LAW COMMISSION OF INDIA 185th Report on Review of the Indian Evidence Act 1872 by Justice M.J.Rao, Chairman The 7th Law Commission presided by Justice Gajendragadkar submitted.

Transcript LAW COMMISSION OF INDIA 185th Report on Review of the Indian Evidence Act 1872 by Justice M.J.Rao, Chairman The 7th Law Commission presided by Justice Gajendragadkar submitted.

LAW COMMISSION OF INDIA 185

Report on Review of the Indian Evidence Act 1872

by Justice M.J.Rao, Chairman

The 7 th Law Commission presided by Justice Gajendragadkar submitted its 69 th Report on the Evidence Act in May 1977 In 1995 it was referred back to Law Commission on the ground that 18 years have passed since its submission Present Report has considered every section of the Indian Evidence Act Reviewed the recommendations of 69 th Report Accepted some of the amendments proposed & has recommended new provisions also This presentation is confined to actual amendments proposed

Definitions-Section 3 Interpretation clause



5 new amendments proposed in section 3

Four are formal  Fifth is enlargement of the definition of

document

by making it an inclusive one  Explanation to that definition provides that it is immaterial the form in which the letters,figures or marks on the substance are formed decoded or retrieved 3

Substitution of Section 10

Things said or done by conspirator in reference to common design

The section opens with the words “Where there is reasonable ground to believe that two or more persons have conspired to commit an offence” This gives an impression that the court has to give a preliminary finding on the existence of reasonable ground for such belief To dispel this impression cluase (a) has been inserted to say that the section would apply where “the existence of a conspiracy …..is a fact in issue or relevant fact.” Contd……… 4

….

Contd Section 10 The section uses the words “in reference to their common intention Controversy was furtherance of’ if these words mean ‘in The proposed amendment accepts the view of the Privy Council & Supreme Court and Substitutes reference to’ ‘in furtherance of’ for ‘in

Section 11 When facts otherwise not relevant become relevant

There has been considerable controversy in the High Courts whether facts not otherwise relevant,when they become relevant under sub sections (1) and (2), they should further be relevant under some other section of the Act Now an Explanation has been inserted stating that such facts need not necessarily be relevant under some other section of the Act but the degree of their relevancy should be judged separately

Section 13-Facts relevant when right or custom is in question

Clause (a) makes relevant any ‘transaction’ by which the right or custom is created ,claimed ,modified recognised asserted or denied etc There is a conflict of judgments of Supreme Court & Privy Council as to whether – A ‘transaction’ includes a judgment not inter-parties and Finding of fact arrived at in judgments not inter parties would be relevant in subsequent proceedings

…..section 13 contd Explanation I is inserted to confirm the view that a judgment not inter-parties is a transaction within the meaning of section 13 ; and Further*

law:

Differing from 69 th Report that findings of facts arrived at earlier in such judgement are relevant in subsequent proceedings, where any right or custom are created or recognised etc in the earlier judgement Contd…… 8

…. Section 13 contd There is also a controversy in the High Courts whether boundary recitals as to immovable property in earlier documents not inter parties are not relevant in the subsequent proceedings Explanation II accepts the view that such boundary recitals in documents not inter parties are relevant in subsequent proceedings

law:

Differing from 69 th Report 9

Section 21 Proof of admissions against persons making them and by or on their behalf

The section provides when an admission may be proved by or on behalf of a person It did not mention when admission cannot be proved by or on behalf of persons Contd……

…. Section 21 Contd The section is reformulated Subsection (1) deals with 5 situations in which admissions may be proved by or on behalf of a person against another and Subsection (2) deals with the question when admissions cannot be so proved (except in 3 situations) 11

Section 23 Admission in civil cases when relevant

Admissions made for the purposes of or during a settlement or compromise cannot be treated as relevant in case the settlement or compromise fails The section does not contain a provision to the effect A specific provision is made that such admissions are not relevant except (as now recognised in English law) when the admission helps a third party Contd……..

