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Report No. 69

1.11. Presidency Towns.-

In the Presidency towns, the English rules of evidence were followed, since the establishment of the Supreme Courts in Calcutta, Madras and Bombay, and perhaps even earlier, that is, since the establishment of the Recorder's Courts. The royal charter of September 24, 1726 provided for the establishment at Madras, Fort William and Bombay, of civil and criminal courts that derived their authority from the King, instead of the East India Company. The charter recites that a representation had been made by the company, that there was "a great want" at these places of a proper and competent power and authority "for the speedy and effectual administering of justice in civil causes, and for the trying and punishing of capital and other criminal offences, and misdemeanours."

Thus was introduced into each Presidency town a Mayor's Court, not a court of the company as there had been in Madras, "though exercising its authority in a land to which the King of England had no claim to sovereignty." We do not consider it necessary to discuss the question where, in law, sovereignty resided during that period.

Rankin states:1

"That the law intended to be applied by these courts was the law of England is clear enough from the terms of the charter, though this is not expressly stated: and it has long been accepted doctrine that this charter introduced into the Presidency towns the law of England-both common and statute law-as it stood in 1726."

Thus, the English rules of evidence were always followed in the Courts established by Royal Charters in the Presidency Towns of Calcutta, Madras and Bombay.

1. Rankin Background to Indian Law, (1946), p. 1.

1.12. Modification by Central Acts based mostly on English Statutes.-

Some Central Acts did modify or supplement the rules of English law. The process of reform was, however, slow, and mostly followed the English statutes that were passed from time to time.

At common law, "The oath of an infamous person is not accepted."1 In 1837, Act 19 abolished the incompetence of convicts to give evidence. This reform seems to have been enacted in England later-in 1843. Section 1 of Act 9 of 1840 made certain provisions as to interested witnesses. It followed Statute 3 & 4 Will 4, Ch. 42. In 1843, in England, Lord Denman's Act-the Evidence Act, 1843 (6 & 7 Vict., C. 85),-was passed, which enacted that no person offered as a witness should be excluded, by reason of incapacity from crime or interest, from giving evidence either in person or by deposition. There were several exceptions, one of which excluded the parties and their spouses. In India, Act 7 of 1844 introduced similar provisions applicable to Her Majesty's Courts in the Presidency towns.

In England, in 1846, the Statute 9 and 10 Vict., C. 95, first declared parties to the proceeding, their wives and all other persons competent as witnesses in the Country Courts; and, in 1851, the Evidence Act-Lord Brougham's2 Act No. 2 (14 and 15 Vict., C. 99), was passed, which declared the parties and the persons in whose behalf any suit, action or proceeding might be brought or defended, competent and compellable to give evidence in any Court of Justice or before any person having by law or by consent of parties authority to hear, receive and examine evidence. In India, similar provisions were enacted for Her Majesty's Courts in India by Act 15 of 1852. It made the parties competent witnesses except in criminal proceedings and proceedings for adultery or breach of promise of marriage.

In England, the Evidence Amendment Act of 1853 (16 and 17 Vict., C. 83 introduced by Lord Brougham)-Lord Brougham's Act No..-made the husbands and wives of parties to the record competent and compellable as witnesses, subject to certain exceptions-the exceptions were mainly concerned with suits for breach of promise of marriage and proceedings based on adultery. In India, the same reform was introduced by Act 2 of 1855.

1. Coke on Littleton, 158s.

2. Lord Brougham's Act No. 2, Evidence Act, 1845, related to official documents and copies of Acts.

1.13. Incompetence.-

The juristic interest of the Act removing incompetence on the ground of "interest" is obvious. The older theory was, that a party would naturally support his own case, and, therefore, would not be a truthful witness, and hence, was not competent. In the Pickwick Papers, Charles Dickens exposed the absurdity of this rule, by describing with ridicule the trial of Bardell and Pickwick. As stated above, the older theory was abrogated in England and in India by legislation.

In Tilley v. Tilley, (1948) 2 All ER 1113 Denning L.J. (as he then was) gave a brief historical survey of the English legislation on the subject-

(1) At common law, neither parties nor their spouses were competent to give evidence at all.

(2) Lord Brougham's Evidence Act, 1851, section 2, made the parties (but not their spouses) competent and compellable. Section 3 made an exception in criminal proceedings. Section 4 made exceptions in proceedings instituted in consequence of adultery and in actions for breach of promise of marriage.

(2b) Lord Brougham's Evidence Act, 1853, section 1, made the spouses of the parties competent and compellable. Section 2 made exceptions to section 1 in criminal proceedings and 'in any proceeding instituted in consequence of adultery'.

