3) of Section 63, it is clarified that One or More Computers or Communication Device for Creating/ Processing Information are Considered as a Single Computer/ Device.
  3. The cardinal change in section 63(4) of the Bharatiya Sakshya Adhiniyam from that of section 65 B (4) of the Evidence Act is that it prescribes certificate of an expert along with the certificate of the Person in charge of the computer.
  4. Now in the Bharatiya Sakshya Adhiniyam it is specifically prescribed that the such certificates shall be submitted along with the electronic record (stage of submission of certificate is specified).
  5. Specified format of the Certificates to be submitted by the Person in charge of the computer and that by an expert are provided in the schedule annexed to the Bharatiya Sakshya Adhiniyam. (For commentary see Module 20)

7. The Bhartiya Sakshya Adhiniyam 2023 Not To Have Retrospective Effect

All Pending proceedings will be governed by the Indian Evidence Act 1872.

Section 170 of the Bharatiya Sakshya Adhiniyam provides that:

(1) The Indian Evidence Act, 1872 is hereby repealed.

(2) Notwithstanding such repeal, if, immediately before the date on which this Act comes into force, there is any trial, application, trial, inquiry, investigation, proceeding or appeal pending, then, such application, trial, inquiry, investigation, proceeding or appeal shall be dealt with under the provisions of the Evidence Act, 1872, as in force immediately before such commencement, as if this Act had not come into force.

8. Basic Principles Governing the Bhartiya Sakshya Adhiniyam

in Zahira Sheikh v. State of Gujarat, reported in (2004) (part 4) SCC 158 the Supreme Court observed that “the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the law of evidence.”

The basic general principles that underlie the Evidence act as well as the Bhartiya Sakshya Adhiniyam are:

  1. That the evidence must be relevant and confined to the matter in issue. (in other words, insistence on the Doctrine of relevancy and admissibility)
  2. Hearsay evidence must not generally be admitted. (Exclusion of hearsay evidence)
  3. Best evidence must be given. (Best evidence rule)
  4. Burden of Proof generally lies on the person seeking relief/asserting a fact.
  5. Court’s discretion in appreciation/evaluation of the evidence.

We shall explain the above aspects while dealing with the appropriate topics in the subsequent modules.

The Law of Evidence is mostly a procedural law or adjective law aiding in the administration of justice.

We shall deal with each of the basic provisions, concepts and principles envisaged in the Evidence law, in detail, in the subsequent modules, as we delve topic wise more into the subject

9. The Indian Evidence Act / Bharatiya Sakshya Adhiniyam is exhaustive with respect to the provisions therein

It is a settled preposition that the Indian Evidence Act is exhaustive with respect to the provisions therein and no contra principle of English Common Law of Evidence can be imported. The same applies to Bhartiya Sakshya Adhiniyam.

The Act does not contain the whole law of Evidence. Certain rules of Evidence are also contained in other statutes such as Bankers Book Evidence Act, Civil Procedure Code etc

Order XXVI of the Civil Procedure Code, deals with Commission, it provides that the Commissioner’s report forms part of the record of the case and Order XVIII of the Civil Procedure Code provides for examination of witnesses by the Commissioner, instead of examination in the open court.

The Code of Criminal Procedure in Chapter XXIII, corresponding to Chapter XXV titled ‘Evidence in Enquiries and Trials’ of the Bharatiya Nagarik Suraksha Sanhita, 2023, deals with recording of Evidence.

With respect to the provisions enacted in the Evidence Act/ Bhartiya Sakshya Adhiniyam, the Act is exhaustive and the court does not have any dispensing power.

In, Hira H Advani v. State of Maharashtra, reported in 1969 (2) SCC 662: AIR 1971 SC 44. Supreme Court observed:

“Our 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.”