Section 23 contd..

special provisions relating to lawyers and media persons

Section 23 specifically states that admissions made by a client to his lawyer regarding illegalities etc committed by him are not exempt from disclosure under sec 126 Now section 23(3)(b) is newly inserted to compel persons who made admissions before media and also to compel the media person to disclose the admission if required in public interest under sec.132A

[A new section 132A is inserted empowering a court to compel a media person to disclose sources of communications made to him, if required in public interest]

Section 24-Confession caused by inducement threat or promise when irrelevant in criminal proceedings

Present section 24 only deals with confessions caused by inducement,threat or promise and mentions when they are irrelevant in a criminal proceedings.

It does not specifically refer to confessions obtained by coercion violence or torture. These have been added to the situations in which confessions obtained by those means would be irrelevant law:

This amendment has considerable importance and bearing on proposed amendment to section 27 14

Section 27 How much of information received from accused may be proved

Ref sections 25 &26

Controversial Issues raised under this section are the subject matter of conflicting judgments of the Supreme Court and High Courts Contd……… 15

… …contd There is no judicial controversy about relevance of facts discovered from confessions made by persons in custody (section 26) but the controversy is as to facts discovered from confessions made by persons not in custody (section 25) Contd…… 16

Section 27 contd..

Facts discovered from confessions made under inducement,threat or promise(though not the confessional part) are admissible in various countries Under section 24 there is controversy in courts as to such admissibility Contd………..

….section 27 contd In the 69 th Report it was recommended that facts discovered out of confessions made under inducement threat or promise (sec.24) should not be admissible at all.

Contd….

……section 27 contd Ref sec.24

Proposed amendment balances both views by excluding only facts discovered from confessions obtained by threat coercion violence or torture. However facts discovered from confessions obtained by inducement or promise continue to be admissible There will be a trial within a trial 19

Section 28

Confession made after removal of impression caused by inducement, threat or promise relevant: As in sec. 24, the words “coercion, violence or torture” are added.

Section 29: Confession otherwise relevant not to become irrelevant because of promise of secrecy etc.

The section mentions when confession is relevant and when it does not become relevant. •

It does not deal with relevancy or otherwise of a confession recorded by a Magistrate in contravention of the provisions of sec. 164 of the Cr.P.C. Subsection (2) is now inserted to say that subject to sec. 463 Cr.P.C., such a confession will not be relevant.

•

Section 30: Consideration of proved confession affecting person and others jointly under trial for same offence

The section makes relevant the confession of one relevant against another person if they are jointly under trial for the same offence

•

The section does not deal with plurality of offences.

•

Case law requires the confession to be made before commencement of trial.

•

These aspects are introduced into the body of the section

Section 32: Statements of relevant fact by person who is dead or cannot be found

•

The section does not contain a provision making statements made in writing during discharge of professional duty by persons who are dead or cannot be found.

•

This is proposed in the new clause (2A) Contd

…..… 23

Section 32 contd…

With regard to statements by such persons in documents not inter-parties, relating to boundaries, there is a conflict of opinion in the High Courts. Explanation to cl. (3) of sec. 32 is proposed for making such statements relevant, (differing from the 69th Report) if they are against the interest of the person.

Clause (7) of sec. 32 which makes statements by such persons as to ‘transactions’ within the meaning of sec. 13 is vague. Explanation I clarifies by bringing in the contents of sec. 13 with clause (7)

Section 33: Relevancy of evidence produced in an earlier proceeding for purposes of a subsequent proceeding, where the witness is dead etc.



The language of proviso to sec. 33, “that the proceeding was between the same parties or their representatives in interest” was interpreted by the Privy Council that the parties to the earlier case must be the representatives of those in the latter case. This view has been severely criticised

Contd… 25

Section 33 contd… The proposal now is that the parties to the latter proceeding must be parties or representatives of those in the earlier proceedings when the witness gave evidence. The Explanation is widened to clarify how the section applies to criminal proceedings.

