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Report No. 185

Section 3: Interpretation clause.

This clause 'defines' several words which occur in the Act, namely, 'Court, 'Fact', 'Relevant', 'Facts in issue', 'Document', 'Evidence', 'Proved', 'Disproved', 'Not proved', and 'India'. Certain other words as defined by the Information Technology Act, 2000 (Act 21 of 2000) are to be read into section 3 of the Evidence Act, 1872.

We shall now take up each of these words which are defined in section 3.

'Court' : 'Court' has been defined in section 3 as "including all Judges and Magistrates, and all persons, except arbitrators, legally authorized to take evidence."

The word 'persons' here has to be read in the immediate context of 'Judges' and 'Magistrates' and will take colour from those words.

Obviously, when the definition refers to persons "legally authorized to take evidence", this has to be understood that unless a person is taking 'evidence', there is no scope for the Act to apply but that does not literally mean that every person, or authority, such as a quasi-judicial tribunal or a domestic tribunal receiving evidence is a Court. This is clear from the case law to which we shall now refer.

The definition of 'Court' in the Act is an inclusive definition and is not exhaustive, Brajanandan Sinha v. Jyoti Narain (AIR 1956 SC 66). But the Supreme Court has held that the Evidence Act does not apply to income tax authority (C.I.T v. East Court Commercial Co. Ltd) (AIR 1967 SC 768) nor to the non-judicial proceedings under the Mysore (Personal and Miscellaneous) Inams (Abolition Act), 1955 (State of Mysore v. P.T. Muniswamy Gowda)(AIR 1971 SC 1363), nor to proceedings under the Public Servants (Inquiries) Act, 1850, (Brajnandan Sinha v. Jyoti Narain) (AIR 1956 SC 66), nor to a nominee of the Registrar under the Maharashtra Co-operative Societies Act, 1961 (Ramrao v. Narayan) (AIR 1969 SC 724), nor to inquiries conducted by tribunals even though they may be quasijudicial in character (Union of India v. T.R. Verma) (AIR 1957 SC 882) (But they may have to observe principles of natural justice).

The definition does not apply to domestic tribunals(Central Bank of India Ltd. v. Prakash Chand Jain) AIR 1969 SC 983; nor to departmental proceedings (K.L. Shinde v. State of Mysore, AIR 1976 SC 1080) (State v. Shivabasappa, AIR 1963 SC 375).

The Supreme Court, in Brajnandan Sinha v. Jyoti Narain (AIR 1956 SC 66) while deciding whether inquiry under the Public Servants (Inquiries) Act, 1850 is in the nature of an inquiry before a 'Court' went into a detailed examination of the meaning of the word 'Court' and pointed out that such a body or forum must have power to give a decision or a definitive judgment which has finality and authoritativeness which are essential tests of a judicial pronouncement, if it has to be treated as a 'Court'.

But, in its 69th Report, the Law Commission, after a review of relevant authorities, felt that a specific definition of 'Court' is necessary to remove uncertainty and suggested that the following definition of 'Court' should be substituted:

"Court means, a civil, criminal or revenue court and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by or under that Act to be a court for the purposes of this Act, but does not include an arbitrator."

We shall examine this suggestion in some detail.

The position so far as Civil Courts to which the Code of Civil Procedure, 1908 applies needs no clarification. So far as the Code of Criminal Procedure, 1973 is concerned, section 6 thereof refers to the classes of Criminal Courts, (besides the High Courts and Courts constituted under any law other than the Code.- namel.- Courts of Sessions, Judicial Magistrates, and Executive Magistrate.

However, section 195 of the Cr.P.C. which deals with "Prosecution for contempt of lawful authority of public servant, for offences against public justice and for offences relating to documents given in evidence", is concerned, it contains a special definition for the purposes of section 195 which is in the same form as recommended in the 69th Report for inclusion in the Evidence Act. The question is whether this recommendation requires any modification?