The Court referred to the judgment of the Privy Council in Sris Chandra Nandi v. Rakhalananda (deceased) ILR (1941) 1 Cal 468 = (AIR 1941 PC 16) wherein Lord Atkin who delivered the judgment of the Judicial Committee pointed out that evidence which was not admissible under the Indian Evidence Act could not be let in for the purpose of bringing out the truth. It was observed:

“What matters should be given in evidence as essential for the ascertainment of truth, it is the purpose of the law of evidence, whether at common law or by statute to define. Once a statute is passed, which purports to contain the whole law, it is imperative. It is not open to any Judge to exercise a dispensing power, and admit evidence not admissible by statute, because to him it appears that the irregular evidence would throw light upon the issue. The rules of evidence, whether contained in a statute or not, are the result of long experience, choosing no doubt to confine evidence to particular forms, and therefore eliminating others which it is conceivable might assist in arriving at truth.”

In State of Punjab v. Sodhi Sukhdev Singh reported in AIR 1961 SC 493, the Supreme Court held that, in case of doubt or ambiguity in the understanding of the provisions of the Indian Evidence Act, the Courts in India can, with advantage, look to the English Common Law for ascertaining the true meaning of the provisions.

10. The general scheme and an overview of the Bhartiya Sakshya Adhiniyam

Now we shall explain the general scheme and give an overview of the Bhartiya Sakshya Adhiniyam:

The Bhartiya Sakshya Adhiniyam 2023 contains 170 Sections, which are divided into 4 parts consisting of 12 Chapters and there is also a Schedule.

Part I

Part I which contains just 1 chapter is titled as ‘Preliminary’, with 2 sections. Section 1 specifies the title, extent and application of the Act. Section 2 is the Interpretation/definition Clause, which provides statutory meanings to various relevant words and phrases such as “fact”, “fact in issue”, “document” “proved”, “disproved”, “not proved”, “Evidence”, “Relevant”, and the meaning/sense in which the Act employs the phrases “may presume”, “shall presume”, and “conclusive proof” etc.

Part II

Part II is titled as ‘Relevancy of Facts’ and it contains chapter II comprising Sections from 3 to 50. The chapter deals quite comprehensively and exhaustively as to what all facts are relevant that could be tendered/given in evidence.

Section 3 of the Act also puts an embargo/bar on giving or receiving any other facts as evidence, which are not declared as relevant in Chapter II of the Act from Section 4 to 50.

Sections 4 to 14 are grouped together and titled as ‘Closely connected facts’;

Sections 15 to 25 are grouped together and titled ‘Admissions;

Sections 26 and 27 are grouped together and titled as ‘Statements by persons who cannot be called as witnesses’ (this portion deals interalia with Dying Declaration);

Sections 28 and 32 are grouped together and titled as ‘Statements made under special circumstances’;

The lone section 33 is titled as ‘How much of a statement is to be proved’;

 Sections 28 and 32 are grouped together and titled as ‘Judgments of Courts when relevant’;

 Sections 33 to 45 are grouped together and titled as ‘Opinions of third persons when relevant’;

Sections 46 to 50 are grouped together and titled as ‘Character when relevant’.

(We shall deal in detail the provisions relating to relevancy from Sections 3 to 50 in the subsequent modules).

Part III

Part III is titled as ‘On Proof’ it comprises comprises chapters III to VI containing Sections 51 to 103.  This part deals in general with the mode of proof and admissibility.

Chapter III from sections 51 to 53 deals with facts which need not be proved which include Facts judicially noticeable and facts formally admitted before the court/in a judicial proceeding.

Chapter IV is titled as ‘Of Oral Evidence’ and it comprises of sections 54 and 55. This chapter mainly mandates that oral evidence shall be direct and enunciates the cardinal principle of exclusion of hearsay evidence. (The doctrine of exclusion of hearsay evidence and its exceptions shall be dealt with in subsequent relevant modules).

