The Law of Evidence

DHARMASHASTRA NATIONAL LAW UNIVERSITY,
JABALPUR
READING AND REFERENCE MATERIAL
Subject: Law of Evidence
Course: B.A., LL. B (Hons.), Semester V, Session 2021-22
[This material is a compilation of some recommended Articles and Case

Material for Reading, Class Discussion and Deliberation in the Class]
Material Collected and Compiled by:
Gautam Gupta
[Assistant Professor of Law and Course Instructor, DNLU, Jabalpur]
{FOR INTERNAL CIRCULATION & EDUCATIONAL PURPOSES ONLY}

Shifting Trends in Burden of Proof and Standard of Proof: An Analysis of the
Malimath Committee Report
Author(s): Pooja Garg
Source: Student Bar Review , 2005, Vol. 17 (2005), pp. 38-58
Published by: Student Advocate Committee
Stable URL: http://www.jstor.com/stable/44290308
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Notes and Comments
Shifting Trends in Burden of Proof and Standard of

Proof:
An Analysis of the Malimath Committee Report
Pooja Garg*
This note discusses the recommendations of the Committee on

Reforms of the Criminal Justice System (Malimath Committee,
2003) in respect of burden of proof and standard of proof in criminal
law. The note first examines the concepts of burden of proof and
standard of proof and the various meanings attached to them. It then
argues that the Malimath Committee has misread these various
meanings. The second part of this note examines in detail the various
standards of proof applicable in criminal law. The note suggests that
the presumption of innocence and proof beyond reasonable doubt are
not only entrenched in the criminal justice system of India but are
also a part of fundamental rights guaranteed under Article 21 of the
Constitution of India. This note , concludes by suggesting that if the
recommendations of the Malimath Committee were to be adopted in
respect of burden and standard of proof in criminal law , it is likely
that it would not only be struck down as unconstitutional but would
also be in violation of India's international obligations under the
International Covenant on Civil and Political Rights.
I. Introduction
II. Burden of Proof
A. Meaning of 'Burden of Proof'
B. Burden of Proof in case of Reverse Onus Clauses

and Presumptions
C Shifting the Burden of Proof on the Accused
D. Burden of Proof in the case of Exceptions
III. Standard of Proof
A Meaning of 'Standard of Proof'
B. Proof beyond Reasonable Doubt
IVth Year,
Bangalore.

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Shifting Trends in Burden of Proof and Standard of Proof
C 'Clear and Convincing Proof'
IV. Conclusion
I. Introduction
The Ministry of Home Affairs constituted the Committee on Reforms of

Justice System ("Malimath Committee") on November 24, 2000. The
headed by Justice V.S. Malimath, former Chief Justice of the Karna
High Courts, had the task of examining the fundamental principles of cr
as to restore confidence in the criminal justice system.1 This involved
Code of Criminal Procedure, 1973 (wCr.P.Cw), the Indian Eviden
(aI.E.Aw), and the Indian Penal Code, 1860 ("I.P.C').2 The Committee's
to address the arrears of criminal cases, delay in disposal of criminal case
rate of conviction in cases involving serious crimes.3
The terms of reference for the Malimath Committee4 suggest an o

revamping the entire criminal justice system. The Malimath Committ
to carefully analyse the fundamental principles of criminal law ens
Constitution of India. Further, the Malimath Committee was requir
whether there was a need to re-draft the I.P.Q Cr.P.C and the I.E.A. T
of reference required the Committee to make suggestions to allow
disposal of cases and to ensure that the Judiciary, Prosecution an
together to "restore the confidence of the common man in the crim
system."5 Interestingly enough, the notification constituting the Commit
expressly state the reasons for its creation, which fact also finds m
Malimath Committee Report itself. In the Malimath Committee'
purpose of establishing the Malimath Committee is self-evident since
justice system is on the verge of collapse.6
The Malimath Committee sent a detailed questionnaire to over 3000 pe

lawyers, police officers, government officials, forensic scientists and lega
1 This is the opinion of the Committee expressed in paragraph 1.3 of the V

al., Report of the Committee on Reforms of the Criminal Justice
(2003) [hereinafter MALIMATH COMMITTEE REPORT] where it is stated tha
delay in disposal of criminal cases and the low rate of conviction has resu
confidence of the citizens in the existing criminal justice system.
2 Id. 11.6.
3 Malimath Committee Report, supra note 1, 1 1.3.
4 Id. M.l.
5 Maumath Committee Report, supra note 1,11.1.
6 Id. 1 1.3.
39

