This article has been written by Deyasini Chakrabarti from KIIT School of law, Bhubaneswar, Odisha. This article mainly focuses on the Indian Evidence Act, 1872 – its basic meaning, concepts, extent and applicability along with case references. 

Introduction

The dynamic changing society fails to believe in the words of mouth, rather they prefer written, documented statements to believe the facts of the same. Thus, evidence plays a very important role in establishing the occurrence of events that had taken place or which gradually would be taking place. Therefore, in order to establish the happening or non-happening of events, evidence also plays a very important role in the Court of Law.

The law of evidence is therefore based on reasoning and logic. Without a proper piece of evidence to determine the merit of the case in the Court of the Law, there will be much delay in trial to ascertain and give justice to the people. Thus, the very idea of the formation of the Indian Evidence Act is to give power to the judiciary and help them to decide the case and give a verdict of conviction and acquittal depending on the facts and evidence brought before it. Therefore, the Indian Evidence Act is a mode or an instrument through which the court upheld its functions by reaching the truth of each case.

Meaning Of Evidence

When we hear the word ‘Evidence’ the first word with which we could associate it is the word prove. Therefore, the word ‘Evidence’ is derived from a Latin word ‘evidera’ which means to discover clearly or to ascertain. Some of the Jurists had defined evidence as:

• 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”. 
• Taylor describes evidence “all the means or the instruments which tend to confirm or deny any matter, the occurrence of events and truth of which is being submitted for judicial investigation. 
• Bentham however, had characterized ‘proof’ as any self-evident certainty, propensity and the structure of which is to deliver in the brain an influence positive or disaffirmative, of the presence of some other obvious truth.
• According to Stephen evidence is the words uttered and things exhibited by the witnesses before a Court of Justice. 

Thus, it means the facts proved to exist by words or things and regarded as grand work of inference as to other facts which are not so proved. Thus, the evidence is a medium or instrument through which justice could be met out by the proper discovery of the facts of the case. 

However, Section 3 of the Indian Evidence Act 1872, states that “Evidence” means and includes: 

1. All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of facts under inquiry;
2. All documents which also include electronic records produced for the inspection of the Court; such documents are documentary evidence. 

Thus, to determine and distinguish the disputed facts, evidence plays a very important role in it. It’s very objective is to determine or conform to the controverted question of fact in the judicial proceedings, hence evidence is the judicial investigation based on logic and reasoning.

Background Of The Indian Evidence Act 

In order to know about the history or background of the law of evidence, 3 periods are needed to be taken into consideration. Those are:

• The Ancient Hindu Period 

The very foundation of the Law of evidence which is existing in our Indian society is the Hindu Dharmashastra. As per the Dharmashastra, the purpose of conducting any trial is the desire to find and ascertain the truth. It emphasized that an appointed authority or a judge should find out the truth by utilizing his expertise and is ought to remove the double-dealing like a doctor taking out from the body an iron dart with the assistance of the careful instruments.

• The Ancient Muslim Period

The English Law of evidence was not the Law of the Mofussil Court. On the other hand, the Mohammedan Criminal law including the Mohammedan law of Evidence was no longer the law of the country, and even though the Mohammedan Law was abandoned, the English Law of evidence was not substituted in its place.

• In the British Era

In British India, the administration courts by ideals of the Royal Charter build up in Bombay, Madras and Calcutta were adhering to English standards of the law of evidence. In Mofussil courts, outside the administration towns, there were no clear standards identifying with the Law of Evidence. The Courts delighted in liberated freedom in the matter of affirmation of proof. The whole organization of equity in the Mofussil courts, without any positive principles in regards to the Law of Evidence, was in all-out mayhem. 

There was a desperate need for the codification of the principles of law. In 1835, the main endeavour was made to arrange the principles of evidence by passing the Act, 1835. Somewhere in the range of 1835 and 1853 around eleven enactments were passed managing the Law of Evidence. In any case, every one of these enactments was discovered insufficient.