Chapter V is titled as ‘Of Documentary Evidence’ and it comprises of sections 56 to 93. This chapter classifies Evidence as Primary Evidence and Secondary Evidence, Documents as public documents and Private documents. The provisions stipulate modes of proof of documentary evidence and of electronic records.

Sections 78 to 93 deal with various presumptions which could be raised with respect to certain documents.

Chapter VI comprising sections 94 to 103 deals with the law relating to instances of exclusion of oral/parol evidence by documentary evidence.

Part IV

Part IV of the Evidence Act contains chapters VII to XII comprising sections 101 to 170.

Provisions in Chapter VII from Sections 104 to 120 relate to burden of proof and certain presumptions. These provisions stipulate on whom the burden to lead the evidence lies.

Chapter VII from Sections 121 to 123 deals with rules of Estoppel.

The principle of estoppel, which is a rule of evidence is provided in Section 121, as per the said section:

When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

To explain the scope of the provision the section also provides an Illustration also which reads as:

‘A’ intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.

Chapter IX is titled as ‘Of Witnesses’. It comprises Sections 124 to 139. The provisions deal with the competence of witnesses as to who may testify, who shall not, Privileged communications such as Communication during Marriage between husband and wife, Professional Communications between Lawyer and Client etc.

Chapter X is titled as ‘Of the Examination of Witnesses’. It comprises Sections 140 to 168. This chapter lays down rules regulating the examination of witnesses.

Chapter XI contains the sole provision Section 169 which is self-explanatory and reads as:

The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.

By virtue of this provision an appellate court or a revisional court will not order fresh trial or interfere with a decision on the ground of improper admission or rejection of evidence unless it finds that improper admission or rejection of evidence has on its own has impacted / affected the decision.

Chapter XII comprising section 170 is the repeal and savings provision.

11. Applicability of the Bhartiya Sakshya Adhiniyam

Now, let us examine as to what/which all proceedings the Bharatiya Sakshya Adhiniyam 2023, applies:

As per Section 1, the Act extends to the whole of India and applies to all Judicial Proceedings in or before any court including Courts-martial, but not to affidavits presented to any Court or Officer, nor to proceedings before an arbitrator.

Section 2 defines “Court” as “Court includes all Judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence.

The Act does not define “Judicial Proceeding”.

Section 2(i) of the Criminal Procedure Code corresponding to 2(m) of the Bharatiya Nagarik Suraksha Sanhita, 2023 says that Judicial Proceeding includes any proceedings in the course of which evidence is or may be legally taken on oath”.

In this context, the Statement of West, J in Queen Empress v. Tulja, Reported in (12) ILR 1888 Bom. 36 at page 42, has often been reiterated, West, J stated:

”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; between him and the community generally; but even a judge, acting without such an object in view, is not acting judicially.”

The word “Jural” pertains to the rights and obligations sanctioned and governed by the law. ‘Jural relation’ refers to doctrines of rights and corresponding obligations between different persons. It could be between Employer and Employee, Landlord and Tenant, Mortgagor and Mortgagee, Debtor and creditor, Trustee and Beneficiary etc.

In R v. Gholam (1875) ILR 1 All, it is laid down that judicial proceeding can be expressed as any procedure over the course of which evidence is or might be taken, or in which any judgment, sentence or final order is passed on recorded evidence.

The Bhartiya Sakshya Adhiniyam applies equally to civil and criminal judicial proceedings before a court.

It is an undoubted proposition that the Bhartiya Sakshya Adhiniyam as such applies to such proceedings, which proceedings has to satisfy two conditions, viz., (1) the proceedings must be judicial; and (2) it must be in or before any court.

In Virindra Kumar Satyawadi v. State of Punjab; AIR 1956 SC 153 a 3 Judges bench of the Supreme Court observed:

“It may be stated broadly that what distinguishes a Court from a quasi judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter or right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question wherefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the at tributes of a Court.”

