Report No. 69
Improper Admission or Rejection of Evidence
Under section 167, the improper admission or rejection of evidence shall not be a ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision. Section 167 is a verbatim reproduction of section 57 of the Evidence Act of 1855, and the rule has been adopted from the practice of the courts in England.
It is the duty of the courts to arrive at their decisions upon legal evidence only.1 However, lest it should be argued that a breach of this duty by the judge renders the trial illegal and the judgment liable to be set aside, it becomes necessary to provide that the improper admission of evidence shall not be a ground of itself for (i) a new trial or (ii) a reversal of any decision in the case. Similarly, since a court is bound to take on record all relevant evidence unless otherwise provided by a specific provision of law-an obligation which can, to some extent, be deduced from section.-it could have been argued that if admissible evidence has been rejected, the trial is vitiated. Anticipating such an argument, the Legislature has, in section 167, also provided that the improper rejection of evidence shall not be ground of itself for a new trial or a reversal of any decision in the case.
1. Miller v. Madho Dass, (1896) LR 23 IA 103.
98.3. English law.-
Stephen Lush, in his Common Law Practice,1 wrote-"Where evidence has been offered by one party at the trial and has been improperly rejected or admitted by the Judge after hearing the objections of the opposite party, a new trial, as a general rule, may be claimed on the ground that in so rejecting or admitting the evidence the Judge did not rule according to the law". But, he also added that courts had not been in the habit of granting new trial where, even if the evidence rejected is admitted, a verdict for the party offering would be clearly against the weight of evidence or-to take the converse case-where, even without the evidence illegally received, there is enough to warrant the verdict.
1. Stephen Lush Common Law Practice, p. 481, quoted by Field.
98.4. Stephen's view.-
Stephen in his Introduction1 to this Act observed (with reference to the sections concerning relevancy), that "important as these sections are for purposes of study, and in order to make the whole body of law to which they belong easily intelligible to students and practitioners not trained in English Courts, they are not likely to give rise to litigation or to nice distinctions. The reason is that section 167 of the Evidence Act, which was formerly section 57 of Act II of 1855, renders it practically a matter of little importance whether evidence of a particular fact is admitted or not". Of course, he had in mind those cases where the breach of the rules did not cause substantial miscarriage of justice.
1. Stephen Introduction, p. 73.
It may be noted that section 167 applies to civil as well as to criminal cases.1 The word "decision", though generally used as applicable to civil proceedings, is by no means inappropriate to criminal cases. The words "in any case" in section 167 are wide, and were long ago interpreted to include criminal trials by jury2. The position is clear from section 1, which renders the Act applicable to all judicial proceedings, etc. (with certain exceptions), and by section 3, which declares that "Court" includes all Judges and Magistrates.3 In short, the provision contained in section 167 applies to all judicial proceedings in or before any court, including jury trials.4
1. Queen v. Hurribole Chunder Chose, 1874 ILR 1 Cal 207 (217); R. v. Havroji Dadabhai, 9 BHCR 358 (375).
2. Queen Empress v. Ram Chandra Govind, ILR 19 Born 749 (762), Soylimiya Miyabhai v. Empress, AIR 1944 Born 338 (343).
3. R. v. Pitamber Jinn, ILR 2 Born 51 (65, 66).
4. Abdul Rahim v. Emperor, AIR 1945 PC 82 (84).
The significance of section 167 would be best understood if regard is had to the position regarding appeal. Where an appeal lies on points of law, only two questions relating to evidence may arise, namely, that the judge wrongly admitted or rejected evidence, or that there was no evidence upon which the judge could find as he did.1 The first question is the one on which section 167 focusses attention. It prohibits reversal of judgment merely on the ground of a wrong admission or rejection of evidence if other evidence on record justifies the decision under appeal, or if inclusion of the evidence improperly rejected would have made no difference.
1. Cockle Cases and Statutes on Evidence, (1963), p. 405.
98.7. This does not, of course, mean that in no case would the improper admission or rejection of evidence affect the decision. To the saving provision in section 167, an important condition precedent has been annexed, namely, "if it shall appear to the court before which such objection is raised that independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that if the rejected evidence had been received, it ought not to have varied the decision".
The Privy Council observed,1 discussing this aspect:
"It was therefore the duty of the High Court in Appeal to apply its mind to the question whether, after discarding the evidence improperly admitted there was left sufficient around to justify the convictions. The Judges of the High Court did not apply their minds to this question because they considered that the evidence was properly admitted, and their Lordships propose therefore to remit the case to the High Court of Madras, with directions to consider this question. If the court is satisfied that there is not sufficient admissible evidence to justify the convictions, they will take such course, whether by discharging the accused or by ordering a new trial, as may be open to them".
1. Kottava v. R., AIR 1947 PC 67 (71).
98.8. In England, under the Rules of the Supreme Court1-
"(1) On the hearing of any appeal the Court of Appeal may, if it thinks fit, make any such order as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the court below.
(2) A new trial shall not be ordered on the ground of misdirection, or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them, unless in the opinion of the court of appeal some substantial wrong or miscarriage has been thereby occasioned.
(3) A new trial shall not be ordered by reason of the ruling of any judge that a document is sufficiently stamped or does not require to be stamped".
1. Order 58, rule 3, Rules of the Supreme Court.
98.9. No change.- We have no further comments on the section which needs no change.