Report No. 69
1.20. Act 2 of 1855-Important provision.-
In 1855, Act 2 was passed for the further1 improvement of the law of evidence.
The Act of 1855 was the most important legislative enactment prior to 1872 in the field of evidence. We shall briefly summarise its provisions. Sections 2 to 5 of the Act declared that judicial notice should be taken of all Regulations passed before 22nd April, 1834, all Acts of the Governor-General-in-Council, all Public Acts of Parliament, the courts' own members and officers, the name, titles and authorities of the Governor-General and other specified officers; divisions of time; geographical divisions, war and peace, the existence, title and national flags of States recognised by the British Government, Government Gazettes, recitals in laws of facts of a public nature, and advertisements purporting to be published by authority.
Sections 6 to 11 provided that the courts may refer to books, maps and charts on certain matters. Section 12 provided for evidence of foreign law, and by section 13, maps made under the authority of Government or of any public municipal body, when not prepared for the purpose of any litigation in question, were admitted without further proof.
1. As to this Act, see R. v. Gopal Dass, ILR 3 Mad 271. (282).
1.21. As regards the competence to testify, the only persons incompetent to testify were, by section 14, children under 7 years and insane persons, who appear incapable of receiving just impressions of the facts respecting which they were examined or of relating them truly. In the case of children and persons of defective religious belief, sections 15 and 16 substituted a simple affirmation in place of oaths or solemn affirmations.
Section 18 provided that no one was to be incompetent from interest or relationship, and section 19 specifically declared that parties to civil suits might be examined as witnesses. Under section 20, husbands and wives were, in general, declared competent in every civil proceeding to give evidence for or against each other.
1.22. Evidentiary privilege was dealt with in quite an elaborate manner. By section 21, witnesses were exempted from producing documents relating to affairs of State. Section 22 exempted parties from producing documents not relevant to the case of the party requiring production, and also confidential correspondence with legal advisers. Under section 24, barristers, attorneys and vakils were not, without their clients' consent, to disclose professional communications. By section 25, persons present in courts were bound to give evidence even though not subpoenaed. Section 26 exempted persons summoned merely to produce documents from personal attendance.
1.23. Except in the case of treason, the evidence of one witness was made sufficient proof by section 28. But there was no provision abrogating the common law rule relating to corroborative evidence in support of the testimony of an accomplice or of a single witness in the case of perjury. It may be noted that the exception as regards treason was based on the English law as it was then in force, and as it remained in force for a long time until abrogated during recent times1.
By section 29, dying declarations were made admissible even though the declarant expected to recover. It may be noted that this was a departure from the English law, whereunder, to render a dying declaration admissible, the declarant must have abandoned all hopes of recovery. The English case law on the subject upto 1888 is reviewed in R. v. Glossler, (1888) 15 Xox 471. In this connection, section 371 of the Code of Criminal Procedure, Act 25 of 1861, may also be seen, as well as the under-mentioned case2.
1. Treason Act, 1945.
2. Tenoo (in re:), (1871) 15 WR Cr 11.
1.24. Section 30 of the Act of 1855 allowed a party, with the leave of the Court, to cross-examine and discredit his own witnesses. By section 31, certain former statements of witnesses were made admissible to corroborate their testimony. Under section 32, witnesses were bound to answer criminating questions, but the answer was not to be used against them unless they wilfully gave false evidence. The question whether a witness had been convicted of any crime could be put to the witness under section 33, and he might be cross-examined as to previous statements made by him in writing, under section 34.
1.25. Secondary evidence was provided for, as also documentary evidence in general. Thus, by section 36, secondary evidence might be received where an original document was out of reach of process, and by section 35 copies made by a copying machine were deemed to be correct. The Common law regarding attested documents was not modified; but documents which did not require attestation by law could, under section 37, be proved as if unattested; and section 38 provided that the admission of a party to an attested instrument of its execution by himself was, as against him, prima facie, proof of such execution.
1.26. Section 39 provided that entries made against interest or in the course of business were, in certain cases, admissible in the lifetime of the person making them. Under section 40, entries in the course of business were, in certain cases, made admissible for the purpose of identifying the payer or receiver. Sections 41 and 42 made admissible receipts against certain persons other than the giver. Certain books and other documents were made admissible as corroborative evidence under sections 43 and 44.
Witnesses were allowed to refresh their memory by certain documents or copies thereof under sections 45 and 46. Under section 47, in cases of pedigree, the declarations of intimate acquaintances were admitted. Under section 48, on the question of genuineness of a signature etc., comparison of an undisputed signature, etc., was allowed.
Under section 49, a power-of-attorney purported to have been executed before a notary public might, in certain cases, be proved by its production. Sections 50 and 51 provided that despatch and receipt of a letter might be proved by letter books and the receipt book.
Under section 56, an official document admissible by law was made prima facie evidence without proof of any seal etc., which it was directed to have.
