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Report No. 69

III. Criticism of The General Rules offences also

In England, the Royal Commission on Marriage and Divorce' recommended that a previous conviction of adultery should be admissible in a civil case. The matter is now dealt with by statute, to which we refer later.

16.54. The usual ground on which the rule of the common law mentioned above is supported is, that the previous judgment was not between the same parties.-The rule was criticised by Bentham1, on the ground that the theory that the Crown is the prosecutor in a criminal case is only a legal fiction. The "substantial" prosecutor, said Bentham, may be a private person, and therefore the fiction loses its force for the purpose of the subject under discussion. This criticism, however, would not be valid in India, where the State is usually the real prosecutor as well.

1. Bentham Works, Vol. 7, p. 127, quoted by Collector of Gorakhpur v. Palekdhari, 1889 ILR All 1 (39) (per Mahomood, J., dissenting).

16.55. The real justification for considering a change in the law is the fact that a criminal trial usually requires a stronger degree of proof. Hence, if a convictio is made relevant in a later civil case, there is no serious hardship.

16.56. A reference may also be made to the discussion made in another study1. Two points have been urged there in favour of admitting evidence of previous conviction, viz., the very strong probative value possessed by the evidence, and the amount of time which would thereby be saved. Against admissibility, the point made there is the danger of such evidence being treated in practice as virtually conclusive. The suggestion made there regarding the admissibility in civil cases of convictions, can be stated in a simplified form, as follows:-

(1) A conviction following a plea of not guilty and made by a superior court should be admissible.

(2) A conviction following a plea of guilty should not be admissible, as it does not possess the high probative value which results from the circumstances of proof beyond reasonable doubt.

(3) A conviction following a plea of not guilty or a denial, but not made by a superior court, should be admissible, only if the Judge is satisfied that its admission would be in the interest of justice.

(4) In all jury cases, where a conviction is admitted under the above rules, the Judge should warn the jury of the temptation to regard, and the dangers of regarding, the conviction as conclusive.

1. Cowen and Carter Essays on the Law of Evidence, (1956), p. 203.

16.57. It may be noted that Wigmore1 has criticised the common law rule, saying that in numerous situations it is unreasonable and impracticable to ignore the evidential use of a judgment in another proceeding involving the same fact as in the present case.

1. Wigmore Evidence, Vol. 5, p. 688, section 1671 cited in Woodroffe and Ameer Ali, (1957), Vol. 1, p. 642.

Indian Evidence Act, 1872 Back

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