Report No. 69
IV. Section Mandatory
25.15. Section 60-mandatory.-
The point discussed above relates to the proviso. We shall consider later a few other points concerning the provisions. But we may, at this stage, refer to a few other aspects of section 60.
25.16. Case law from other jurisdictions.-
The provisions of section 60 are mandatory.1 Since the word 'must' is used in the section, it follows that oral evidence must, in all cases, be direct. A similar approach prevails in other common law jurisdictions. A Privy Council case,2, decided on appeal from Singapore illustrates this. The evidence of what a person who was not alleged to have any authority to represent the defendant, had said in the absence of the defendant was not objected to by the defendant's counsel, but, still, it was held that the failure of an advocate to object to the admission of evidence cannot so alter th4 character of testimony as to convert, into corroborative evidence, that which the law regards as merely fit for rejection as hearsay.
1. Munishwar Datt v. Indra Kumari, AIR 1963 Punj 449: ILR (1963) 2 Punj 263: 65 Punj L 1029.
2. Lim Yang Hong & Co. v. Lam Choon & Co., AIR 1928 PC 127 (128) (from Singapore).
25.17. Indian decisions as to mandatory nature of section 60.-
As regard Indian decisions, we may note that in the case of Sirish1, it was held by the Privy Council that it is not up to a Judge to exercise a dispensing power and to admin hearsay evidence which is not admissible by the statute. In an earlier Privy Council case2, the witness was testifying on the question whether the appellant was of age, and was mentioning certain signs of puberty. When, however, asked how the witness knew this, the witness replied "Through her father". The Privy Council held that the repetition by the witness of the statement made by the father was no evidence of the substantive fact of the girl's puberty.
This case also furnishes another illustration of hearsay evidence. In the course of the examination (on commission) of certain witnesses at Mecca, one of the witnesses of the plaintiff was asked, in re-examination by the person appearing for the plaintiff, the question 'Did you hear from anybody that A was of age?". He gave the following answer. 'I heard from my wife who heard from the mother of A". The Privy Council, pointing out that this was hearsay, observed. "The evil consequences of admission of such evidence as this is not merely that it prolongs litigation and increases its costs, it may unconsciously be regarded by the judicial mind as corroborative of some piece of evidence legally admissible and thereby obtain for the latter an undue weight and significance."
1. Sirish, AIR 1941 PC 15.
2. Atkia, AIR 1916 PC 250 (251).
25.18. It is, thus, clear from the scheme of the Act that hearsay evidence is inadmissible, in the absence of specific exceptions. The exceptions are to be found in the Act or in other laws. Other exceptions cannot be added by the judiciary.
25.19. Exceptions to the hearsay rule.-
We need not, at this stage, enumerate all the exceptions to this general rule against hearsay. The section itself has two provisoes, and we may also state that sections 17-39 of the Act contain a few exceptions to the rule. Again, in section 55 of the Act, "character" is defined as including reputation. Opinion as to character is, thus, permissible, since 'reputation" may sometimes be based on hearsay.
25.20. As an example of an exception to the rule against hearsay contained in other laws, we may note that under the Code of Civil Procedure1, affidavits in interlocutory applications, may contain statements based on belief and not on 'personal knowledge. There are certain provisions in the Code of Criminal procedure also, which, in substance, modify the rule.
1. Order 19, rule 3, Code of Civil Procedure, 1908.