LAW OF EVIDENCE. THE JNDIAN EVIDENCE ACT’ (ACT 1 OF 1872) Recewed the G -G*s assent on March 16, 1872 Wneneas it 15 expedient to consolidate, define and amend the Preambie Jaw of Evidence , Tei Herebf enacted'as follows — COMMENT —The object of the preamble of an Act 3 to snditate what, 22 general terms, was the object of the Legislature in passing the Act The preamble here shows that the Indian Evidence Act 1s not thevelj"8 tragmenta ary enactment, ue consclidatory one ‘The Act reduces the English law of evidence to the form of express proposi- tuons arranged in thesr natural order with some modifications rendered necessary by the peculiar circumstances of India It 18, in the main, drawn on the lines of the English taw of evidence ‘The word ‘evidence’ 1s derived from the Latin word goudens enidera, which means “ to show Hemi, to make clear 0 the 8 Sight, to discover clearly to make plainly certain, to ascertain ‘Before the passing of the’Indian Buidence Act, the prinesples of ‘Enghsh law ‘of evidence were followed by the Courts in Indiain presidency-towns In the mofussil ‘Muhammadan law of evidence was followed for some tyme by British Courts, but subsequently various regulations, dealing with principles of evidence, were passed for the guidance of mofussil Courts Act II of 1855 partially codified the law of evidence But it did not affect the practice m vogue in mofussil Courts In 1863 ‘Mr (afterwards Sir Hency Summer) Maine prepared a Draft Bill of the Law of Ehiaeite, but it was abandoned as not sued to the country In 1871 ‘Mr (afterwards Sir James Fitz-James) Stephen! prepared a new draft which was passed a3 Act Tof 1872 One great object of the Evidence Act is to prevent Jaxity in the admusmbility of, ., and to introduce a mare correct and_tinit farm ale ‘of practice. than was previously 3n vogue The Act 1s not mtend@d"te "do more than preseribe rules for the admussibility or othermse of evidence on the aue as to which the Courts have to record findings "The main principles which underlie the law of evidence are— (1) evidence must'be confined to the matter in tssue (2) -hearsoy evidence must not be admitted, and (8) best evidence must be given in all cases2 THL LAW OF EVIDENCE [ouar x ‘The Indian Evidence Act dors not contain the whole law of evidence applicable to British India Besides the Hividence Act there are other Acts of the Indun Lequlature and Statutes passed by the Parliament which make specific provisions ‘on matters of evidence aad which ‘are appheable to Buitish India Where, there- fore, the records of a German Court were not authenticated 1n accordance with the Indian Evidence Act, fut in the manner prescribed by the Enghsh Extradition ‘Act, which 1s applicable to this country, the records were held admissible under 1t* ‘Once a statute'ts passed, which purports to contain the whole law, 1 25 tn.- perative Its not 6pen to any Judge to exerewe a dispensing power, and adroit evidence not adguasible by the statute, because it appears to lum that the arre- gular evidence would throw light upon the issue ‘The principles of exclusion of evidence adopted by the Act must be applied strictly and cannot be relaxed at the discretion of the Court * PART I. Renevancy oF Facrs CHAPTER I PReLmary. 1 This Act may be called the Indian Evidence ‘Shor atte Act, 1872 ¥ . It extends to all the Provinces of India* and apphes'to all yudicial proceedingst in or before any Court,? including Courts-martial, other than Courts martial convened under the Army Act, the Naval Discipline Act or that Act as modified by the Indian Navy (Discipline) Act, 1984, or the Ar Force Act but not to affidavits* presented to any Court or officer, nor to proceedings before an arbitrator ,¢ , amavenena ve , Andat shall come ito foree on the figst day af ae September, 1872 as COMMENT —the Indian Evidence Act extends to the whole of Bntsh Toda ‘Brush India means, as respects the period before the commensemert of Part IIT of the Government