Report No. 69
23.1. Principle of section 58.-
Section 58, in its main paragraph, provides that a fact need not be proved "in any proceeding" which the parties or the agents agree to admit or which, before the hearing, they agree to admit by any writing under their hands, or which, by any rule of pleading in force at the time, they are deemed to have admitted by their pleadings. The principle on which this section is based is that a court sits to decide only disputed facts. Facts not in dispute need net, therefore, be proved.1
1. Burjorji v. Muncherji, (1881) 5 Born ILR 143 (152).
23.2. Proviso to section 58.-
The principle, however, is subject to certain qualifications. Even where a fact is admitted, the court has a discretion to require proof of that fact. This is the substance of the proviso to section 58. This is a qualification to the general principle that facts not in dispute need not be proved.
23.3. Criminal prosecutions.-
Another qualification to this general principle, though not given in so many words in the section, is recognised in relation to criminal prosecutions. Although the matter is not totally beyond doubt, section 58 does not seem to apply to criminal prosecutions. The language of the section, is, in many respects, not quite appropriate so as to apply to criminal prosecutions. In particular, the reference to "agents" suggests a narrower view, in this regard. The proviso to the section also is reminiscent of Order 8, rule 5 of the Code of Civil Procedure, 1908. Order 12, rule 6 of that code also deals with admissions.
23.4. Reasons and case law.-
The view that criminal prosecutions are excluded from section 58 could be supported on two grounds-first, that its language is not appropriate for criminal prosecutions are already stated,1 and, secondly, on the ground that the general principles of jurisprudence require that in a criminal prosecution, the prosecution must make out its case by evidence.2
For example, Mohideen Adbul Kadir v. Emperor, 1904 ILR 27 Mad 238 (White, C.J.) Publication of Statement), is an authority in support of the view that such an admission by the accused made in answer to questions put by the court under section 342. Code of Criminal Procedure, 1898, could not be utilised by the prosecution to fill up a gap in its own evidence. In an Oudh case,3 it was observed that section 58 makes no exception in respect of criminal trials, and the criminal courts do not, as a matter of practice, insist on every fact which is admitted by the accused being proved by the prosecution, but, under the proviso, the practice is to insist on proof of all really essential facts. In this case, although the accused had admitted that there was a dacoity and that he took part in it the court held that this admission could not be accepted as a substitute for proof that a dacoity did, in fact, take place.
In a Madras case,4 it was held that no consent or admission by the Counsel of the accused to dispense with the medical witness, could relieve the prosecution proving by evidence the nature of injuries received by the deceased and the fact that the injuries were the cause of death. It was observed by the Court that "it is an elementary rule, that except by a plea of guilty, admissions dispensing with proof as distinguished from admissions which are evidential, are not permitted in a criminal trial". Because of lack of medical evidence in the case and other circumstances, the conviction of the accused was set aside by the High Court. The same view has been taken in a Calcutta case.5 The accused was charged under section 161 of the Indian Penal Code (bribery).
The cross-examination of the witness was incomplete, when he fell ill seriously. The statement of the witness recorded by the Court prior to the framing of the charge was admitted under section 33 of the Evidence Act, and the defence counsel did riot object to it. The High Court held that this statement was not admissible, making' the observation that the law makes no provisions for an admission by counsel in a criminal case. No admission by counsel can relieve the prosecution of the duty of satisfying the court by proper evidence, that a witness was seriously ill and could not be examined. There is a Bombay decision6 which has applied section 58 to criminal cases. But in that case, the ruling is confined to an admission made at the appellate stage.
1. Para. 23.3.
(a) Norton Evidence, p. 232, cited in Woodroffe and Amir Ali Evidence, (1958), Vol. p. 765;
(b) Rangappa v. Emperor, AIR 1936 Mad 426: ILR 59 Mad 349;
(c) Annavi v. Emperor, AIR 1916 Mad 851 (2): ILR 39 Mad 449, and the cases discusses there.
