LAW COMMISSION OF INDIA 185 th Report on Review of the Indian Evidence Act 1872

1. LAW COMMISSION OF INDIA185th Report on Review of the Indian Evidence Act 1872 by Justice M.J.Rao, Chairman

2. 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

3. Definitions-Section 3Interpretation 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

4. Substitution of Section 10Things 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………

5. ….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’

6. 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

7. 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

8. …..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* 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…… law: Differing from 69th Report

9. …. 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 69th Report

10. 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……

11. …. 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)

12. 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……..

13. 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]

14. 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

15. 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………

16. ……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……

17. 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………..

18. ….section 27 contd 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. Contd….

19. ……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

20. 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.

21. 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.

22. 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

23. 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…..…

24. 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)

25. 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…

26. 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.

27. 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

28. 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

29. 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.

30. 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

31. 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’.

32. 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.

33. 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

34. 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…

35. 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.

36. 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.

37. 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…

38. 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).

39. 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…

40. 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.

41. 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.

42. 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.

43. 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’.

44. 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.

45. 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…

46. 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).

47. 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…

48. 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 • Further the document under section 92A must not the basis of the suit or defence. • This is also adopted from UP Amendment of 1954.

49. 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

50. 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.