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Report No. 69

II. Court-the General Concept

6.3. Section.-Definition of 'court'.-

The definition of 'court' in section 3 provides that it includes all Judges and Magistrates and all persons except arbitrators legally authorised to take evidence. The words 'Judge' and the word "Magistrate" have not been defined in the Act, but assistance in this regard can be obtained from the definitions of these expressions as contained in:-

(a) Section 2 of the Code of Civil Procedure, 1908; section 19 of the Indian Penal Code; section 3(17) of the General Causes Act, 1897, and

(b) the Code of Criminal Procedure, 1973 and section 3(32) of the General Clauses Act, 1897 respectively.

6.4. It is to be noticed that 'court' has been defined with reference to "evidence" and the expression "evidence" has been defined with reference to "court". Strictly speaking, this is not satisfactory. Since we are recommending a redraft of the definition1, this difficulty will now recur, and we need not concern ourselves with this defect in the present law.

1. See infra.

6.5. The definition is inclusive and courts have been called upon to lay down some test or the other. Several tests-statutory and others-have been formulated for defining the expression "court". It would be convenient to refer to a few of them, before considering the question whether the definition in the Act should be revised.

6.6. The principal tests found in the statutory provisions, or in the important judicial decisions, for determining whether a body is to be regarded as a court, may be enumerated as follows:-

(i) Test of exercise of judicial functions under authority derived either immediately or mediately from the sovereign1;

(ii) Test of definitive judgment2;

(iii) Test of legal power to take evidence3;

(iv) Test of judicial power, or of being a part of the judiciary4;

(v) Test of exercise of a power otherwise exercisable by Civil and Revenue Courts5;

1 See discussion as to exercise of functions under sovereignty, infra.

2 See discussion as to definitive judgment (Penal Code), infra.

3 Present definition of 'Court', in the Evidence Act.

4. See discussion as to section 195, Code of Criminal Procedure, infra.

5. See the Contempt of Courts Act.

Indian Evidence Act, 1872 Back

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