In the year 1868, a Commission was set up under the chairmanship of Sir Henry Mayne. He presented the draft, which was later discovered inadmissible to Indian conditions. Later in the year 1870, this task of codification of the standards of the Law of Evidence was dependent on Sir James Fitzjames Stephen. Stephen presented his draft and it was alluded to the select council and furthermore to High Courts and individuals from Bar to evoke the conclusion, and, in the wake of social occasion feeling, the draft was put before the governing body and it was instituted. Finally, “The Evidence Act ” came in to force on first September 1872.

Before Independence, there were upwards of 600 princely states in India, which were not inside the locale of the British arrangement of equity. Every one of these states had its own principles of the Law of Evidence. Be that as it may, all things considered, followed the Indian Evidence Act, 1872. After independence, there was a merger of princely states into the Indian Union. Both the substantive as well as procedural laws have been made consistently relevant to all States, regardless of whether the British region or native States. The Law of Evidence is presently material to all States establishing the Union of India.

Territorial Extent as per The Indian Evidence Act, 1872

Part 1, Chapter 1 and Section 1 of the Indian Evidence Act, 1872 state about the extent of the Indian Evidence Act. It plainly expresses the way that the Indian Evidence Act, 1872 reaches out to the whole of India aside from the territory of Jammu and Kashmir. It additionally 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.

Applicability of The Indian Evidence Act

Concept

As already stated in Section 3 of the Indian Evidence Act, 1872 that it also deals with its applicability. Evidence is the law of those matters which are completely governed by the law of the country in which the proceeding takes place irrespective of the fact whether a witness is competent or not, whether certain evidence proves certain fact of not. Therefore, the lex fori determines all the questions which are related to the admission or rejection of evidence. 

Relevant Cases based on the Application 

 Section 3 of the Indian Evidence Act 1972, also defines what a Court is. As the above-mentioned Section, the Court incorporates all the appointed authorities or judges and Magistrates, and every other individual, with the exception of arbitrators who are lawfully authorized to take evidence. 

• Likewise, an enquiry is judicial if the object of which is to be resolved has a jural connection or relation between one individual and another or a group of people; or between him or the community generally. 

It had been held on account of Queen v. Tulja (1887) 12 Bom. 36, 42 that an enquiry where evidence is lawfully taken can be remembered for the term of the judicial proceeding.

• In any case, an enquiry about issues of reality wherein no discretion is practiced or no judgment is to be framed, however, some are being done as a specific method for an obligation or duty, then at that point, it forms administrative enquiry rather than a judicial enquiry. 

Similarly, in the case of,  Queen-Empress v. Bharma (1886) 11 Bom. 702 FB, it had been held that procedure before a Magistrate who isn’t authorized to direct an enquiry is not a judicial proceeding in any case. 

• It had been held in the case of Munna Lal v. State of U.P AIR 1991, All 189, 1991 Cr LJ 1893, that a Family Court also falls inside the ambit of the significance and articulation of Court. 
• The statutory provisions additionally don’t have any significant bearing before an arbitrator. Consequently, an arbitrator will undoubtedly comply with the standards of natural justice. They are not limited to the specialized technique of the rule of evidence.
• The Indian Evidence Act additionally doesn’t also apply to the affidavit. 

Different Views And Decisions As To The Applicability: Important Findings

Prior to Independence, the Act was applied to what was known as the “British India” and “British Burma”. However, the definition of “British India” was amended under Section 3(5) of the General Clauses Act, 10 of 1897. In this way, 26 January 1950, India pronounced itself as a Sovereign, Democratic, Republic and immediately Burma was likewise announced as the Independent Republic from 23rd March 1956.

⊗ Judicial proceeding

• The term Judicial Proceeding is defined under this Act. However, it had been held by Justice Spankie in the case of R v. Gholam (1875) ILR 1 All 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 Court has to perform administrative or executive and legal obligations all together so that in a judicial proceeding, the adjudicator or the magistrate must act in a judicial capacity.

