Extent and Applicability of Indian Evidence Act, 1872

    Edited by: Vaani Garg

    INTRODUCTION

    Extent and applicability of Indian Evidence Act 1872 is provided in Section 1 of the Act. Evidence plays a very significant role in determining the occurrence of events that have happened or that will take place eventually. It is governed not by substantive or procedural law, but by adjective law, which describes the pleading and the procedure by which substantive laws are put into effect. The very purpose behind the creation of the Indian Evidence Act is to help the judiciary in deciding a case. It is a technical and stringent Act that affects judicial discretion.

    It is not governed by substantive or procedural law, but by adjective law, which defines the pleading and procedure by which substantive laws are put into practice. This Act is used in all judicial proceedings in or before a Court. Extent and applicability of Indian Evidence Act 1872 has been discussed in detail herein. According to Blackstone, “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”.

    EXTENT AND APPLICABILITY

    Extent and Applicability of Evidence Act

    Part 1, Chapter 1, Section 1 provides for extent and applicability of Indian Evidence Act 1872. The bare language of the provision is as follows:

    Section 1 – Short title, extent and Commencement

    This Act may be called the Indian Evidence Act, 1872.

    It extends to the whole of India and applies to all judicial proceedings in or before any Court, including Courts-martial, [other than Court-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 (34 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.

    This Act extends to whole of India. The words “except the state of Jammu and Kashmir” were omitted by the Jammu and Kashmir Reorganisation Act, 2019. Section 3 of Indian Evidence Act defines “India”. It applies to all the legal procedures in or under the watchful eye of the any Court including the Court-martial, other than the Court-martial convened under the Army Act, Naval Discipline Act or the Indian Navy (Discipline) Act 1934, or the Air Force Act yet not to affidavits produced to any Court nor to procedures before a judge.

    ALL JUDICIAL PROCEEDINGS

    Judicial Proceeding is defined in Section 2(i) of The Code of Criminal Procedure 1973. It provides: ” judicial proceeding” includes any proceeding in the course of which evidence is or may be legally taken on oath. As per Mayne, “Judicial proceeding is any step in the lawful administration of justice in which evidence may be legally recorded for the definitive decision of the matter in issue in the case.

    Queen Empress v. Gholam Ismail (1898) ILR 20 All 151

    Judge Spankie defined judicial proceeding as any proceeding in the course of which evidence is taken under oath or in which any judgement, sentence or final order is passed on recorded evidence.

    S.D. Joshi v. High Court of Judicature at Bombay 2011 AIR (SC) 848

    The term “judicial” has been defined herein. It has two meanings:

    • it refers to the discharge of duties exercisable by a judge in a Court.
    • to administrative duties which need not to be performed in the Court but which need a judicial mind.

    COURT

    As per Indian Evidence Act 1872, “Courts includes all Judges and Magistrates, & all persons, except arbitrators, legally authorized to take evidence.

    Supreme Court Legal Aid Committee v. Union of India 1994 SC (6) 731

    A court is an agency created by the sovereign for the purpose of administering justice.

    Brijnandan Sinha v. Jyoti Narain 1956 AIR 66

    Supreme Court held the definition of a court is not exhaustive definition in Indian Evidence Act. It is only an inclusive definition and thus it is applicable only to Indian Evidence Act.

    TRIBUNAL

    Tribunals are quasi judicial and thus Indian Evidence Act doesn’t apply. All courts are Tribunal but all Tribunals are not courts. They are not part of hierarchy of courts. Article 136 of Constitution use words ‘courts’ and ‘tribunals’ separately. Tribunals adjudicate matters in special cases and there adjudications are called awards.

    S.D. Joshi v. High Court of Judicature at Bombay 2011 AIR (SC) 848

    With the growth of civilisation and the problems of modern life, a large number of administrative tribunals have come into existence. These tribunals have the authority of law to pronounce upon valuable rights. They act in a judicial manner. Some even take evidence on oath but they are not part of the ordinary courts of judicature. They share the exercise of the judicial power of the State. They are brought into existence to implement some administrative policies or to determine controversies arising out of administrative law. They are similar to courts but are not courts.

    Union of India v. T.R. Verma 1957 AIR 882

    Quasi judicial Tribunals are merely fact finding bodies. Hence, the strict rules of evidence need not be applied to them. They will merely be governed by principles of natural justice.

    Central Bank of India v. P.C. Jain 1969 AIR 983

    Indian Evidence Act doesn’t apply to domestic tribunals.

    AFFIDAVITS

    The definition of evidence under Section 3 of the Indian Evidence Act is excluded from the meaning of evidence and is also explicitly avoided under Section 1 of the said Act. In this way, affidavit is a personal oath or affirmation based on person’s own knowledge.

    An affidavit is merely a statement under oath on paper but a witness appears for a cross examination. Then he either confirms or differs the contents on oath before the court. Now, his statement becomes evident (called his deposition). The court does not take affidavit as a final evidence but instead whatever is stated in the court.

    Rachapalli Abbulu & ors. v. State of Andhra Pradesh 2002

    This practice adopted by the police of taking advance affidavit if all witnesses is an attempt to befool and dissuade illiterate witnesses to speak truth or exactly what they have given in affidavit which may be cooked up. It shows affidavit must necessarily have been cooked up otherwise there was no need to do so. This amounts to intervention with criminal justice system.

    Niranjan Lal Ratan Kumar v. River Steam Navigation Co. 1967

    The affidavit of a person not produced in the court is not admissible in evidence.

    However, affidavits can be considered as evidence in some cases.

    Radhakrishnan v. Navratan Mal Jain AIR 1990 Raj 127

    Affidavit filed by parties without giving an opportunity of cross-examining the deponent cannot be treated as an evidence by virtue of Section 1.

    If Income Tax Authority does not call a deponent to cross-examine, it is presumed that they have accepted the affidavit.

    Sohan Lal Gupta v. Commissioner of Income Tax 1958

    A rejection of an affidavit by the Assessing Authority of Income Tax is not justified till the assessee who is the deponent has been called upon and cross-examined to provide proofs in favor of his affidavit. An affidavit can’t be rejected straightaway, not even by Tribunal merely on the ground that no documentary evidence has been filed in support of the affidavit. Rejection of an affidavit filed by an assessee is not justified until and unless the assessee has either been cross-examined or called upon to produce evidence in favor of his affidavit.

    ARBITRATION

    The Act in clear terms doesn’t have any significant bearing to the arbitral method. As a result of which arbitrator isn’t limited by the specialized standards of evidence except, if the fundamental principles of fairness and well-established principles of evidence are not disregarded.

    Haralal v. State Industrial Court A 1967 B 174

    The very object of submission to an arbitrator is to have an expeditious dispute solving without getting into the tedious and elaborate procedure of a regular trial or technicalities.

    Jatan Builders v. Army Welfare Housing Organization, 2009 AIHC 2475

    Arbitrator can evolve a procedure, which complies with the principle of natural justice for conduct of the proceeding. However, even if the provisions of the Evidence Act are not taken into consideration, still the parties and the arbitrators cannot override or ignore the contractual terms and act contrary to it.

    CONCLUSION

    Indian Evidence Act 1872 has introduced a set of rules to be applicable all over India. It is used by courts in both civil as well as criminal proceedings. Section 1 provides both territorial and subject matter jurisdiction. Subject matter includes both negative as well as positive jurisdiction. It applies to all judicial proceedings in or before a court. It does not apply to affidavits and arbitration.

    REFER:

    https://lawsisto.com/uploads/reports/Report185P2.pdf