Report No. 185

Section 21

Section 21 refers to 'proof of admissions against persons making them, and by or on their behalf'.

The section reads as follows:

"section21: Proof of admissions against persons making them, and by or on their behalf: Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:-

(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32.

(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission."

There are five illustrations below section 21.

The 69th Report felt that the opening paragraph was incomplete (see para 9.60 of the Report) as it does not cover the following aspects covered by secs. 18 to 20 and that the opening clause may cover clause (a) and that the contingencies covered by secs. 18 to 20 may be added as clauses (b) to (d) in proposed sub-section (1) of section 21. Existing sub-section (3) could become clause (c) of sub-section (2) of section 21 and-

(i) statements made by an agent to any party are admissions under section 18 (first para).

(ii) statements made by persons having joint interest are admissions under section 18 (third para of sub-para (1)).

(iii) statements made by persons whose position must be against a party to the suit, which are admissions under section 19, and

(iv) statements made by a referee are admissions under section 20.

It was suggested (see para 9.62) that the section could be split up into a positive branch (where the use of the admission is permitted) and into a negative branch (where the use of the admission is not permitted); though the negative branch is subject to certain exceptions referred to in clauses (1), (2) and (3) of the existing section.

It was suggested that in section 21, reference to section 18 could be to "subsection (4) of section 18" which was proposed to be substituted for the above sub-para of the existing section.

We have looked into the subsequent case law after 1977 (i.e. date of 69th Report) but do not find any need for modifying the recommendation made in the 69th Report. We shall however refer to a few post 1977 cases.

It was held in Thiru John v. The Returning Officer, AIR 1977 SC 1724 that an admission is not conclusive but shifts the onus to the person who made the admission. On a question of benami, statements made against propriety interest, much later, were held admissible in Bhim Singh v. Kan Singh AIR 1980 SC 727. An admission as to the correctness of a newspaper report can be relied upon against the maker in Mohammad Koya v. Muthukoya, AIR 1979 SC 154. A contractor's settlement of bill is an admission unless explained in M/s Central Coal Fields Ltd. v. M/s Mining Construction, 1982 (1) SCC 415.

In Satinder Kumar v. CIT (1977) 106 ITR 72 (HP) it was held that when the assessee said an admission was mistaken, it could not be relied upon without putting the admission to him. It was held in Dy. Commissioner, Sales Tax v. Imperial Trading Co. (1990) 76 STC 183 (Ker) that an admission by an assessee was not conclusive but might be relevant. In the absence of an explanation, it could be conclusive. See also Federal Bank v. State, AIR 1995 Kant 62. These decisions may not be right if they hold that the admission has to be put to the person and otherwise, it could not be relied upon.

It may be noted that if there is an admission it is for the party who makes the admission to explain, inasmuch as the onus shifts to him, and it is not necessary that it should be put to him in cross-examination under section 145. Bharat Singh v. Bhagirathi, AIR 1966 SC 405. But, except under section 145, it may still be open, as a matter of fairness, to ask the person about the admission, during examination State of Rajasthan v. Kartar Singh, 1970 (2) SCC 61; Biswanath Prasad v. Dwarka Prasad, 1974 (1) SCC 78; Laxman v. State of Maharashtra, 1974 (3) SCC 704; Somnath v. UOI, 1971 (2) SCC 387; Taksddar Singh v. State of UP, 1959 Suppl. (2) SCR 875; State of Haryana v. Harpal, 1978 (4) SCC 465; Prakash Chand v. UTD, 1979 (3) SCC 90; Mohanlal Gangaram Gehani v. State of Maharashtra, 1982 (1) SCC 700.

A self-serving statement in one's own favour cannot be allowed to affect the interests of his adversary. An entry in the counterfoil of the receipt book maintained by the landlord is an admission in favour of the landlord and cannot be used against the tenant (Idandas v. Anant Ramachandra Phadke, AIR 1982 SC 127).

A statement of A in a previous proceeding that B was a tenant of the property in dispute, is an admission and can be used when, in a later proceeding, he denied that fact (Dukhiram Dey v. Mrityunjoy Prosad, AIR 1982 Cal 294). A statement in an affidavit in a section 145 CrPC matter can be used in later proceedings as a piece of evidence against the party though it is not conclusive (JankiRam v. AmirChandRam, AIR 1984 Pat 191).

These cases are consistent with section 21 and we do not find any significant change in the law concerning section 21 after 1977, when the 69th Report was given and hence the recommendations made therein require no change.

Sri Vepa P. Sarathi has suggested that section 21 is not vague and section not need any elaboration in as much as these clarifications are implied in section 21. We, however, feel that there is nothing wrong in clarifying section 21 with reference to various other sections as proposed in the 69th Report.

We, therefore, accept the recommendations, to which we have already referred, for substituting the following for the existing sections:

"21. Proof of admissions against persons making them, and by or on their behalf.- (1) Admissions are relevant and may be proved against the following persons that is to say,-

(a) the person who makes them, or his representative in interest;

(b) in the case of an admission made by an agent where the case falls within sub-section (2) of section 18, the principal of the agent;

(c) in the case of an admission made by a person having a joint proprietary or pecuniary interest in the subject-matter of the proceeding, where the case falls within sub-section (4) of section 18, any other person having a joint proprietary or pecuniary interest in that subject-matter;

(d) in the case of an admission made by a person whose position or liability it is necessary to prove as against a party, where the case falls within section 19, that party;

(e) in the case of an admission made by a person to whom a party has expressly referred for information, where the case falls within section 20, the party who has so expressly referred for information.

(2) Admissions cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:-

(a) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32.

(b) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.

(c) An admission may be proved by or on behalf of the person making it, when it is relevant otherwise as an admission.

Illustrations

(a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine, B that it is forged. A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine, nor can B prove a statement by himself that the deed is forged.

(b) A, the captain of a ship, is tried for casting her away.

Evidence is given to show that the ship was taken out of her proper course.

A produces a book kept by him in the ordinary course of his business, showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statements, because they would be admissible between third parties, if he were dead, under section 32, clause (2).

(c) A is accused of a crime committed by him at Calcutta.

He produces a letter written by himself and dated at Lahore on that day and bearing the Lahore post-mark of that day.

The statement in the date of the letter is admissible, because, if A were dead, it would be admissible, under section 32, clause (2).

(d) A is accused of receiving stolen goods knowing them to be stolen. He offers to prove that he refused to sell them below their value. A may prove these statements, though they are admissions, because they are explanatory of conduct influenced by facts in issue.

(e)A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit.

He offers to prove that he asked a skillful person to examine the coin as he doubted whether it was counterfeit or not, and that person did examine it and told him it was genuine.

A may prove these facts for the reasons stated in the last preceding illustration."