So far as revenue courts are concerned, there are a vast number of revenue courts in the country. They are mostly governed by local laws made by State Legislatures. In some of these laws, it is customary to confer all the powers of a Civil Court while in some others, limited powers like summoning witnesses etc. are conferred. Some of the courts conduct summary inquiries. The question therefore is whether all the revenue courts should be governed by the provisions of the Evidence Act, 1872 as recommended in the 69th Report?

The recommendation in the 69th Report might include even those revenue courts which have limited powers or have a summary procedure to follow. That would create serious problems. Where the local legislature requires a speedy decision by following a summary procedure, the revenue court will be confronted with a duty to follow all the niceties of the Evidence Act. We, therefore, feel that it is not necessary to include all revenue courts within the definition of 'Court' for purposes of the Evidence Act.

The question whether the provisions of the Evidence Act apply or not, would depend upon the nature of the tribunal, the nature of inquiry contemplated and other special characteristics of each such 'revenue court' and is a matter for the appropriate Legislature or rule making authority dealing with revenue courts. We are, therefore, not in favour of applying the Evidence Act to all 'revenue courts'. We therefore differ from the recommendation in the 69th Report in this respect.

We then come to the recommendation in the 69th Report regarding applicability of the Act to tribunals. The recommendation says that if the special statute governing the tribunal requires that the tribunal be treated as a 'court' for purposes of the Evidence Act, then the Act will apply. But, in our view, this is so obvious a position that there is no need to say so by way of a definition. It is true that in section 195(3) Cr.P.C., such a definition is specially given for purposes of section 195, which deals with procedure in the case of offence of 'contempt' under the Indian Penal Code. There the special definition was necessary because of the penal consequences of the 'contempt'.

In the result, we differ from the 69th Report and recommend that the existing definition of 'court' does not require any amendment.

We next take up the other words for discussion.

'Fact': The provisions of section 3 define the word 'fact' as follows: "Fact" means and include.-

(1) anything, state of things, or relation of things, capable of being perceived by the senses;

(2) any mental condition of which any person is conscious."

There are illustrations (a) to (e) in the definition.

In the 69th Report, after an elaborate discussion, the Commission was of the view that no further elaboration is necessary in this definition but it was suggested that the words "and includes" be deleted as it has been creating confusion.

It is pointed out in Sarkar on 'Evidence' (15th Ed. 1999, 542) that Bentham classified facts into 'physical' and 'psychological'. It is now recognized that the state of a person's digestion is a fact (see also Sabapathi v. Huntley: (AIR 1938 PC 91). Illustrations (a), (b) and (c) refer to 'physical' facts and (d) and (e) to the psychological.

The word 'Thing' used in the definition of 'fact' is explained, as pointed out in the 69th Report, in the Oxford dictionary as 'that which is concerned (in action, speech or thought.- that which is or may be in any way an object of perception, knowledge or thought, a being, an entity.'

In Phipson's Evidence (15th Ed., 2000), it is pointed out: (see para 1.04)

"No satisfactory definition of the term 'fact' has been or perhaps can be given. Broadly it applies to whatever is the subject of perception or consciousness. But juridically it has generally to be distinguished from law sometimes from opinion and sometimes from testimony and documents. It is not possible always to apply these distinctions consistently."

In as much as the existing definition of 'fact' has not created any legal difficulties and having regard to the fact it refers to physical and psychological facts, and there cannot also be a perfect definitio.- the Commission is of the view that no clarification or amendment is necessary. The Commission however disagrees with the 69th Report that the words 'and includes' should be deleted but on the other hand, recommends that the word "means and" be deleted.

'Relevant': The word 'relevant' has been defined in the Act as follows:

"Relevant': One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts".

In other words, one fact is relevant to another fact, if it is connected in any way as described in sections 6 to 55. Section 5 states that 'evidence' may be given of 'facts in issue' and 'relevant facts' and the Act also defines 'facts in issue'. The Act also defines 'evidence' as oral and documentary.

There are again facts of which evidence, being not admissible, cannot be given though they are 'relevant.- such as the facts referred to in sections 122, 123, 126 and 127. This brings out the concept of 'admissibility'.

Besides these, the expression 'irrelevant' occurs in sections 24, 29, 43, 52, 54 and 165.

Section 11 refers to situations when 'facts not otherwise relevant become relevant'.