⊗ Evidence Act if applicable to the arbitration procedure 

• 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.
• Thus, it had been held in the case of Haralal v. State Industrial Court A 1967 B 174, that the rules of Act don’t apply to the procedures before an arbitrator. 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.  
• Even if the Indian Evidence Act doesn’t apply to the arbitration procedure still it had been held in the case of Jatan Builders v. Army Welfare Housing Organization, 2009 AIHC 2475 ( 2485) (Del.) that 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. 
• It is not a valid objection to the award that the arbitrators had not acted in strict conformity with the rule of evidence. This had been held in the case of Ganga v. Lekhraj (1887) ILR 9 All 253, that arbitrators are bound to conform to the rules of natural justice. 
• Even in the case of Hoogly River Bridge Commissioners v. Bhagirathi Bridge Construction Co.(1995) 1 Cal LJ 489; AIR 1995 Cal 274, it had been held that the Court is absolutely not worried about the merit of the case. However, the principle of natural justice and reasonable or fair play in real life requires some basic evidence either oral or documentary before the arbitrators which would empower them to arrive at a just and reasonable conclusion.

⊗ Affidavits 

• The definition of evidence is excluded from the meaning of evidence under Section 3 of the Indian Evidence Act and is also explicitly avoided under Section 1 of the said Act. In this manner, affidavit is a personal oath or affirmation which is based on a person’s own knowledge. 
• Affidavits per se don’t become evidence in suits, however, it can become evidence just by the assent of the parties or where it is exceptionally approved by any provisions of law. 
• However, in the case of Shamsunder v. Bharat Oil Mills AIR 1964 Bom 38, it had been held that affidavits can be used as evidence if, for sufficient reasons, the Court passes an order under Order 19, rule 1,2 of the Code Of Civil Procedure 1908. It, therefore, stated that an affidavit cannot be treated as evidence unless an order has been passed under Order 19 of the Code of Civil Procedure. 
• In the case of Radhakrishnan v. Navoraton Mal Jain A 1990 Raj 127, 130, it had been held that when there was no order of the court under Order 19 rule 1, affidavits filed by the parties without giving them the opportunity of cross-examining the deponents, cannot be treated as evidence. 

⊗ Affidavits filed suo moto

• An affidavit that is recorded suo moto by a party without having any direction from the Court can’t be named as false evidence. But it had been held in the case of  Delhi Lotteries v. Rajesh Agarwal AIR 1998 Del 332, that no action under the Indian Penal Code can be taken against the deponent.

⊗ Affidavits in Interlocutory application

• Where the Court is explicitly allowed to choose the interlocutory issues on affidavit, it draws the provision of Order 19 Rule 1 and 2 of the Code of Civil Procedure which can’t be squeezed into service. It, hence, brings the terms and impediments endorsed by request 19 rules 1 and 2 will be connected just if the Court practices the general authority or power which is vested in it. 
• The scrutiny of wordings of rule 1 of Order 39 unmistakably shows that interlocutory application for interim injunctions, the Court had been explicitly allowed by the legislature itself to choose such applications on affidavit.
• On account of B.N. Munibasappa v. G.D. Swamigal AIR 1959 Mys. 139, the Mysore High Court held that while it would not be right to state that evidence can’t be viewed as evidence despite the fact that its property delivered under rule 1, and 2 of Order 19 of the Code of Civil Procedure, therefore plainly an affidavit can never replace an evidence recorded in a common manner except, if the case is one to which the arrangement of the provisions apply or the evidence identifies with an issue like an application for a connection or an order as to which the code itself had made express opinion.
• In the case of Kailash Nath Agarwal v. Amar Nath Agarwal AIR 1969 All 82, it had been held that by importing legal fiction, the affidavits on record of the proceeding may also be placed by the Civil Court as affidavit under Order 19 of the Civil Procedure Code and may also be filed or read in evidence and cross-examination may also be permitted. 