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Vol 17 Student Bar Review 2005
out of which only 284 responses we

such a poor response cannot be cons
questionnaire was distributed to exp
therefore, it is important to keep in
no way a reflection of what the 'comm
Interestingly, the task that the Com

deliberated upon by several other
made several recommendations b
interference in the functioning of
The National Human Rights Commi
justice system using a human ri
Committees has been to safeguard t
respectively. The Malimath Commit
hindrance in increasing conviction
recommendations made by the Comm
The Malimath Committee Report wa

2003. It has sparked off debates as r
activists claim that the implementatio
the rights that have accrued to th
nations. One of the most debated a
lowering the standard of proof and sh
This note seeks to examine the Malimath Committee's recommendations on the

aspect of burden of proof and standard of proof applied in the criminal justice system.
It is submitted that the recommendations, if implemented, would violate the
fundamental rights of persons under Art. 21 of the Constitution of India in addition
to being against India's international obligations under the International Covenant on
Gvil and Political Rights ("I.GGP.R"). The endeavour is to analyse how these
concepts ('burden of proof' and 'standard of proof') and emerging trends affect the
rights of the accused and whether the departure suggested by the Malimath
Committee Report is in accordance with the well established fundamental principles
of the criminal justice system, and in particular, the presumption of innocence.
Part I of the note discusses the various meanings of the term 'burden of proof' and
the effect of 'reverse onus clauses' and presumptions in various criminal statutes.
7 Siddharth Narain, Rights and Criminal Justice , FRONTLINE, Aug. 30, 2003, available at
http://www.frontlineonnet.eom/fl2018/stories/20030912001708300.htm (last visited June
9,2005).
8 Upendra Baxi, An Honest Citizen's Guide to Criminal Justice System Reform: A Critique
of the Malimath Report , in THE REPORT OF AMNESTY INTERNATIONAL INDIA, THE
(Malimath) Committee on Reforms of Criminal Justice System: Premises,
Politics and Implications for Human Rights 5, 20 (2003).
40

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There are various meanings attached to the term onus probandi or burden of proof.9
It has been opined that the rules of burden of proof are no more than rebuttable
presumptions of law.10 It is important, therefore, to engage in a discussion of the
various kinds of burdens of proof. This issue is also closely linked to the effect of
presumptions and reverses onus clauses, which are discussed in some detail in this
note.
Part II examines the various kinds of standards of proof. In order to understand the
standard of proof applied in India in criminal trials, it must be kept in mind that there
is no provision in the I.E.A. that lays down a particular standard of proof besides that
of the prudent man.11 The Malimath Committee has recommended that there be a
standard laid down in the statute itself and the standard recommended is that of 'clear
and convincing' proof. The jurisprudence developed by the Indian Courts thus far has
clearly incorporated the principles applied in the jury system of the U.K. and stated
that the guilt of the accused should be proved beyond reasonable doubt.12 The note
discusses the trends in various jurisdictions in order to understand fully the
importance of the different (but oft confused) concepts of burden of proof and
standard of proof. This discussion is even more relevant considering the fact that the
Malimath Committee recommendations are diametrically opposed to the view of the
Courts of various common law jurisdictions.
The note also questions the need to deviate from the strict standard imposed on the
prosecution. It is well accepted that the standard of proof that is imposed on the
prosecution is that of proof beyond reasonable doubt. On the other hand, the accused
only has to introduce reasonable doubt in the prosecution's case and prove the
exceptions or defences only on the balance of probabilities. It has been suggested that
this distinction is made since the State is much stronger than the individual and can
9 2 MC Sarkar et al., Sarkar's Law of Evidence 1449 (1999) [hereinafter Sarkar].