Phipson (15th Ed., 2000, para 6.08) points out that Stephen in his Digest first defined 'relevance' from the angle of 'cause and effect' (now in section7) but later defined 'relevance' in Article 1 as a fact which, in conjunction with others, proves or renders probable the past, present or future existence or non-existence of the other. In the Indian Act, the concept of 'proves or renders probable' are used in the definition of 'proved' in section 3 and in sub section (2) of section 11, dealing with facts which are irrelevant.

We agree with the 69th Report and do not think that the definition of 'relevant' should be amended by linking it up with 'proof' or rendering other facts probable in as much that concept is already incorporated in the definition of 'proved' in section 3.

Facts in issue: In the 69th Report (see para 6.51) it was pointed out that these words occur in sections 5, 6, 7, 8, 9, 11, 17, 21 [Illustration (d)] and in sections 33, 36, 43 and the words 'questions in issue' occur in section 33, while the words 'matters in issue' occur in section 132, and the Commission merely recommended omission of the words 'and includes' occurring in this definition.

Further in civil cases, facts in issue are decided in the manner provided in O 14. RR. 1 to 7 of the Code of Civil Procedure and in criminal cases, the charge constitutes and includes facts in issue (chapter XVII of the Criminal Procedure Code, 1973) (vide Sarkar, Evidence, 15th Ed, 1999, p.43).

We agree that with the recommendation in the 69th Report in this behalf that no material amendment is necessary and that the only correction necessary is to drop the words 'and includes'.

'Document': 'Document' has been defined as "any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter".

The definition covers any type of document including electronic records. Record of the matter is one thing and the deciphering of its meaning is another thing.

The definition also contains some illustrations.

Under section 13 of the UK Civil Evidence Act, 1995, document means 'anything in which information of any description is recorded,' and this is in implementation of the recommendation of the British Law Commission Report on the Hearsay Rule in Civil Proceedings (1993) No.216).

We shall also refer to some recent English decisions on the meaning of the word 'document': Cinematograph film (Senior v. Holdsworth; 1975 (2) All ER 1009); Photography, Video Tapes, audio tapes (R v. Stevenson) (1971)1 WLR 1, R v. Robson 1972(1) WLR 651; Grant v. South Western and County Properties 1975. CH.185: Microdots or tape recording, telephone conversation (Grants case above referred to; Television Film (Senior v. Holdsworth ex P Independent Television News Limited) (1976 QB 23); Facsimile Transmissions (Hastie and Jenkerson v. McMohan 1990. 1. WLR 1575; Computer Database recorded in back ups or files (Derby v. Weldon) (No.9) [1991] 1 WLR 652, have been held to be 'documents'.

In Derby's case, which related to a computer data base, Venlott J. differed from the view of Mc Inerney J in Beneficial Finance Corporation v. Convey 1976 V.R.321 that a document must be visually seen but it was held that it is not necessary to be seen visually. The learned Judge observed, agreeing with Walton J in Grant's case (above), that the position was the same in 'shorthand' or in the case of words which could be fully written down by a key. He held :

"the mere interposition of necessity of an instrument for deciphering the information cannot make any difference in principle. A litigant who keeps all his documents in microdot form could not avoid discovery (under RSC Order 24) because in order to read the information extremely powerful microscopes or other sophisticated instruments would be required. Nor again, if he kept them by means of microfilm which could not be read without the aid of a projector."

The learned Judge observed:

"I respectfully adopt that statement of principle. It must, I think, apply a fortiori to the tape or disc on which material fed into a simple word processor is stored. In most businesses, that takes the place of the carbon copy of outgoing letters which used to be retained in files."

An electronic diary is a document 'Rollo v. H.M.Advocate' 1997 SLT 958. It does not matter that it may have to be processed lik.- translation, decoding or by electronic retrieval. Computer print out is a document R v. Spiby (1990) 91. Cr. A.R. 186A; Public Prosecutor v. Ang Soon Huat: 1991(1) Malay L.J. page 1.