⊗ Domestic enquiry 

• In the case of State of Haryana v. Rattan Singh AIR 1977 SC 1512,  it had been held that the rule of evidence under the Evidence Act may not apply to the domestic enquiry. Similarly in the case of K.L. Shinda v. State of Mysore AIR 1976 SC 1080, the rule of evidence doesn’t apply to departmental proceeding as well. 
• However, again there is a contradictory view in the case of Balkrishna Mesra v. Presiding Officer, Orissa (1977) 35 Fac LR 11 (SC), that there is no bar on the part of the competent authority to rely on evidence in disciplinary proceedings.

⊗ Applicability of the Act to Tribunal 

• It is an established fact that domestic tribunals are not bound by the specialized principles of methodology as are contained in the Evidence Act. 
• On account of B.Bhimrajee v. Union AIR 1971 Cal 336, it had been held that the rule of evidence has no application in the departmental proceeding and the examination witnesses need not be in the request set somewhere around the said Act. 
• Specialized standards of the Evidence Act don’t make a difference to the residential enquiry yet substantive rules which structure the part of the principle of natural justice, such that it can’t be disregarded in Domestic Tribunals. This had been held on account of Central Bank v. P.C.Jain AIR 1969 SC 983.
• The Act has no application to enquiries directed by the Courts despite the fact that they might be legal in character. It had been held in the case of Union of India v. T. R. Verma AIR 1957 SC 882, that it is the requirement of law that such Tribunals ought to watch rules of natural justice in the conduct of enquiry.

⊗ Application of the Act to the Commissioner 

• The Evidence Act doesn’t strictly apply to enquiries conducted by domestic Tribunals. This had been held in the case of Ahmed v. Chief Commissioner AIR 1966 Mani 18. 
• However, a Commission appointed by Code Of Civil Procedure and Code of Criminal Procedure has the power to summon the witness and evidence, and the rules of evidence apply to the proceedings before him. 

⊗ Applicability of the Act to Labour Courts

• All the technicalities of the Evidence Act are not strictly applicable to Labour Courts and Tribunals, except in so far as Section 11 of the Industrial Disputes Act 1947 and the rules therein are permitted. This had been held in the case of Bareilly Electricity v. Workmen AIR 1972 SC 330. 
• However, it had also been held in the case of Leonard Biermans v. Second Industrial Tribunal AIR 1962 Cal 375 that a proceeding before an Industrial Tribunal is merely a quasi-judicial proceeding and the evidence is not applicable to such proceedings. 
• Even in some cases, there has been contradictory views. In the case of Raghu v. Burrakur Coal Co. Ltd AIR 1966 Cal 504, it had been held that it is a Court under Section 3 of the Indian Evidence Act, and therefore it must observe the rules of evidence and natural justice. 

⊗ Applicability to Income tax authorities

• Income tax authorities are strictly not bound by the rules of evidence. 
• This view had also been laid down in the case of Commissioner of Income-tax v. East Coast AIR 1967 SC 768. 

⊗ Proceedings under the Contempt of Courts Act 

• The provisions of the Evidence Act also do not apply to the reception of materials against the contemnor in a contempt proceeding. This had been established in the case of Basanta Chandra Ghosh, in the matter of AIR 1960 Pat 430. 

Conclusion 

The Indian Evidence Act, 1872 is so vast and its implications and interpretations are wide. The application of the above Act though mostly depends upon the statutory provisions but depending upon the circumstances, nature of the case along with the underlying principles of natural justice the application also varies hugely. However, the very objective of the Evidence Act is meted out that is the Court has to find out the truth on the basis of the facts brought before the Court by the parties to meet the ends of justice as expeditiously as possible. Thus, the Rule of Evidence is not to put limitations and restrictions on the parties rather it acts as a guiding factor for the Courts to take evidence. 

Reference 

1. Law of Evidence: Sarkar, 19th Edition Vol. 1.
2. Law of Evidence by H.K. Saharay and M.S. Saharay.
3. Law of Evidence; Batuk Lal.
4. https://shodhganga.inflibnet.ac.in/bitstream/10603/148732/8/08_chapter%202.pdf