10 M Monir, Principles and Digest of the Law of Evidence 1002 (1999) [hereinafter
Monir].
11 The relevant portion of the Indian Evidence Act, 1872, § 3, is: "Proved- A fact is said to
be proved when, after considering the matters before it, the Court either believes it to exist,
or considers its existence so probable that a prudent man ought, under the circumstances of
the particular case, to act upon the supposition that it exists."
12 The following oft quoted passage from Woolmington v. DPP, [1935] A.C 462 illustrates the
importance of standard of proof in criminal law:
Throughout the web of the English Criminal Law one golden thread is always to
be seen, that it is the duty of the prosecution to prove the prisoner's guilt ... If,
at the end of and on the whole of the case, there is a reasonable doubt, created
by the evidence given by either the prosecution or the prisoner... the
prosecution has not made out the case and the prisoner is entitled to an
acquittal. No matter what the charge or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the common law of
England and no attempt to whittle it down can be entertained.
41

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afford to be generous.13 The autho

proof beyond reasonable doubt is n
it delicately balances the rights of
offences that they have committed.
II. Burden of Proof
A. Meaning of * Burden of Proof

Before examining on whom the burden of proof lies in criminal cases, it is
to understand what the phrase ťburden of proof' implies. Burden of proof
the manner in which a case is tried, and by long usage has become the only re
and natural method.14 It has been defined as follows: "On every issue, t
obligation on one party to convince the tribunal of the truth of some pro
fact which is in issue and which is vital to his case."15
The term burden of proof has two distinct meanings:16 Firsdy, legal burd
may be used to indicate the burden of proof on the pleadings which me
rests on the party that asserts the affirmative of an issue.18 This is fix
beginning of the trial and is settled as a question of law.19 Secondly, Ev
13 S.L. Phipson & D.W. Elliot, Manual of toe Law of Evidence 70 (llth
[hereinafter PHIPSON].
14 John Jay McKelvey, Handbook in toe Law of Evidence 94 (5th
[hereinafter MCKELVEY]. It is the onus of proof that refers to the legal oblig
party to satisfy the fact- finder, to a specified standard of proof, that certain fac
See also IJHL DENNIS, THE LaWOF EVIDENCE 369 (2d ed. 2002) [hereinafter DE
15 PHIPSON, supra note 13, at 51. This embodies the Latin maxim et incumbit pr
decity non qui negat. This was also stated in: Joseph Constantine Steamship Li
Imperial Smelting Corporation Ltd., [1941] 2 All E.R. 165. See also PHIL HUXLEY, C
MATERIALS: Evidence 1-7 (1998) [hereinafter Huxley]; SARKAR, supra note 9, at 1
16 P.B. Carter, Cases and Statutes on Evidence 28 (2d ed. 1990) [hereinafte
17 This has been called the 'probative burden' in DPP v. Morgan, [1975] 2 All E.
burden has also been described as 'major burden', 'establishing a case beyond
doubt', 'the risk of non-persuasion' and 'primary burden'. See W.H Jarvis, Pr
Secondary Burdens of Proof in Criminal Law , 5 CRIM. L. Q. 425, 429 (1962) [h
Jarvis].
18 In order to determine the legal burden of proof, it is important to look at the affirmative in
the substance of the issue and not merely the form. See SIR JOHN WÖODROFFE & SYED
Amir AU, Law OF Evidence 2164 (16th ed. 1996) [hereinafter Woodroffe].
19 The burden of proof in this sense does not shift during the course of the trial. See PHIPSON,
supra note 13, at 52. The legal burden is on the party who will lose the case if the
proposition is not made out when all has been said and done.
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burden'20 that may also be used in the sense of adducing evidence in order to establish
a prima facie case upon which the accused may {not must) be found guilty if he does
not tender evidence to create a reasonable doubt.21 However, this is not considered to
be a correct meaning of burden of proof.22 The effect of the prosecution not
discharging the evidential burden is that the charge is dismissed.23 The two aspects of
burden of proof that have been discussed hereinabove have been embodied in
sections 10124 and 10225 of I.E.A respectively.
B. Burden of Proof in case of Reverse Onus Clauses and Presumptions