Section 39: What evidence to be given when statement forms part of a conversation, document or book etc.

• • The section permits evidence to be given of so much and no more as the Court considers necessary for the full understanding of the nature and effect of the conversation, document or book Now subsection (2) is inserted to permit the opposite party to refer to any other part of the conversation, document or book which it considers necessary 27

Section 41:Relevancy of certain judgments in probate, matrimonial, admiralty, insolvency

• Section 41 makes the declaration made in the judgment conclusive proof. • Courts have differed on whether the section applies where probate is refused. • • Explanation now makes it clear that refusal to grant probate does not fall with sec. 41 This means that parties can go for a regular suit 28

Section 45: Opinion of experts

The section did not refer to opinion based on footprints or palm impressions or typewriting or usage of trade or technical terms or identity of persons or animals. The expert evidence in this behalf is now made relevant.

Section 45A: Supply of copy of Experts’ Report

• • This section is newly inserted to state that the expert, even if called by a party, has a duty to the Court and shall address his opinion to the Court rather than to the party who nominated him. Further, amendments introduced in England as to what information the expert should give to the court, is now specified in clauses (a) to (g) so that the expert is compelled to make a thorough investigation and give reasons 30

Section 45B: Procedure to prove foreign law and Court’s power

•

There was no express provision earlier.

•

Now the party has to give notice to the opposite side and the Court is permitted to look into material not submitted by the party and the decision of the Court shall have to be treated as a decision on a ‘question of law’.

Section 50: Opinion as to relationship, when relevant

Opinion expressed by conduct is evidence of relationship under the section. The proviso however stated that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 or in prosecution under sec. 494 etc.IPC.

The proviso is amended and is put in general language to say that such opinion by conduct is not sufficient proof of such marriage in any civil or criminal proceeding.

Section 53A Character of Victim not relevant in certain cases In a prosecution for an offence under sections 376,376A,376B,376C or 376D or for an offence to commit such an offence where the question of consent is in issue, evidence of character of victim or previous sexual experience shall not be relevant 33

Section 57A: Court to take judicial notice of certain matters relating to foreign states regarding recognition of a Government/Head of State

 This was contained in sec. 87A of CPC and is now shifted to this Act as subsection (1) of sec. 57A as it pertains to ‘judicial notice’.

Contd… 34

Section 57A contd..

Section 87A did not indicate the procedure. Now subsections (2) and (3) are added to deal with the procedure on the same lines as under sec. 6 of the Foreign Jurisdiction Act, 1947 where the Court writes to the Government and the Secretary to Govt. gives a certificate as to recognition of a Government/Head of State.

Section 60: Oral evidence must be direct

• The proviso to sec. 60 permitted reference to opinions of experts in treatises. • Now a further proviso exempts experts who have given their opinion from being called as witnesses, if they are employees of Government or Local bodies, or Universities unless a party wants to call him for cross-examination.

Section 65: Cases in which secondary evidence relating to document may be given.

• The section permits secondary evidence of a document which a person in possession or control thereof is ‘legally bound to produce it’ and does not produce it.

Contd… 37

Sec. 65 Contd…

• English law permits secondary evidence if a person is in possession or control of the document and is ‘not legally bound’ to produce to being an utter strength or a witness. • This proviso is now inserted in cl.(aa) of sec. 65(1).

Sections 66 to 72: Proof of documents by examining attestor.

• These sections applied, apart from wills, to mortgages and gifts, which are required to be attested. • In the case of a will, it was mandatory to call at least one attestor, if alive.

Contd… 39

Sections 66-72 contd…

• In 1938, the requirement of calling an attestor was given up in UK, except in relation to wills. • Therefore, sec. 66 to 72 are now completely restructured and are confined to wills, as in UK.

Section 73: Comparison of signature, writing or seal with others admitted or proved

• The Court can compel any person present in Court to write any words or figures for comparison.

• Subsection (4) now inserted restricts this power in criminal cases unless cognizance of the offence is taken by the Court.