(3) As a result of the Matrimonial Causes Act, 1857, the preservation of the common law rule that parties and their spouses were neither competent nor compellable to give evidence in proceedings instituted 'in consequence of adultery' assumed a new importance, as proceedings under that Act fell within this category.

(4) By the Evidence Further Amendment Act, 1869, section 1, the exceptions made in Lord Brougham's Acts in respect of actions for breach of promise of marriage and proceedings instituted in consequence of adultery were repealed.

Some of the reforms mentioned above were extended to Civil Courts of East Indian Company in the Bengal Presidency by Act 19 of 1853.

Elaborate provisions dealing with evidence were made1 by Act 2 of 1855. In fact, between 1835 and 1855, there were eleven enactments touching the law of evidence and, by Act 2 of 1855, all the enactments were consolidated.

1. See infra.

1.14. Position in the Mofussil.-

In the mofussil, however since the Courts were neither required to follow nor debarred from following the English law, a very vague customary law of evidence prevailed1 Courts sometimes relied on the Hedaya, sometimes on English text-books, sometimes on lectures given in India and the like. Some Regulations made between 1793 and 1834 dealt sporadically with some rules of evidence in Bengal and in Madras, and somewhat more elaborately in Bombay. But these Regulations touched only the fringe of the subject.

Bengal Regulation 9 of 1793 directed the Magistrates to be careful to cause the witnesses on the part of the accused to be in attendance by the time of the arrival of the court of circuit. The same Regulation provided that the religious persuasions of witnesses were not to be considered as a bar to the conviction of a prisoner. If, in any case, the evidence of a witness would be considered inadmissible under the Muhammedan Law, on the ground only that the witness was not a Muslim by religion, the courts were directed to give validity to that evidence, by a circuitous way, on the supposition that the witness was of the Muhammedan persuasion.2

Bengal Regulation 9 of 1796 directed that a prisoner was to be questioned at the time of his being committed or held to bail, and his answer was to be recorded on the Magistrate's proceedings, with the specification of any witness named by him. And the courts of circuit were expected to ascertain that all due measures had been taken to cause the attendance of all witnesses both for the prosecution and for the defence3.

Bengal Regulation 4 of 1797 prohibited leading questions to witnesses, but allowed cross-examination either by the Judge or by the opposite party for the purpose of extracting the information they possessed and the discovery of the truth. The court of circuit was directed to take note of any variations in the depositions of the same witnesses before them and the Magistrates, but depositions taken before the Magistrates were not to be read until the witnesses were re-examined.4

Bengal Regulation 3 of 1812 prohibited Magistrates from issuing process to witnesses without previously satisfying themselves that sufficient grounds existed for the prosecution. The prosecutor was to deposit in the hands of the Nazir a sufficient amount of money for the maintenance of the witnesses during the period of their stay.

1. First Report of the Commissioners appointed to consider the reforms of the judicial establishments in India, Appendix B, No. 3, p. 99.

2. Sections 12 and 56 of the Regulation.

3. Sections 2 and 4.

4. Section 7, clauses iii and vii

1.15. Central Acts applying to Courts outside Presidency Towns.-

Besides these occasional directions to be found in the old Regulations, some other rules embodying the most striking reforms, then recently introduced in England, were inserted by Central Acts-e.g. Act 19 of 1853, the operation of which was, however, restricted to the Bengal Presidency. Two years afterwards, Act 2 of 1855 was passed. This Act reproduced, with some additions, all the reforms advocated by Bentham and carried out in England by Lords Denman and Brougham; but nearly all its provisions pre-supposed the existence of that body of law upon which these reforms and amendments were engrafted.

1.16. Position summarised.-

The position outside the Presidency towns may be summarised as under-

(a) All persons admitted that the Mohammedan law of evidence was not to be followed.

(b) The whole of the English Law of Evidence had never by any general enactment been rendered applicable to India, though some portions of it, with or without modifications, had been expressly incorporated in the statute Law of this country; Act 2 of 1855 was the largest specimen of this fragmentary legislation, while other fragments were to be found scattered through the Statute Book, more specially in the Codes of Civil and Criminal Procedure.

(c) Where the Statute Law was silent, it devolved upon the higher Courts to supply the deficiency with Judge-made law. In laying down precedents and setting disputed points, these higher Courts carefully considered the different systems in force in different countries, the former usage in India (if any), the peculiar circumstances of the country and their modifying effect on principles of general application; and where, with due regard to these considerations, they found themselves able to follow the English Law of Evidence, they were generally willing to take it as their guide.