There are certain legislations that may shift the evidential burden of proof on the
accused. In a criminal trial the evidential burden does keep shifting during the course
of the trial. However, it always lies on the prosecution in the first instance since it is
the prosecution that seeks to assert an affirmative to prove the guilt of the accused.
However, it may be possible that the statute requires the accused to prove certain facts
in the absence of which the Courts may draw a certain inference. This is in the nature
of a presumption which comes into play only after some elements of the offence have
been proved by the prosecution and therefore, it is submitted that it is incorrect to say
that the burden of proof is shifted under these legislations.
It is submitted that the Malimath Committee has confused the legal burden of proof
with the evidential burden of proof.26 The Malimath Committee Report states that
sections 105 to 114A of the I.E .A. shift the burden of proof on the accused.27 This in
20 This burden is also known as 'minor burden', 'adducing evidence at a trial' 'or secondary
burden'. See Jarvis, supra note 17, at 430.
21 Once the prosecution has discharged the prima facie burden, it may be said that the burden
shifts on the accused to adduce evidence in his defence. However, the accused need not
discharge this burden for an acquittal since the persuasive burden of proving the case
beyond reasonable doubt remains on the prosecution at all times. The evidential burden
indicates the duty of going forward with the arguments either at the beginning of the case
or at any time during the trial, since this is a constantly shifting burden. See M.N. HOWARD
ET. AL., PHIPSON ON Evidence 58 (14th ed. 1990) [hereinafter HOWARD].
22 MČKelvey, supra note 14, at 101.
23 Jarvis, supra note 17, at 432.
24 Indian Evidence Act, 1872, § 101:
Burden of proof. - Whoever desires any Court to give judgment as to any
legal right or liability dependent on the existence of facts which he asserts,
must prove that those fads exist.
When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person
25 Indian Evidence Act, 1872, § 102: "On whom burden of proof lies - The burden of proof
in a suit or proceeding lies on that person who would fail if no evidence at all were given on
cither side."
26 This confusion is evident in MALIMATH COMMITTEE REPORT, supra note 1, 15.6 -5.9.
27 Id. 15.6.
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the Malimath Committee's opinion

criminal jurisprudence that the bu
Reliance is placed by the Malimath
10628 of the I.E.A. in order to
Committee also refers to similar in
clauses.
Statutory presumptions, which place an evidential burden on the accused, requiring

the accused to do no more than raise a reasonable doubt, do not breach the
presumption of innocence. The Malimath Committee has rightly observed in the
Malimath Committee Report that such presumptions do not violate Art. 21 of the
Constitution of India.29 The Malimath Committee referred to a number of Supreme
Court decisions to support this proposition.30 Moreover, the Malimath Committee is
correct in so far as it points out that such statutory presumptions are not incompatible
with Art. 14(2) of the I.CCP.R31 These presumptions should be considered in the
same light as common law evidential presumptions. These reverse onus clauses are a
necessary part of preserving the balance of fairness between the accused and the
prosecutor in matters of evidence.32
For example such a reverse onus clause may be found in sections 20 and 54 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 that lay down that a person
who is found in possession of illicit drugs has to prove that he has a licence to justify
such possession in the absence of which the presumption will stand and the accused
may be convicted even without the prosecution proving that the accused was in illegal
possession.33
However, it is submitted that the Malimath Committee's interpretation of these

provisions is incorrect because of the following reasons-firstly, the legal burden always
remains on the prosecution and secondly, the standard of proof required of the
28 Indian Evidence Act, 1872, § 106: "Burden of proving fact especially within knowledge -
When any fact is especially within the knowledge of any person, the burden of proving that
fact is upon him."
29 Malimath Committee Report, supra note l, 1 5.7.
30 K. Veeraswami v. Union of India, (1991) S.CC (Ch.) 734; Sodhi Transport Co. v. State of
Uttar Pradesh, (1986) 2 S.CC 486.
31 International Covenant on Civil and Political Rights, Dec. 16, 1966, art. 14(2), 999 U.N.T.S.
171.
Everyone charged with a criminal offence shall have the right to be presumed innocent
until proved guilty according to law.
32 R v. DPP, [2000] 1 Cr. App. R 275.
33 Radhakisan Parashar v. State, 1988 Cri. L. J. 17, 18. However, in the case of reverse onus
clauses, in order for the presumption to come into play, it is important that the prosecution
first proves beyond a reasonable doubt that the accused was in possession and that the drug
that he was in possession of was an illicit drug, R v. Hunt, [1987] 1 All E.R 1.
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accused can never be beyond the balance of probabilities in a common law system
that seeks to protect the rights of the accused. At the same time, it would not be
incorrect to state that the effect of these provisions is that although the prosecution
has to prove certain elements of the offence beyond reasonable doubt, it does not
have to do so for all the ingredients of the offence. Therefore, the effect of the reverse
onus clause is such that the extent of the legal burden is altered.
Similar provisions are contained in the Prevention of Corruption Act, 1988 which
shifts the evidential burden of proof upon the accused when certain elements of the
offence under the relevant provisions have been proved by the prosecution beyond
reasonable doubt.34 It is submitted that one of the primary problems in the Malimath
Committee Report lies in the logical inconsistency between paragraph 5.7 and
paragraph 5.8 of the Report.35
As has already been discussed, paragraph 5.7 refers merely to the evidential burden of
proof. However, the Malimath Committee Report relies on the shifting nature of
evidential burden of proof to assert that the legal burden on the prosecution to
establish its case beyond reasonable doubt may also shift during the trial. The
Malimath Committee Report has defined presumptions in paragraph 5.7 as: "Legal
devices whereby courts are entitled to pronounce on an issue notwithstanding that
there is no evidence or insufficient evidence."
Clearly this definition of 'presumption' indicates that Court exercises discretion in

