Report No. 69

VII. Depositions

42.28. Section 91-Depositions and confessions and other records of evidence.-

The discussion immediately preceding was concerned with bilateral transactions. It may be recalled that section 91 also covers "matters required by law to be reduced to the form of document" and such matters may or may not be bilateral. Amongst the matters required by the law to be reduced to the form of a document are depositions in civil and criminal cases1 and confessions in criminal cases. These are not bilateral. These seem to have raised, in practice, questions of procedure as well as questions of evidence. The two types of questions should be kept distinct from each other.

1. Order 18, rules 5 to 14, Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1973.

42.29. Where the procedure laid down by law for recording the depositions or confessions has not been complied with, the question may arise whether the deposition or confession is valid. We are not, however, here concerned with that question. Such a question arises out of the informality in the procedure; how far such informality is saved, is a matter regulated by the Codes of Civil and Criminal Procedure for example, section 99 of the Code of Civil Procedure, 1908 and similar provisions in the Code of Criminal Procedure.

42.30. Proof of previous statements in a criminal case by oral evidence.-

It is the second type of question, relating to evidence, which is relevant to the present discussion. Some misunderstanding seems to exist as to the admissibility of oral evidence of what the witness or the accused said (in his deposition or confession). Prima facie, such evidence should be regarded as excluded by section 91. The language seems to be fairly clear. Nevertheless, there seems to be some misunderstanding on the subject. By way of illustration, we may refer to a Patna case1 on the subject. In a proceeding under section 145, Code of Criminal Procedure, 1898, (disputes as to immovable property), between Sheo Karan Lal and his brother Sheo Prashad Lal, the petitioner made a statement in cross examination that he (the petitioner) had illicit relationship with the wife of his brother Sheo Prashad Lal.

On the basis of this statement, he was prosecuted under section 500, Indian Penal Code (defamation), on a complaint filed by one Bandi Prashad as the servant of Girki Bai, wife of Sheo Prasad Lal, complaining that she had been defamed by the aforesaid answer given by the petitioner in cross-examination. The point urged by the petitioner in the High Court was that the magistrate had not in the earlier proceeding recorded the exact question and answer forming the subject-matter of the complaint of defamation against him, and that the prosecution was debarred from proving it by an oral evidence of the magistrate who appeared as a witness in the defamation case.

The High Court held that if the Court has made a record of the question and answer, then no other evidence was admissible except by the proof of the statement which was thus reduced to writing. But, in this case, there was no such record of the exact question and answer and, therefore, the prosecution was free to prove by oral evidence the actual words which were the subject of this prosecution. The petitioner was, however, acquitted by the High Court, by giving him protection under section 132 of the Evidence Act.

1. Shea Karen v. Sandi Prashad Lal, AIR 1943 Pat 117 (118) (Manocharan Lal & Chatteiji, JJ.).

42.31. In an Allahabad case1 there was a revision petition against the order of a first class Magistrate lodging a complaint against the applicant under section 193, Indian Penal Code for the offence of perjury. The petitioner had given false evidence during his cross-examination in a criminal case before the Magistrate.

1. Mohd. Farooq v. Rex through Fulfail Ahmad, AIR, 1950 All 501.

42.32. It was argued by the petitioner in the High Court that no prosecution for perjury could be ordered as his deposition was not read over to him as required under section 360 of the Code of Criminal Procedure, 1898. The High Court rejected the petition, and held that the Magistrate or his Clerk who took down the deposition could be examined as a witness during the trial to prove that the accused made the deposition as recorded. The High Court further held that if the prosecution had to prove that the deposition made by the witness was correct, it would have to produce the deposition and section 91, would bar any other evidence. But, when the prosecution, has simply to prove that the witness made the deposition, there is nothing in section 91 to prevent this fact from being proved without producing the deposition itself.

42.33. In another Patna case,1 the accused petitioners were apprehended by a Sub-Divisional Magistrate while smuggling rice from one district to another in violation of law. The accused petitioners admitted this before the Sub-Divisional Magistrate, and made confession in this regard. They were prosecuted subsequently, and, on conviction of the petitioners, the matter came up before the High Court in a revision petition at the instance of the accused.

1. Rishi v. State of Bihar, AIR 1955 Pat 425.

42.34. The first point raised in the High Court was that the confessions made by the accused before the Sub-Divisional Magistrate were not admissible in evidence. It was urged that in view of section 91 the confessional statements made before the Magistrate could not be proved by the oral evidence of the :Magistrate.

42.35. The High Court held that the Magistrate did not record the confessions under sections 164 and 364 of the Code of Criminal Procedure, 1898, apparently because no investigation had commenced. It further held that section 91, Evidence Act, would not be a bar to the admission of oral evidence when a confessional statement is made to the Sub-Divisional Magistrate which he was not bound to record under sections 164 and 364 of the Criminal Procedure Code.

42.36. Reverting to the first mentioned Patna case, with respect, we are not satisfied that the case was correctly decided. On the language of section 91, such evidence cannot be admitted, because the words "any matter required by law to be reduced to the form of a document" in section 91 would, on an ordinary reading, cover statements of the accused and depositions of witnesses required to be reduced to writing.1 Having regard to the terms of the section, we do not think that any other view can be supported. The Allahabad case depends on special facts. The second Patna case is also outside section 91, because once it is held that the confession was not required by law to be reduced to writing, the case is not covered by either branch of the section.

1. See the view expressed by Woodroffe and Amir Ali Evidence, (1958), Vol. 2, p. 975.

42.37. We are making these observations to show the proper scope of section 91. If properly applied, the section does not disclose any ambiguity calling for amendment, and we recommend none.

VIII. Section 91-Exceptions

42.38. Section 91, First exception.-

We now proceed to consider the Exceptions to section 91. The effect of the first exception to the section is that the fact of a person having acted as a public officer can constitute proof of his appointment to the public office concerned. The rationale on which this Exception is based is that due appointment may fairly be presumed from acting in an official capacity, since it is very unlikely that anyone would intrude himself into public situation which he was not authorised to fill, or, that if he wished, he will be allowed to do so. In a sense, that is a particular application of the maxim that official acts are presumed to have been performed regularly1 We do not re-commend any change in the first Exception.

1. Woodroffe, Commentary on sections 79 and 91.

42.39. Section 91, second Exception.-

The second exception to section 91, under which wills admitted to probate in India may be proved by the probate, in effect adds a species of secondary evidence (though not in so many words) to those already recognised by the Act in section 63. Since a probate as such is not included in the enumeration of "secondary evidence" given in section 63, it was necessary to mention it specifically in section 91, it having been provided in the operative part of the section that only the document or its secondary evidence is admis by any other means available in England. It may be noted that in England, Will! can be proved by means of a Probate.1 The Exception needs no further comments.

1. Whicker v. Hume, 7 House Lords Cases 120 (124).

42.40. Other Qualifying provisions.-

It may also be noted that the provisions in the succeeding sections in the Chapter, particularly sections 95 and 96, constitute qualifications1 to the first proposition in section 91, although they are not, strict]) speaking, in the nature of "exceptions".

1. Karappa v.Thoppoth, 1927 ILR Mad 397.

42.40A. Explanations.- The Explanations to the section require no comments.