1.17. Observations of Privy Council.-

In Banwari Lal v. Hetnarain Singh, 1858 Moo IA 148: 4 WRPC, before the Privy Council, on the 22nd February, 1858, Dr. Lushington remarked: "It is unfortunately too much the habit of those Courts to receive documents without that just discrimination which would prevail, were the rules of evidence known and established, but their Lordships are of opinion that they cannot in these cases take upon themselves to determine what ought or ought not to have been received in the Courts in India. They may lament the great latitude with which documentary evidence is received, but it would be contrary to justice, in any particular case, to visit upon an individual penal consequences, because the administration of justice was not more strictly conducted with reference to the admission of evidence."

1.18. Criticism by High Courts.-

The law thus rested in a state of great indefiniteness. In a Full Bench decision of the Calcutta High Court1-2, it was held that the English law of evidence was not the law of the Mofussil; that at the time the Mohammedan criminal law, including the Mohammedan law of evidence, was no longer the law of the country, and that by the abolition of the Mohammedan law, the law of England was not established in its place. The Mofussil Courts were, thus, not required to follow the English law, although they were not debarred from following it where they regarded it as the most equitable.

1. Queen v. Khyroolah, 1866 BLR Supp Vol. App 11: 6 WR Cr 21; Field Evidence, pp. 16-18.

2. R. v. Ranwswami, (1869) 6 BHCR Cr 49.

1.19. Central Acts-Acts of the Governor-General-in-Council between 1835 and 1872.-

We may, now refer to some of the Central Acts relating to evidence, enacted before 1872, which introduced a modicum of certainty in the law. The first Act of the Governor-General-in-Council which dealt with evidence strictly so-called was Act 10 of 1835, which applied to all the Courts in British India, and dealt with the mode of proof of Acts of the Governor-General-in-Council. This was followed by several enactments passed at intervals during the next twenty years, which effected various small amendments of the law, and applied, to the Courts in India, several of the reforms in the law of evidence made in England. We have mentioned a few of them while dealing with the position in Presidency Towns. We shall now refer to them in detail.

These Acts were as follows:

Act 19 of 1837 abolished incompetency by reason of conviction; Act 5 of 1840 dealt with affirmations; Act 18 of 1843, section 9; Act 9 of 1840; and Act 7 of 1844 dealt with incompetency by reasons of crime or interest; Act 15 of 1852 dealt with competency of parties and other matters; Act 19 of 1853 extended several of these reforms to the Civil Courts of the East India Company in the Bengal Presidency.

As a specimen of the type of legislation and its object, we may quote Act 7 of 1844, passed on the 6th April, 1844, whose long title was "An Act for improving the law of evidence". The Act was in these terms:-

"An Act for improving the Law of Evidence:

1. Whereas the enquiry after truth in Her Majesty's Courts of Justice is often obstructed by incapacities created by the present Law, and it is desirable that full information as to the facts in issue, both in Criminal and in Civil cases, should be laid before the persons who are appointed to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced, and on the truth of their testimony."

It is hereby enacted, that within the local jurisdiction of Her Majesty's Courts, no person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest from giving evidence, either in person or by deposition, according to the practice of the Court on the trial of any issue joined, or of any matter or question, or on any enquiry arising in any suit, action or proceeding,
Civil or Criminal, in any of Her Majesty's Courts, or before any Judge, Jury, Sheriff, Coroner, Magistrate, Officer or person having by Law or by consent of parties, authority within the jurisdiction of Her Majesty's Courts to hear, receive and examine evidence, but that every person so offered may and shall be admitted to give evidence on oath or solemn affirmation, in those cases wherein affirmation is by Law receivable, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question or enquiry, or of the suit, action, or proceeding, in which he is offered as a witness, and notwithstanding that such person offered as a witness may have been previously convicted of any crime or offence:

provided that this Act shall not render competent any party to any suit, action, or proceeding individually named in the record, or any lessor of the plaintiff or tenant of premises sought to be recovered in ejectment, or the Landlord or other person in whose right any defendant in replying may make cognizance, or any person in whose immediate and individual behalf any action may be brought or defended, either- wholly or in part, or the husband or wife of such persons respectively:

Provided also, that this Act shall not repeal any provision in the Act of the Government of India XXV of 1838:

Provided that in any of Her Majesty's Courts sitting in Equity, any defendant to any cause pending in any such Court so sitting, may be examined as a witness on behalf of the plaintiff, or of any co-defendant in any such cause, saving just exceptions; and that any interest which much defendant so to be examined may have in the matter or any of the matters in question in the cause, shall not be deemed a just exception to the testimony of such defendant, but shall only be considered as affecting or tending to affect the credit of such defendant as a witness."

Indian Evidence Act, 1872 Back

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