Section 57 provided that the improper admission or rejection of evidence was not to be a ground for a new trial where there was other evidence to justify the decision.
1.27. Acts passed after Act 2 of 1855.-
A number of Acts were passed after Act 2 of 1855, as follows:
Act 10 of 1855 (Attendance of witnesses); Act 8 of 1859 (Civil Procedure; contained provisions similar to the present Code provisions as to witnesses); and Act 25 of 1861. The Act of 1861, mainly dealt with Criminal Procedure; but it also contained provisions as to witnesses, confessions, police-diaries, examination of the accused and Civil Surgeon, reports of Chemical Officers, and dying declarations.
Act 15 of 1869 dealt with the evidence of prisoners-provisions which were later placed in the Prisoners Act, 1890 and then in the Attendance of Prisoners Act, 1955, and now in the Code of Criminal Procedure, 1973 (so far as they concern criminal courts).
1.27A. Applicability of English Law.-
These Acts did not affect the applicability of the English law. While, therefore, within the Presidency Towns, the English law of evidence was in force, modified by certain Acts of the Indian Legislature, (of which Act 2 of 1855 was the most important), the Mofussil Courts, on the other hand, had, down to 1872, hardly any fixed rules of evidence, save those contained in scattered Regulations and Acts
English law was, therefore, more or less followed, especially in criminal cases, till express enactments prohibited its operation. Act 2 of 1855, whilst laying down certain isolated rules of evidence, did not prohibit the adoption either of the English law or of the rules of Mohammedan law which, by custom or practice, had been followed by the Courts. Indeed, section 58 of the Act of 1855 expressly laid down that "nothing in this Act contained shall be so construed as to render inadmissible in any Court any evidence which, but for the passing of this Act, would have been admissible in such Court."
The Act, therefore, did not operate to repeal the rules of evidence which existed before, and, although it did not require the Courts to follow the English law or any other particular system of evidence, it did not, at the same time, preclude them from adopting the English rules of evidence where they appeared to be the most equitable.
Position to recapitulate.-To recapitulate, before the passing of the Indian Evidence Act (1 of 1872), India did not have any uniform laws on the subject of evidence.
(a) In the Presidency towns, the rules of the English law of evidence were followed, subject to such modifications as certain Acts of the Indian Legislature had introduced. Of these enactments, Act 2 of 1855 may be said to be the most important, but that Act, even taken with the others, was far too inadequate to supply a substantial code of the rules of evidence.
(b) In the Mufassil, where the English law did not prevail, there were scattered rules of evidence based upon the practice of the Courts, which had never assumed any definite or systematic form.
1.28. Lax Character of the law.-
The lax character of the law of evidence in the Mofussil Courts was the subject1 of frequent judicial comment2. This was the state of things found by the Legislature when the Indian Evidence Act was undertaken as a legislative measure having, for its object, the consolidation of the rules of evidence and repeal of all others that had prevailed before. This appears from the express words of section 2 of the Act; and the saving clause contained in the last paragraph of that section may be taken, in fact, to have an extremely limited operation. The Act became law on the 15th March, 1872, at a time when the Legislature had also in hand an equally important measure connected with the consolidation of the rules of Criminal Procedure3.
1. See observations in-
(a) Unide v. Pemmasamy, (1858) 7 MIA 128 (137);
(b) Hureehur v. Majhee, (1874) 22 WR 355 (356, 357);
(c) Naragunty v. Vengamma, (1861) 9 MCA 90;
(d) Gujju v. Fateh, 1880 ILR 6 Cal 193.
2. Phul v. Suntan, ILR 4 All 249 (250).
3. Queen Empress v. Babu Lal, 1889 ILR 6 All 509: 4 AWN 229.
1.29. Bill by Commissioner.-
The Draft Bill on the subject of evidence was drawn up by Her Majesty's Commissioners, and introduced by Sir Henry Maine, then the Legal Member in Council. This first draft Bill did not, however, meet with approval.
The Bill did not get beyond the first reading, and was pronounced by every legal authority to which it was circulated to be unsuitable to the wants of the country. The chief objection to the Bill was that it was not sufficiently elementary for the officers for whose use it was designed, and that it was, in several respects, incomplete so that it would not supersede the necessity of the judicial officers acquainting themselves with the English law on the subject. In other words, it postulated a considerable knowledge of the English law.
1.30. The first Bill-outline of.-
The Commissioners, believing that the English law of Evidence contained "the most excellent rules derived from most extensive experience", while omitting all that appeared to them unsuited to India endeavoured to adapt the rest to the peculiar requirements of the administration of justice as above described. But the Draft Bill did not meet with approval in India. The Select Committee of the Legislative Council, to which the Bill was referred for report, after a very careful consideration of the draft, arrived at the conclusion that it was not suited to the wants of the country.
The grounds on which this conclusion was based were, in a few words, "that it was not sufficiently elementary for the officers for whose use it was designed, and that it assumed an acquaintance on their part with the law of England, which could scarcely be expected from them".