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Report No. 69

100.21. Position in England.-

Even in England, a judge is not a mere umpire to answer the question "How's that?" His object above all is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role.1

No doubt, as Lord Bacon sai.- "Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal." But obviously he did not wish to imply that the Judge should be a silent spectator. In this connection, it will be useful to quote what Burke said2 in the Trial of Warren Hastings:

"A Judge is not placed in the high situation merely as a passive instrument of the parties. He has a duty of his own, independent of them and that duty is to investigate the truth."

1. Jones v. National Coal Board, (1957) 2 All ER 155 (157) (CA).

2. Burke quoted in Rangaswami Naicker v. Muruga Naicker, AIR 1054 Mad 169 (170).

100.22. The following comment1 made as to the judicial function in general is not inapplicable to the field of evidence-

"It should not be supposed that because his (Judge's) jurisdiction is limited, because so much of his work goes unreported, because he is immersed in the detail of fact, the trial judge is clothed with small responsibility in relating law to justice. It is he who makes the law become a living teacher, as he transmits it from the legislature and the appellate court to the citizen who stands before him."

1. Cf. Jaeger Praise of Law, in Interpretations of Modern Legal Philosophies, 352 (360-61) (Sayre ed. 1947), quoted in 65 Harvard Law Review 1304.

100.23. Function of the law of evidence.-

We would like to conclude this chapter by quoting the following view of Norton as to the function of the law of evidence:

"The law of evidence is, to the administration of the law, what logic is to all sciences. It is applicable to each and every case tried, whether civil or criminal, and on its being founded on sound principles, and practically understood by those who are concerned in the administration of justic.- Bench and Ba.- depends the right collection of materials on which each particular judgment and decision can alone be rightly founded.

A judgment may be erroneous on a sound collection of facts relevant to the issue, through ignorance or misapplication of the substantive law applicable to the particular case. But no knowledge of the general substantive law can save a judgment from error, if he, whose business it is to collect the facts, has not a practical acquaintance with the law of evidence, which teaches him what facts he ought to gather together, and what to exclude, and why he should gather these and exclude those."1

We believe that the importance of the law of evidence and the role of the Judge could not be put in better words. We should also state that rules of evidence, however perfect they may be, cannot guarantee that truth will be known at the end of the trial. They are designed to ensure that the quest for truth is facilitated; that the process will be carried on in a business like manner; that the field of inquiry will be confined to certain facts; that the boundaries of that field will be defined with a reasonable amount of precision; and that certain essential elements of fairness will be constantly kept in mind.

1. Letter from J.B. Norton Advocate-General to the Government of Madras, (19th Feb., 1869), Evidence Act, file App E.

Indian Evidence Act, 1872 Back

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