Section 74: Public documents

• This section did not treat as public document the records forming part of a case leading to a judgment of a Court or an order of a public officer who pronounces the order judicially. • Now an Explanation is inserted to deem them public documents.

Section 77: Proof of documents by production of certified copies

 This amendment accepts the view that where a certified copy is issued it should be admissible irrespective of whether it has been issued pursuant to a ‘right to inspect’ or ‘a right to obtain a certified copy’ .

Section 78: Proof of other official documents.

• There is no provision in section 78 as to mode of proof in regard to unpublished and private proceedings of a legislature or its committees. • For this purpose clause (2A) is proposed. They can be proved by a certified extract of the proceedings, issued by the Presiding Officer of the Legislature or Chairman/Head of the Legislative Committee.

Section 90: Presumption as to genuineness etc. of old documents

• Section 90 provided that the Court may presume the due execution, genuineness of handwriting and due attestation of documents more than 30 years old, if produced from proper custody.

• The period is now reduced to 20 years as in various countries.

Contd… 45

Section 90: Presumption as to genuineness etc. of old documents contd …

• The Privy Council & Supreme Court restricted this presumption to original documents. • There are conflicting judgments of High Court as to applicability of the section to certified copies whose originals are equally old. • Now like presumptions may be made if certified copies are produced whose originals are 20 years old (UP Amendment of 1954 is adopted).

Section 90A: Presumption to documents less than 20 years old

• Question has arisen in High Courts as to presumption of execution by producing certified copies of documents less than 20 years old. • Now the proposal in sec. 90A is to raise a presumption of due execution of original ,which is less than 20 years old where certified copy is produced.

Contd… 47

Section 90A: Presumption to documents less than 20 years old contd…

•

In respect of certified copies given by Courts, the original must have been adjudged genuine in in the earlier proceeding

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Further the document under section 92A must not the basis of the suit or defence.

•

This is also adopted from UP Amendment of 1954.

Section 92A: Unilateral Documents & exclusion of oral evidence

• There is no provision in regard to exclusion of oral evidence in the case of certain unilateral documents like confessions, statements of witness, court proceeding or resolution of a company. • For this purpose sec. 92A is inserted 49

Section 107: Burden of proving death of person known to have been alive within 30 years

• The section does not take into consideration death in ‘accidents or calamities’ within 30 years, in circumstances which render it highly probable that the person died. • A proviso is inserted for this purpose.

•

Section 108: Burden of proving that a person is alive who has not been heard for 7 years

The section was interpreted by the Privy Council to say that while there may be presumption of death if a person is not heard of for 7 years, there can be no presumption as to exact date of death after 7 years.

• This has led to serious problems if a spouse wants to remarry or if claims for succession to property have to be made.

Contd… 51

Section 108: Contd…

•

It is now proposed that as from the date of expiry of 7 years, the person’s death may be presumed unless it is rebutted by proof that the person is living after expiry of 7 years.

•

Explanation is added to say that if a person contends that a person died on a particular date within 7 years, then he has to prove it.

Section 108A: Presumption in case of simultaneous deaths

• There was solitary provision in sec. 21 of the Hindu Succession Act, 1956. • Now a general provision is made that in the case of simultaneous deaths, the elder person shall be presumed to have died first. • Contd…..

Section 108 A : Contd…

•

In the case of simultaneous death of spouses, in order to enable the heirs of the owner-spouse to succeed, there is a further provision as in other countries that the other spouse (i.e. even if younger) is to be presumed to have predeceased so that ,that spouse’s heirs cannot have a claim, unless that spouse is a heir by will or intestate succession.

Section 112: Birth during marriage conclusive proof of legitimacy except in certain cases.

• • • The section raised a conclusive presumption of legitimacy if a person was born during the continuance of a valid marriage or within 280 days of its dissolution of a voidable marriage.

Now this is extended to cases where declaration that a marriage in a nullity is given.

But in both situations, the personal law must have said the children of such marriages shall be deemed to be legitimate.

