Report No. 185
This Section says: 'Judge to decide as to admissibility of evidence'.
It reads as follows:
"136. When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact."
There are four illustrations below Section 136. Illustration (a) shows that if person relies on the statement of a person alleged to be dead, under Section 32, he must prove the death of that person. Illustration (b) says that if a person wants to prove a copy on the ground that the original is lost, he must first prove the loss of the original. Illustration (c) refers to a case where when there was a charge against a person that he received stolen property knowing it to be stolen, the person denied even possession of the property. In such a case, the relevancy depends on the identity of the property.
The Court may, in its discretion, either require the property to be identified before the denial (of the possession) is proved, or permit the denial to be first proved before the identity is proved. Illustration (d) states that if it is proposed to prove a fact A, which is said to be the cause and effect of a fact in issue, then there are several intermediate facts (B, C and D) which must be shown to exist before the fact A can be regarded as the cause or effect of the fact in issue, the Court may, either permit the fact A to be proved before proof of facts B, C or D is proved, or may require proof of facts B, C and D before permitting proof of A.
Questions of admissibility, being questions of law, have to be determined by the judge. Section 5 of the Act declares that "evidence may be given in any suit or proceeding of the existence or non-existence of every 433 fact in issue and of such other facts as hereinafter declared to be relevant and of no others". Relevancy and admissibility are not the same always. Relevancy is based on commonsense and logic while admissibility is governed by rules of law.
Take the case of an unregistered document affecting immovable property of value more than Rs.100. It may be relevant but it will be inadmissible in evidence for want of registration except as stated in the proviso to Section 49 of the Registration Act. Likewise, a statement made under Section 162 of the Code of Criminal Procedure, 1977 may relate to relevant facts but the statement is inadmissible.
Para 2 of Section 136 has to be read with Section 104 and the two illustrations attached thereto. Section 104 deals with 'burden of proving a fact to be proved to make evidence admissible'. The two examples there given are similar to Illustration (a) and (b) below Section 136.
Order 13 Rule 3 of the Code of Civil Procedure, 1908 states that the Court may, at any stage of the suit, reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection. Order 13 Rule 4 requires an endorsement by the Court as to whether a document is admitted in evidence in the suit. Order 41 Rule 27 permits appellate Courts to permit additional evidence to be adduced.
As pointed in para 76.6 of the 69th Report, in India, the judge has no discretion to exclude evidence if it is relevant and admissible and is not excluded by any provision of law. In some cases, the Court has some 434 limited powers to permit a party to cross-examine his own witness. But in England, the Courts' powers are wider. A discretion is recognized, at least in criminal cases, particularly when the evidence is prejudicial to the accused.
We agree with recommendations in para 76.10 of the 69th report that Section 136 does not require any amendment.