Report No. 185
This Section is contained in Chapter XI which bears the following headin.- "No new trial for improper admission or rejection of evidence." It reads as follows:
"167. The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the avidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence has been received, it ought not to have varied the decision."
The word 'decision' applies to both civil and criminal cases. The Section recognises and affirms a principle which has been applied in several cases both before and after the passing of the Evidence Act. The rule laid down in the Section is applicable to civil as well as criminal proceedings in a Court. (R v. Abdul Rahim : AIR 1946 P.C. 82). See also Mohar Singh v. Ghuriba: 8. Beng LR 495 = 15 WR 8 (PC).
As regards rejected evidence, the question is not so much whether the evidence rejected would not have been accepted against the other testimony or record as to whether 'that evidence' ought not to have varied the decisions' (Narayan v. State: AIR 1959 SC 484).
Section 99 of the Code of Civil Procedure and Section 465 of the Code of Criminal Procedure lay down similar principles as mentioned in this Section.
The expression "the Court before which such objection is 'raised'", includes the appellate Court also (R v. Pitamber ILR 2 Bom 61).
In Stewart v. Hancock AIR 1940 PC 128, the Privy Council stated that in order that an alleged wrongful admission of evidence may be a ground for a new trial, it must have caused substantial wrong or miscarriage of justice where certain evidence was admitted conditionally subject to proof of other matters, there was a sufficient direction that unless those conditions were fulfilled, it was not evidence to the case, and no substantial wrong can be said to have occurred.
If a statement under Section 313 of the Code of Criminal Procedure cannot be taken as evidence, there is no question of drawing upon Section 167 (Ranjit Mandal v. State : 1997 Crl LJ 1586 (Cal).
There is indeed a large body of case law relating to the scope of interference by appellate courts, civil and criminal, and in regard to the discretion of the courts. It is not necessary to refer to them.
The 69th Report stated that it was not recommending any amendment to Section 167 and we agree.