Here, we must accept the comment of Steve Uglow in 'Evidence, Text and Materials' 1997 page 149 that if the definition of 'document' broadens, so do the difficulties of demonstrating authenticity. While computer generated information should be treated similar to other records, its weight depends on its reliability and parties might need to provide information as to the security of their computer system.

Electronic records are 'secondary evidence' (see section 65B introduced by Act 21/2000). Where the original of a document cannot be produced, secondary evidence of its contents will be admissible. Since, whenever a document is produced in court as evidence, its genuineness has to be established before its contents can be referred to, the authenticity of the electronic record has to be established, except when the conditions of section 65B are satisfied. In that case, the electronic record becomes automatically admissible as evidence of its contents in the same manner as a certified copy of a public document. Such certified copy is also secondary evidence but is received as if it is primary evidence, because of sections 77 and 79.

In Ziyauddin v. Brijmohan (AIR 1975 SC 1788) the Supreme Court held a tape record is a document which is no different from a photograph. However, conditions for its admissibility may be different.

In the 60th Report of the Law Commission, dealing with General Clauses Act in para 3.40, the following revised definition of 'document' in section 3(18) of the General Clauses Act was recommended:

"document" shall include any substance having any matter written, expressed, inscribed, described or otherwise recorded upon it by means of letters, figures or marks or by any other means, or by more than one of these means, which are intended to be used or which may be used for the purpose of recording that matter.

Explanation: It is immaterial by what means the letters, figures or marks are formed"

(The above recommendations in the 60th Report are quoted in para 6.36 of the 69th Report)

In paras 6.36 and 6.37 of the 69th Report, the Commission recommended a similar definition in section 3 of the Evidence Act.

We agree with the above proposals but we may, in the light of the developments in technology, further recommend the explanation in the modified form. It is recommended that the definition of "Document" be substituted as follows:-

"'Document' shall include any substance having any matter written, expressed, inscribed, described or otherwise recorded upon it by means of letters, figures or marks or by any other means or by more than one of these means, which are intended to be used, or which may be used, for the purpose of recording that matter.

Explanation:- It is immaterial by what means the letters, figures or marks are formed or decoded or retrieved."

'Evidence': Section 3 of the Act also defines 'Evidence'. It says that the word means and include.-

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence.

(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.

In the 69th Report it was remarked (see para 6.38) that the definition was not exhaustive. After some discussion, it was stated in para 6.46 that the definition does not require any amendment because the question of treating other evidence like material objects or facts revealed by local inspection is sufficiently covered by the word 'proved' and the second proviso to section 60.

Sarkar in his Evidence (15th Ed. 1999, p.48) states that the meaning of the word 'Evidence' as given in the Act is not complete. Vepa Sarathi, however, in his book on Evidence (5th Ed., 2002, p. 12.26) opines that every type of evidence is governed by the Evidence Act.

Both the 69th Report and the commentary by Sarkar refer to oral evidence, documentary evidence, real or personal evidence, original and unoriginal evidence and so on. But still, the 69th Report recommended that no amendment is necessary.

We agree that the definition of the word 'Evidence' is not exhaustive. But in that event, there is no point in retaining the word "means". We are of the view that if we do not expand the meaning, we should at least omit the words 'means and' from the definition. We recommend accordingly.

Proved: This word will be taken up along with two other words 'disproved' and 'not proved'. The word 'proved' is defined in section 3 as follows:

"Prove.- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

Disproved: The word 'Disproved' is defined as follows:

"Disprove.- A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist."

'Not proved': These words are defined as follows:

"Not-proved:- A fact is said not to be proved when it is neither proved nor disproved."

In these three definitions, the prudent man's approach has been adopted, as to the probability of existence or non-existence of facts.

The 69th Report (see paras 6.54 to 6.56) did not recommend any change.

We shall now refer to certain aspects which are relevant in the context of these words.

In a number of judgments, the Supreme Court pointed out that mere 'suspicion' or 'conjecture' cannot be the basis of a finding that a fact is proved.

We may state that under the words "matters before it", i.e. the Court will obviously include oral and documentary evidence, circumstances, objects, maps or other material revealed from local inspection.