of India Act, 1935, all territones and, places within Vis Majesty's dominions which were for the tune being governed by His Majesty through the Governor General of India or through any Governor or officer subordt nate to the Governor General of India, and as respects uny period after that date means all territories for the time beng compnsed within the Governors! Proviners and the Chief Commussioners’ Provinces, except that a reference 1o British India Beteat 1 Rudolf Statimonn, In re, (LOLI) A 84, [1941] 1 Cal 408, Emperor ve 30 Cal led, King-Emperor v" Tun Parbhoo, [1941] All 843, x 5 ‘Hang, (1923) 1 Han 759, Pm, Re © Asamended by the Indian Tnde- “innavi Muttariyan, (1918) 30Mad 449° pendence (Adaptation of Central Acts 3 Sms Chandra Nandy v Rakhala- and Ordiances) Order, 1943° nanda, (1940) 43.Bom LR 794,68 ISECs 1-3] » PRELIMINARY 8 in an Fadian law passed ot rhnde before the commencement of Patt IIT of the Government of India Act, 1935, shall not include a reference to Berar * ‘The Indran Evidence Act applies to all judicial proceedings before (a) any Court, oF (6) a Court-martial under the Indian Army Act, VIII of 1911 (3 88) It does not apply to (a) affidavits, and (0) proceedings before arbitrators “The tow of evidence fa the lez fort which governs the Courts Whether 0 witness 15 competent or not. whether certuin matter requises to be proved by writing or not whether certain evidence proves a certain fact or not, that 19 to be determined by the law of the country where the question arises, where the remedy 18 sought to be enforced, and where the Court sits to enforce at"? ‘The Jaw of evidence 1s 2 parteof the Inw of procedure ~ 1‘ Judiclal proceedings '—An inquiry 1 judionl if the object of 1b 19 to determine a°faral relation) between one person and, another, or a group'8f persons , or Betweeir ‘and the community generally, but, even a Judge, actrag without such an obyect tn view, 16 not acting judicially * “An enquiry m which evidence ally taken 1s included 1m the term judicial proceeding # An mquiry about walters of fact, where there 1 no discretion to be exercised and no judgment to ‘be formed but something 19 to be done in a certain event as_a duty, 1 not a yudicral but an administrative inquiry Proceedings before aSispistrate under 4&8 of the ‘Cnminal Procedure Code are not judicial proceedings tinder *4(d) of the Code * ‘Stuularly, proceedings before a Blagintrate not authorised to condnct an inquiry,* or before a Collector under the Land Acquisition Act,’ are not judicial proceedings 2 ‘Court '—Ths word meludes all persons, except arbitrators, legally authorised to take evidence (s 3) : 3‘ Affidavits "Affidavits are confined to such facts as the deponent 1s able of lus own knowledge to prove Matters to which affidavits are confined are regu- lated by @ XIX, 17 1, 2 and 8, of the Civil Procedure Code, and by s 589 of the €nmunal Procedure Code A declaration 1n the shape of an affidavit cannot be received as evidence of the facts stated im it * 4 ‘Arbitrator "The provisions of the Evidence Act do not apply to pro- ‘ceedings before an arbitrator Arbitrators are bound to conform to the rules of natural yusticé ‘They are untéftered’by technical rules of evidence * Repeal of 2 [Repealed by the Repeahng Act, 1938 (I of ments 1938), s 2 and Sch ] 3 In this Act the following words and expressions are used in the following Senses ante & eenteary intention appears Toterpreietonclaw® from the context — Coust” includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take Sue “court* 5 cfeneral Clausen Act (X of 1897), 3 Han v Whitehaven and Furness Junchon Ravkeay Company, (1850) 3 HLC 1,19 *Queen-Empress ve Tula, (1887) 12 Bom, 36, 42 ~ © Toe " The Collector of Benares v Sheo Prasad, (1883) 5 All 487 4 Queen-Emprees v Bharma, (1886) 1 Bom 102 FB 7 Ezra _y The Secretary of State, (1902) 30 cat_26 * In re Iswar Chander Guho, (1887) Supp % Goandecharyor, (3887) juppu v Govindacharyar, (1887) SEE