Report No. 69
E. Queries Raised with Reference to Mayne's Definition
6.73. We shall now deal with several queries raised with reference to Mayne's definition of "judicial proceeding".
Difficulty if likely in criminal trials.-First, it is stated, if the definition is incorporated in the Evidence Act, it is to be carefully considered whether that might create some difficulty in criminal trials, in view of the existing inclusive definition of the expression "judicial proceeding" in the Code of Criminal Procedure, 1973 where it has been defined as follows:
"judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath."
This answer to this query is, that each of these definitions is confined to the respective Acts, and the proposed definition cannot affect the interpretation of the expression as occurring in the Code.
The query has been raised if "affidavit evidence" comes within the scope of "legally recorded evidence". The answer should be "no", because affidavits are not "recorded". It may, incidentally, be stated that section 1 expressly excludes affidavits.
6.74. Prior steps.-
The query is then raised that Mayne's definition is too narrow. According to Mayne's definition, "judicial proceeding" is "any step in the lawful administration of justice in which evidence may be legally recorded for the decision of the matter in issue in the case " Would "judicial proceeding" include only the step in which evidence may be legally recorded? Should not the steps preceding or following the step in which evidence may be legally recorded be included in "judicial proceeding"?
The answer, however, is that the preceding or subsequent steps have no significance for the Evidence Act.
6.74A. Hall-marks of judicial proceeding.-
It has next been stated that the hall-marks of a judicial proceeding are not exhausted by mere recording of evidence. The Committee on Minister's powers1 laid down four essential characteristics of the judicial process:-
(a) a presentation either orally or in writing of the case for each side i.e. joinder of issue;
(b) right of each party to adduce and examine evidence to prove its case (the recording of evidence will come within this characteristics);
(c) arguments by the parties on facts and law; and
(d) a decision disposing of the matter in hand, the findings being based on stated conclusions concerning facts.
1. Donoughmore Committee.
6.75. The query is raised that if the recording of evidence without anything more is made the hall-mark of a judicial proceeding, then, evidence required to be recorded in any proceeding before any administrative tribunal or other authority-such as, an income-tax officer or customs official etc.-will make such proceeding judicial proceeding, although such tribunal or authority may not be a court but may be acting only judicially.
Moreover, it is stated, section 1 of the Evidence Act speaks of judicial proceedings in or before any court. In reply to this query, we may point out that the definition given by Mayne does not make the recording of evidence the sine qua non of a Court. There are other ingredients. Moreover, as regards Income-tax Officers and the like, we may state that section 1 clearly provides that there must be a "court.- an expression which we are going to define.
6.75A. Use of various expressions in the Constitution.-
A query is also raised as to the expression "administration of justice". It has been used in the Constitution, State List, entry 3 and the expression "judicial proceedings" has been used1 in entry 5 and entry 12 of the Concurrent List, but neither of these expressions (it is stated) has been defined in the Constitution. In this connection, we would state that the absence of a definition in the Constitution should not be a material consideration when reviewing an Act where the expression needs, on the merits, to be defined. A statute defines expressions for its own purposes.
1. Constitution, 7th Schedule, State List, entry 3; Concurrent List, entries 5 and 12.
6.76. Necessity of amendment.-
It has been stated that it should be considered whether any definition of "judicial proceeding" is at all necessary; it is stated that the Act has worked quite well without such a definition during the last 103 years. In dealing with this query, we may point out the case law on the subject of statements under section 164, Code of Criminal Procedure and also the judgment of Tulzapurkar J. in Bombay case1illustrate the obscurity as to "judicial proceeding". Hence there is need for a definition.
1.Tanaji Rao v. H.J. Chinoy, (1969) 71 Bom LR 732.
6.76A. Meaning of lawful.-
An objection has been raised that the word "lawful", in the expression "lawful administration of justice", used in Mayne's definition, is unnecessary and redundant.
6.77. In answer to this objection, it may be stated that the contrast is not between 'lawful' and 'unlawful'. The word "lawful" in this context means "according to law", or according to the machinery established by law. We have, in this context, to make a distinction between-
(a) (i) justice in the abstract, and
(ii) justice according to law; and also between
(b) (i) administration of justice by a private tribunal, and
(ii) administration of justice by a public agency.
6.78. Justice in the abstract reminds one of natural law. The view that natural law is written on the hearts of men, is traced back to St. Paul and his letter to the Romans1 where he says-
"When Centiles who have not the law do by nature what the law requires, they are a law to themselves, even though they do not have the law. They show that what the law required is written on their hearts........."
However, when we talk of "lawful administration of justice", we do not merely indicate justice in the abstract which may be described as the ideal relations among men. We refer to justice, according to law, i.e., in accordance with the scheme of a positive legal order. We also imply that the traditional machinery of the law is employed. We are speaking of the (i) principles and (ii) procedure in force in a particular society. Positive law is real, actually existing law, with its own machinery. And what Mayne meant by "lawful administration of justice" was-administration of justice in conformity with the positive legal order as established in a particular society-or, briefly, administration of justice according to law.
1. St. Paul's letter to the Romans, II 14.