LAW COMMISSION OF INDIA 185 th Report on Review of the Indian Evidence Act 1872. by Justice M.J.Rao, Chairman.
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Justice M.J.Rao, Chairman
The 7th Law Commission presided by Justice Gajendragadkar submitted its 69th Report on the Evidence Act in May 1977In 1995 it was referred back to Law Commission on the ground that 18 years have passed since its submissionPresent Report has considered every section of the Indian Evidence ActReviewed the recommendations of 69th ReportAccepted some of the amendments proposed & has recommended new provisions also This presentation is confined to actual amendments proposed
5 new amendments proposed in section 3
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………
….Contd Section 10
The section uses the words “in reference to their common intention
Controversy was if these words mean ‘in furtherance of’
The proposed amendment accepts the view of the Privy Council & Supreme Court and
Substitutes ‘in furtherance of’ for ‘in reference to’
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
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 question
Explanation I is inserted to confirm the view that a judgment not inter-parties is a transaction within the meaning of section 13 ; and
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……
Differing from 69th Report
…. Section 13 contd question
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
Differing from 69th Report
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
…. Section 21 Contd and by or on their behalf
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)
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 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]
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
Controversial Issues raised under this section are the subject matter of conflicting judgments of the Supreme Court and High Courts
… be proved…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……
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
….section 27 contd be proved
In the 69th Report it was recommended that facts discovered out of confessions made under inducement threat or promise (sec.24) should not be admissible at all.
……section 27 contd Ref sec.24 be proved
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
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 32 contd… dead or cannot be found
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 contd… proceeding for purposes of a subsequent proceeding, where the witness is dead etc.
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.
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.
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 casesIn 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
Section 57A: Court to take judicial notice of certain matters relating to foreign states regarding recognition of a Government/Head of State
Section 57A contd.. matters relating to foreign states regarding recognition of a Government/Head of State
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.
Sec. 65 Contd… document may be given.
Sections 66-72 contd… document may be given.
Section 90: Presumption as to genuineness etc. of old documents contd …
Section 108: Contd… has not been heard for 7 years
Section 108 has not been heard for 7 yearsA : Contd…
Section 112 Contd… legitimacy except in certain cases.
Section 114 Contd… legitimacy except in certain cases.
Following two earlier Law Commission 69th & 88th 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.
Sections 123 and 124 Contd… proceedings
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
Sections 123 and 124 Contd… proceedings
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 88th 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
In line with law in other countries and judgment of European Court and after referring to earlier Law Commission Reports, viz 69th,93rd and 173rd Reports
section 132A is proposed
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.
These are new and are on lines in other countries and deal with privilege of such statutory agents.
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.
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.
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.
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