12. Whether Bhartiya Sakshya Adhiniyam Applies to Special Statutory Tribunals

Now let us see whether Bhartiya Sakshya Adhiniyam applies to Special Statutory Tribunals. In the case of a tribunal, if the statute creating the Tribunal authorises it to take evidence and determine on jural relation, then, the Act becomes applicable to the proceedings before such tribunal. Therefore, the applicability of the Act depends upon the powers conferred on the tribunal by the statute under which it is established.

Motor Accidents Claim Tribunal: – The proceedings before the Motor Accidents Claim Tribunal are Judicial and the Provisions of the Evidence Act / Bhartiya Sakshya Adhiniyam apply to such proceedings.

Proceedings under Foreign Exchange Management Act:-  The Supreme Court in Shanti Prasad Jain v. Director of Foreign Exchange Regulation Act, reported in AIR 1962 SC 1764 has held that the proceedings under Foreign Exchange Regulation Act are governed by the Indian Evidence Act. The Court observed:

“Before entering a discussion of the materials bearing on this point, we may deal shortly with a question which was agitated before the Director of Enforcement and the Appellate Board. That is whether the provisions of the Evidence Act are applicable to the proceedings under the Act. R.3(5) of the Rules framed under the Act provides that in taking evidence, “the Director shall not be bound to observe the provisions of the Indian Evidence Act, 1872 (I of 1872).” S.24A of the Act provides that the court shall presume the genuineness and the truth of the contents of certain documents tendered in evidence by the prosecution unless the contrary is proved. The Director of Enforcement held that by reason of the above provisions the Evidence Act had no application to proceedings under the Act. The Appellate Board came to a different conclusion. It held that S.24A had application only to proceedings in Court and that R.3(5) had not the effect of rendering admissible evidence which was irrelevant or inadmissible under the Evidence Act. In our opinion this is the correct view to take of the scope of S.24A and R.3(5) and that was conceded before us by the learned Attorney General appearing for the respondents.”

Income tax authorities: – Income tax authorities are not bound by the strict rules of Evidence Act/Bhartiya Sakshya Adhiniyam). See Commissioner of Income-tax v. East Coast AIR 1967 SC 768.

Consumer Forum: – The Consumer Protection Act 1986, mandates that, the Consumer Protection Forums need only comply the principles of Natural Justice and are not bound by the strict rules of the Bhartiya Sakshya Adhiniyam.

Family Courts: Strict rules of Evidence Act/Bhartiya Sakshya Adhiniyam do not apply to proceedings before the Family Court. Section 14 of the Family Courts Act reads as:

A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872).

Industrial Tribunal and Labour Court: Strict rules of Evidence Act /Bhartiya Sakshya Adhiniyam do not apply to proceedings before the Industrial Tribunal. But the Tribunal cannot disregard the fundamental rules of fairness.

In M/s Bareilly Electricity Supply Co Ltd v The Workmen and Others, AIR 1972 SC 330, the Supreme Court observed:

“….the application of principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the question that naturally arises is, is it a genuine document, what are its contents and are the statements contained therein true. When the Appellant produced the balance sheet and profit and loss account of the Company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the Appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as S.11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognised and admit of no doubt”

13. Whether Bhartiya Sakshya Adhiniyam Applies to Domestic Tribunals

The strict technical provisions of the Evidence Act/ Bhartiya Sakshya Adhiniyam do not apply to Domestic Tribunals/in domestic enquiries, instead only the general principles of Natural Justice do apply:

In Union of India v. T. R. Varma, AIR 1957 SC 882, T. L. VenkitaramaIyer, J., delivering the judgment of the Supreme Court observed:

“The Evidence Act has no application to enquiries conducted by tribunals even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of law. Stating it broadly and without intending to be exhaustive, it may be observed that rules of natural justice require that a party should have an opportunity of having adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross examining the witnesses examined by that party, and that no material should be relied on against him without his being given an opportunity of explaining them. If these rules are satisfied the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed”.