3. Bhutan v. Emperor, AIR 1926 Oudh 245.
4. Rangappa Goundan v. Emperor, AIR 1936 Mad 426.
5. S.C. Mitter v. State, AIR 1950 Cal 435 (436), paras..-9. (G.N. Das & Das Gupta, JJ.)
6. Bansi Lai v. Emperor, ILR 52 Born 686: AIR 1928 Born 241.
23.5. Procedural requirement.-
While discussing this point; we may also refer to an analogous principle-namely, that in criminal cases, consent does not dispense with compliance with procedural requisites, where the non-compliance constitutes an illegality. In Reg. v. Bertrand, (1841-45) 4 Moore PC (NS) 460: 36 LJPC 51, the Judicial Committee of the Privy Council, in a very elaborate judgment, pointed out the inadvisability of basing a conviction upon evidence which, but for the consent of the accused's counsel, should not have been admitted.
This decision was followed in Queen v. Bholanath Sen, (1876-44) ILR 2 Cal 23, where it was pointed out that no conviction should be based against the accused upon anything that he said or consented in the course of the trial. Queen v. Bishonath Pal,(1869) 12 WR 3 (Cr) Jungi Khan v. Hur Chunder Rai, (1871) 16 WR 69 (Cr) and Queen v. Raghoonath Dass, (1875) 23 WR 59 (Cr). are to the same effect. The decision in Rangaswami v. Emperor, (1908) 18 MLJ 330 is in favour of the same view.
23.6. Recommendation to exclude criminal prosecution.-
In view of the above position, it is desirable to make the language of the section specific on the question of its non-applicability to criminal prosecutions. We, therefore, recommend that criminal prosecutions should be excluded from section 58, by an express provision. The object could be achieved by adding, after the words "in any proceeding", the words "other than a criminal prosecution".
23.7. Matrimonial proceedings.-
The question of the use of admissions in matrimonial causes has also come up occasionally before the courts. Although it used to be sometimes said that admissions cannot be made use of in matrimonial cases, that does not seem to be the position now. It would appear that the position in this regard is settled by a judgment of the Supreme Court. In that case,1 the petition was for the annulment of a marriage under section 12(1)(d) of the Hindu Marriage Act, 1955, on the ground of the pre-marital pregnancy of the wife. An admission of pre-marital intercourse had been made by the wife. The majority in the Supreme Court held that under section 58 of the Evidence Act and Order 3, rule 5 of the Code of Civil Procedure, 1908, where there was no reason for supposing that the parties are colluding, there was no reason why admissions of the parties should not be treated as evidence just as they are treated in other civil proceedings.
The majority of the Supreme Court also held:
"It is true that in divorce cases under the Divorce Act of 1869, the court usually does not decide merely on the basis of the admissions of the parties. This is a rule of prudence and not a requirement of law. That is because parties might make collusive statements, admitting allegations against each other in order to gain the common object that both desire for personal reasons. A decision on such admissions would be against public policy and is bound to affect not only the parties to the proceedings, but also their issues, if any, and the general interest of the society. Where, however, there is no room for supposing that parties are colluding, there is no reason why admissions of parties should not be treated as evidence just as they are treated in other civil cases. The provisions of the Evidence Act and the Code of Civil Procedure provide for its accepting the admissions made by the parties and requiring no further proof in support of the facts admitted."
The majority added-
"Section 58 of the Evidence Act, inter alia, provides that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit it the hearing or which by any rule of pleading in force at the time they are deemed to have admitted by their pleading. Rule 5 of Order 8, C.P.C provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted except as against a person uncle] disability. Both these provisions, however, vest discretion in the court to requite any fact so admitted to be proved otherwise than by such admission.'
Further, the majority observed-
"that in proceedings under the (Hindu Marriage) Act, the court can arrive at the satisfaction contemplated by section 23 on the basis of legal evidence in accordance with the provisions of the Evidence Act and that it is quite competent for the court to arrive at the necessary satisfaction even on the basis of the admissions of the parties alone. Admissions are to be ignored on grounds of prudence only when the court, in the circumstances of a case, is of the opinion that the admissions of the parties may be collusive.2 If there be no ground for such a view, it would be proper for the Court to act on those admissions without forcing the parties to lead other evidence to establish the facts admitted, unless of course, the admissions are contradicted by the facts proved or a doubt is created by the proved facts as regards the correctness of the facts admitted."
1. Mahendra v. Sushila, AIR SC 364 (371) (Raghubar Dayal, J.)
2. Emphasis supplied.
23.8. No change needed to matrimonial cases.- On this point, on the whole, no change is required.
23.9. Change needed as to criminal prosecution.-
In the result, the only change needed in section 58 is as regards criminal prosecutions, as already stated1.
1. See para. 23.6, supra.