Contd… 55

Section 112 Contd…

• Section 112 contained only a single exception, namely, non-access to prove a person is not the father.

• But, having regard to developments in science and changes in law in other countries, impotency/sterility; blood test analysis; DNA analysis are brought in as other exceptions. • But at least two tests conducted in each type of test must have led to an inference that the male is not the father. (If the samples or DNA match, there cannot be an inference that the male is the father).

Section 114: Court may presume existence of certain facts

• Section 114 refers to a presumption prospectively that a state of things in existence at a point of time must have continued unless the contrary is proved.

• The presumption backwards is also laid down in certain countries and is laid down by the Supreme Court. This is given recognition by adding illustration (da).

Contd… 57

Section 114 Contd…

•

Illustration (b) is omitted and the content of Illustration (b) dealing with ‘accomplices’ which says, that an accomplice is unworthy of credit, unless corroborated in material particulars is now shifted to sec. 133 which says that conviction on basis of any accomplice’s evidence is not illegal if it proceeds upon uncorroborated testimony of an accomplice.

Section 114A: presumption as to bodily injury while in police custody

• • In the case of custodial deaths, that such a presumption must be raised was accepted in the 113 th Report of the Law Commission and this was quoted by the Supreme Court in its judgment. This presumption against the police officers concerned is incorporated and subsection (2) enumerates the relevant circumstances – (a) period of custody (b) statement of the victim or (c) medical practitioner or (d) evidence of magistrate who recorded or attempted to record victim’s statement

•

Section 116: Estoppel of tenants and of licensees of person in possession

A tenant is estopped, under the section, from denying title of the landlord during the continuance of tenancy. • Now, this estoppel is extended even for the period after expiry of the period of tenancy. • Clause (2) is inserted extending estoppel against tenant as against other landlords to whom he has attorned. It is also extended against legal representatives of tenants.

Section 119: Dumb persons

• The section does not deal with admissibility of the evidence of an expert who interprets the signs of a person unable to speak. • Now it is proposed that such expert evidence be treated as evidence of the dumb person.

Section 120: Evidence of spouses in civil/criminal proceedings

• • The spouses are competent witnesses apart from the parties. In order to preserve family peace, as done in other countries, a provision is added that the spouse shall not, in a criminal case, be compelled to give evidence against the other spouse except in three situations – consent, spouse is complainant, or offence is against spouse/child.

Section 122: Communication during marriage

• • This section provides for privilege as to communications between spouses, and is subject to certain exceptions, such as proceedings between them, etc.

The House of Lords dealt with a case where a third party overhears or intercepts the communication. These are now made admissible without consent of parties, but by evidence of the third parties.

Sections 123 and 124:

Following two earlier Law Commission 69 th & 88 th Reports and the principles laid down in S.P. Gupta, the unpublished official records relating to a affairs of State can now after the affidavit of the Secretary to the Department, be inspected by the Court by calling for them in chambers, in case the plea for production is rejected by the Department. The Court performs the balancing tasks as to what is good in public interest.

Contd..

Sections 123 and 124 Contd…

Regarding sec. 124 dealing with communication to a public officer, if they too relate to affairs of State, it will be now be sufficient to follow the procedure in sec. 123.

It is not necessary also to follow the procedure under section 124 Contd … 65

Sections 123 and 124 Contd…

Where the objection for production is raised in a Court subordinate to the High Court, in stead of a decision and appeal as suggested in the 88 th Report of the Commission, a procedure for Reference to High Court is proposed as a more effective procedure.

An appeal is not effective as it requires a decision and it results in disclosure of content 66

Section 126: Professional communications

• Question has arisen whether the privilege of a legal practitioner not to disclose communications with his client is absolute or should, like sec. 123, be allowed to balanced by the court in public interest.

• Section 126 contd… • Following the recent decision of the House of Lords, the section is retained without any balancing authority given to court • The existing two exceptions as to illegality ,crime etc are retained 68

Section 132: Witness not excused from answering on ground that answer will incriminate

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The section refers only to privilege of a witness.

