LAW OF EVIDENCE
History and Development
- In the ancient period, there has been elaborate discussion of the rules of evidence in Sanskrit books. However, not much information is available in the Muslim period in respect of the Law of Evidence.
- In 1726, the rules of evidence prevailing in England under Common law and statute law were introduced in India.
- During 1835-1855 at least 11 enactments in this area of law were dealt with. In 1868, a draft was prepared by Sir Henry Sumner Maine which was found unsuitable for the country.
- Sir James Stephen in 1872 prepared the Bill for the Act as in present day, who was entrusted with the same work in 1871.
- Most States had already adopted this Act before even the Constitution came into force. The Law of Evidence which came into force in 1872 continues to be applicable to this day with least changes being made in the past.
Object and Scope of Study and Appreciation of Evidence
Relevance and Function of the Law of Evidence
- In the process of delivering justice, Courts not only have to go into the facts of the case but also ascertain the truthfulness of such assertions made by the parties. To ascertain these facts, the Law of Evidence plays an important role, being the procedural law in this aspect
- It is this procedural law that provides in itself how facts are to be proved and when the same will be regarded as relevant by the Court in the administration of justice.
- It helps judges in deciding the rights and liabilities of the parties arising out of the facts presented to him for further application of the relevant laws.
- Thus, the law of evidence lays down the principles and rules according to which the facts of a case may be proved or disproved in the Court of Law.
- It helps the Courts in preventing the wastage of time upon irrelevant issues.
- In the case of Ram Jas v. Surendra Nath, it was held that, the law of evidence does not affect the substantive rights of the parties but facilitates the course of justice. It lays down rules of guidance for the Courts. It is procedural in nature, proving how a fact can be proved
Preamble, Short Title and Commencement
- This Act comes into force on September 1, 1872.
- Section 1 of the Act states that this Act is applicable to the whole of India except J&K.
- It applies to all judicial proceedings in or before any Court, including Courts Martial other than Courts Martial convened under the Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act or the Air Force Act.
- A judicial proceeding is one wherein the object of it is to determine a jural relation between one person and another or a group of persons or a person and the community in general. A judge without such object in mind does not act judicially. Further, Section 2 (i) of the CrPC, a state that a judicial proceeding is one in which evidence is or may be taken legally on oath. Ex: an execution proceeding, a proceeding under Chapter IX of the CrPC etc.
- A non-judicial proceeding is an enquiry about the matters of facts where there is no discretion to be exercised and no judgment to be formed, but something to be done in a certain event, a duty. It is said to be administrative in nature. EX: an enquiry by a Collector under the Land Acquisition Act, a contempt proceeding, a departmental enquiry held for police officers, etc.
- This act applies only to native Courts martial and proceedings before the Indian marine Act.
- Further this Act does not apply to affidavits presented to any Court or Officer, nor to judicial proceeding before an arbitrator.
- The Act does not apply to affidavits; however affidavits are used as a mode of proof. The courts may take into consideration all facts alleged in the affidavit if not controverted in the counter-affidavit. Provisions for affidavits are in both the CPC and CrPC.
- An arbitrator is not bound by the strict rules of evidence as the object behind an arbitrational proceeding is to avoid the elaborate procedure of a regular trial. Further, not acting in accordance with the rules of evidence cannot be brought as a cause of action against the arbitral award as given by him. An arbitrator is expected to follow the rules of natural justice only.
- Lex Fori: this phrase means the place of the action. It was held by the House of Lords, “the law of evidence is lex fori which governs the courts; whether a witness is competent or not, whether a certain evidence proves a fact or not, is to be determined by the law where the cause of action arises, where the remedy is enforced and where the court sits to enforce it.” Thus, when evidence is taken in one country for a suit or action in another country, the law applicable to the recording of evidence would be the law prevailing in the country where the proceeding is going on.
Scope of the Evidence Act
- The Act is a complete code in itself repealing all those rules of evidence except those as explicitly mentioned in the proviso to Section 2. There are many statues which supplement the Evidence Act. Some of them are: Bankers Book Evidence Act, CPC, CrPC, TOPA, Divorce Act, Stamp Act, Succession Act, Commercial Documents Evidence Act, etc.
- The Act, deals particularly with the subject of evidence and its admissibility. It is a special law. Hence, no rule as stated in the Act is affected by any other statute unless otherwise specifically mentioned.
- Evidence excluded by the Act is inadmissible and should not be admitted merely because it may be essential in the ascertainment of truth.
- Parties cannot contract themselves out of the provisions of the Act.
- If evidence is tendered, Courts are to check whether such evidence is admissible under the Act.
Evidence and Proof
(Symbiosis Law School, Noida)