The above preposition was further reiterated by the Supreme Court in Central Bank of India v. Prakesh Chandra Jain, AIR 1969 SC 983. The Court observed:

“…. Domestic tribunals, like an Enquiry Officer, are not bound by the technical rules about evidence contained in the Indian Evidence Act; but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act.”

14. Whether Bhartiya Sakshya Adhiniyam Applies to Proceedings before Arbitrators

As expressly excluded by section 1 of the Bhartiya Sakshya Adhiniyam, the strict rules of the Act do not apply to proceedings before an Arbitrator. Basic rules of natural justice do apply in the Proceedings before the Arbitrators. As per Section 19 of the Arbitration and Conciliation Act 1996 also Arbitral tribunals are not bound by Evidence Act. Section 19 reads as under:

Determination of rules of procedure

(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (I of 1872).

(2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.

(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate.

(4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

15. Exclusion of Affidavits – Explained

Affidavit is a declaration of facts, made in writing and sworn before a person having authority to administer oath.

Section 1 of the Bhartiya Sakshya Adhiniyam excludes Affidavits from the perview of the Act. Therefore, an Affidavit cannot be used as evidence unless some other statute permits a matter to be proved by an Affidavit.

In Smt Sudha Devi v M P Narayanan and Others, AIR 1988 SC 1381, the supreme Court reiterated the above proposition:

“The criticism by the High Court that the witness did not state anything in his evidence which could connect him with the plaintiff or the property and thus make him competent was attempted to be met before us by relying on an affidavit filed in this Court. We are afraid, the plaintiff cannot be allowed to fill up the lacuna in the evidence belatedly at the Supreme Court stage. Besides, affidavits are not included in the definition of ‘evidence’ in S.3 of the Evidence Act and can be used as evidence only it for sufficient reason court passes an order under O.XIX, R.1 or 2 of the Code of Civil Procedure.”

Order XIX of the Civil Procedure Code and Sections 295, 296, 297 etc of the Code of Criminal Procedure (corresponding to Sections 331, 332, 333 of the the Bharatiya Nagarik Suraksha Sanhita, 2023) regulate the matters to which an Affidavit must confine.

Order XIX Rule 1 provides that court may for sufficient reasons order that any particular fact may be proved by affidavit.

The Civil Procedure Code as amended by Amendment Act 2002, also provides for receiving Examination in Chief through Affidavits. Order 18 Rule 4(1) reads as follows:

(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:

Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.

Interlocutory Applications in Civil Courts are generally decided on Affidavits. Order 38 Rule 1 of Civil Procedure Code in the case of Arrest before Judgment, Order 38 Rule 5 in the case of Attachment before Judgment and Order 39 Rule 1 in the case of interim Injunction explicitly empowers the court to decide interim applications based on Affidavits.

With that we come to the close of the first module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence.

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Exercise Questions

  1. What is meant by ‘Evidence’? How ‘Evidence’ is defined in the Bhartiya Sakshya Adhiniyam 2023?
  2. To what proceedings the Bhartiya Sakshya Adhiniyam 2023 applies? Whether Bhartiya Sakshya Adhiniyam applies to the proceedings before Statutory Tribunals? Whether Evidence Act applies to the proceedings before a domestic enquiry officer?
  3. Whether Bhartiya Sakshya Adhiniyam applies to the proceedings before an Arbitrator?
  4. Elucidate the application of the Bhartiya Sakshya Adhiniyam 2023 to Affidavits?
  5. Outline the Historical development of the Law of Evidence in India?
  6. Whether the Bhartiya Sakshya Adhiniyam 2023 is the whole law of Evidence in India? “The Bhartiya Sakshya Adhiniyam 2023 is exhaustive with respect to the provisions therein and no contra principle of English Common Law of Evidence can be imported”, Elucidate.
  7. What are the basic general principles that underlie the Bhartiya Sakshya Adhiniyam 2023?