•

A separate subsection is introduced to situation where an accused gives up his privilege to remain silent and offers evidence under section 315 of Cr.P.C.

• Section 132 Contd …..

• On the same lines the privilege of not being incriminated applies to him other than in the case in which he has volunteered to give evidence 70

Section 132A: Disclosure of source of information contained in publication media person

In line with law in other countries and judgment of European Court and after referring to earlier Law Commission Reports, viz 69 th ,93 rd and 173 rd Reports section 132A is proposed

Section 132A Contd…..

section 132A is inserted declaring the privilege of the media person except when the Court requires for purposes like security of State, contempt of Court etc. as in Art. 19(2) of Constitution.

Sections 132B. 132C: Communication with patent/trade mark agents

These are new and are on lines in other countries and deal with privilege of such statutory agents.

Section 133: Accomplice

As stated under section 114 ill.(b), the section has been redrafted bringing into section 133, the content of the presumption under section 114 ill.(b). An accomplice is competent witness against co accused but his evidence is unworthy unless he is corroborated in material particulars. This is subject to the proviso that the conviction of a person on basis of the evidence of an accomplice is not illegal merely because it proceeds on testimony of an accomplice.

Section 146: Questions lawful in cross-examination

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In section 146(3), a proviso was added by Act 4 of 2003 that a prosecutrix in rape cases (sec. 376) shall not be question about her previous character.

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This provision is welcome but is proposed to be further widened as per the

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172 nd Report of the Law Commission, by extending this to sections 376A to 376D also. It is proposed to delete the recent proviso and insert cl. (4) for this purpose

Section 148A: Accused person not to be asked certain questions

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This section is new and is incidental to Art 20(3) of the Constitution of India, even where the accused offers under sec. 315 Cr.P.C. to give evidence.

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He cannot be asked if he has committed other offences except in four specific limitations mentioned in the section.

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In the third exception it is specifically stated that question can asked in regard to character but not of the prosecutrix.

Section 154: Hostile witness

• T

here is lot of controversy about evidence of hostile witnesses.

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Recommendations have been made in 178 h Report of Law Commission as to recording statements under sec. 162 by Magistrates atleast where punishment is above 10 years.

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Subsection (2) is proposed, accepting the judgment of the Supreme Court that ‘Nothing in this section shall disentitle the party so permitted (to cross examine his own witness) to rely on any part of the evidence of such witness.

Section 155: Impeaching credit of witness

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This section contained clause (4) which stated that when a man is prosecuted for rape or an attempt to ravish it may be shown that the prosecutrix was of generally immoral character.

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The clause has been omitted by Act 4/2003. In this context reference may also be made to the proposals for inserting sec. 53A and for adding clause (4) in sec. 146.

Section 155A: Impeaching the credit of accused while examining him as a witness

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This section is new and covers cases where the accused offers himself as a witness under sec. 315 Cr.P.C., 1973 and he cannot be asked questions about offences other than the one charged or that he is of bad character.

• Section 155A Contd …… • There are four exceptions and in the third, it is made clear that questions about character (other than that of the prosecutrix) can be put 80

Section 157A: Establishing credit of witness by independent evidence

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This is a new provision and fills a gap in the Act.

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It permits a party to adduce independent evidence to establish the credit of a witness which is impeached, notwithstanding anything in sec. 153 which excludes evidence to contradict answers to questions testing veracity of a

Section 162: Production of documents

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This section, read with sections 123, 124 is very important as it also refers to documents relating to ‘matters of State’.

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In view of S.P.Gupta & other cases and the proposed amendments to sections 123, 124, the words ‘matters of State’ are omitted as proposed in two earlier Reports of the Law Commission. Viz 69 th & 88th

Section 165: Judge’s power to put questions

This is quite wide as it allows even irrelevant questions. It is proposed to restrict it by stating that if a party to the case cannot put some questions – (such as eliciting oral evidence those relating to inadmissible documents), the Court too cannot put similar questions.