One other aspect here is about the 'standard of proof'. In criminal cases, generally it should be proof beyond reasonable doubt. That principle is not applicable in civil cases. In civil cases proof is on balance of probabilities. Lord Denning stated in Bater v. Bater 1950(2) ALLER 458 that even so, there could be different degrees of proof within the standard, both in civil and criminal cases.

This matter is unnecessarily complicated by our courts.

Sir James Stephen has suggested a simple formula in the definition of the three expressions 'proved', 'disproved' and 'not proved'. In civil cases, there are usually two versions of the facts. The court, on the basis of the evidence adduced before it, chooses that version which it thinks is more probable, that is, it will accept that version which a prudent man will act upon the supposition that exists. If there is no defence version, the court can take that fact into consideration in concluding that the plaintiff's version of the facts exists. In conceivable cases, the court can reject both versions as false.

But in a criminal case, whether or not there is a defence version the court must be satisfied that a reasonable alternative version is not possible, because, if it is possible, a prudent man will not act upon the supposition that the prosecution version exists. He will act on the supposition that the alternative version exists. But in cases coming under sections 105 and 106 Evidence Act, though apparently the burden of proof is on the accused, if the evidence adduced by the prosecution discloses a version in favour of the accused, a prudent man will not act upon the supposition that only the prosecution version exists; but upon the supposition that the one favourable to the accused exists.

In Kishenchand Mangal v. State of Rajasthan AIR 1982 SC 1511, the Supreme Court pointed out that proof of a fact does not depend upon whether the witness is rich or poor.

There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must rest on robust commonsense and ultimately on the trained intuition of the Judge. (State of UP v. Kishan Gopal AIR 1988 SC 2154).

Phipson's Evidence (2000, 15th Ed. P.1) refers to 'proof' as the establishment of such facts by proper legal means to the satisfaction of the Court, and in this sense includes disproof.

These views are relevant but do not require to be incorporated in the definitions of these words.

In the light of the above discussion and the recommendation made in the 69th Report, we do not think that any amendment be made in respect of the words 'proved', 'disproved' or 'not proved'.

'India': No modification is necessary with regard to this definition.

'Certifying Authority', 'digital signature', 'Digital Signature Certificate', 'electronic form', 'electronic record', 'information', 'secure electronic record', 'secure digitalsignature', 'subscriber' The above words have been recently brought into section 2(1) by the Information Technology Act, 2000 and require no further change.

Other definition.- if to be added?

In the 69th Report (see para 6.81), it was suggested that 'Judicial proceeding' need not be defined as the Commission was recommending amendment of the meaning of 'Court'.

It was pointed out (see para 6.64) that so far as the Code of Criminal Procedure 1882 was concerned, 'judicial proceeding' was defined in section 4(d) and 1973 Act in section 2(i) but that as far as the Indian Penal Code is concerned, the Courts have refrained from attempting a definition (see para 6.68). It was pointed out at that the expression is not defined in the Code of Civil Procedure. In para 6.81 it was said that if a definition of the word was felt necessary, the 'function of administration of justice' should be emphasized and that it could (i.e. if felt necessary) be defined as follows:

"Judicial proceeding means any step in the administration of justice according to law in which evidence may be legally recorded for the decision of the matter in issue in the case, or of a question necessary for the decision or final disposal of such matter."

It may be noted that ultimately, the 69th Report did not recommend a definition of 'judicial proceeding' because the definition of 'Court' was recommended to be widened (see para 6.81). But, as stated earlier, we have somewhat differed from this recommendation in respect of the definition of 'Court' for reasons already given. The question then is whether definition of 'judicial proceeding' should be included?

Having said that the definition of 'Court' need not be incorporated and that it is best left to the Court to decide whether a body is a 'Court' or not, we feel that likewise, it will be necessary to leave this aspect also to be decided on the basis of the particular provisions of the statute. If we recommend a definition of 'judicial proceeding', conflicts can arise between the existing definition of 'Court' and the definition of 'judicial proceeding'.

'Admissible': The 69th Report recommended that the word 'admissible' be defined as 'admissible in evidence'. We too agree with this recommendation.

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