applying the presumption because it is a power and not a duty of the Court. That is, it
is not mandatory to make the presumption. It is submitted that the mandatory nature
of the presumption depends on the policy considerations and the intention of the
legislature.36
34 K. Veeraswamy v. Union of India, (1991) S.CC (Cri.) 734. In the U.K., this position was
taken by the Court of Appeal in R v. Girdham, [1983] Cr. App. & 34, 38.
35 The relevant portions of MALI MATH COMMITTEE REPORT, supra note 1, 1 5.8 are as
follows:
It is therefore clear that "proof beyond reasonable doubt" is not an absolute

principle of universal application and deviations can be made by the
legislature. Deviations can take different forms such as shifting the burden
of proof to the prosecution or prescribing a standard of proof lower than
"proof beyond reasonable doubt." As long as the accused has the
opportunity to adduce evidence to nullify the adverse effect such deviation
will not offend arts. 14 or 21 of the Constitution of India.
36 The term "presumption" has been defined by Thayer as "(an aid) to reasoning and
interpretation, which assume the truth of certain matters for the purpose of some given
inquiry. They may be grounded on general experience, or probability of any kind; or merely on
policy and convenience." See Jarvis, supra note 17, at 436. It has also been defined as "a
conclusion which may or must be drawn in the absence of contrary evidence." See PHIPSON,
supra note 13, at 75.
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It is further submitted that the

paragraph 5.7 of the Malimath Com
reverse onus clauses that merely sh
cannot be taken to indicate the Cour
accused. It is submitted that contra
legislature were to expressly shift t
the test of Art. 21 of the Constitu
although not affected by shifting the
shifting the legal burden of proof.
thin ice in suggesting that implement
down as unconstitutional.
This assumption of the Malimath C

the Malimath Committee Report37 wh
concept of presumption of inno
presumption of innocence reflects t
argument that deviation from this
erroneous.
Moreover, the Malimath Committee Report once again relie

statutory presumptions to assert that the legislature is competent t
of proof. The Malimath Committee relies upon section 4 of the
1867 to state that under the statute the prosecution is not req
presence of the accused for the purposes of gambling.39 W
Committee has not taken into account is the fact that the prosecuti
to prove beyond reasonable doubt the presence of the accused in
although it is not required to prove the purpose of such presence. T
onus clause cannot completely do away with the legal burden co
been suggested by the Malimath Committee Report.40 Moreove
suggested earlier in this note, a reverse onus clause may only al
legal burden but cannot affect its nature.
C. Shifting the Burden of Proof on the Accused

When one considers the first meaning of burden of proof as
above, it is easy to reach the conclusion that the burden of proof o
of the guilt of the accused beyond reasonable doubt is always u

38 The doctrine of presumption of innocence depends upon the doct
reasonable doubt. See Vijayee Singh v. State of U.R, AI.R 1
Dahyabhai v. State, AI.R 1964 S.C 1563, 1566-1567.
40 Id.' 527.
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and can never change. If a doubt exists, then the accused should be acquitted.41 The
presumption of innocence implies that the prosecution is required to prove every
ingredient of the offence, even though there may be negative averments V made by
the prosecution.43 The burden of proof is never on the accused to prove his case or
disprove the prosecution's case. The legal burden remains on the prosecution to prove
every essential ingredient of the offence.44
The burden of proof lies on the prosecution to adduce evidence before the Court and
if it fails to introduce any or sufficient evidence, it is an established principle that
acquittal will follow.45 However, if one considers the evidential burden, it constantly
shifts during the trial; the evidential burden may "shift" once the prosecution has
41 Mancini v. DPP, [1941] 3 All E.R 272, 279-280; Woolmington v. DPP, [1935] A.C. 462,
482.
42 For example, in cases of murder, the burden of proving death, as a result of a voluntary act
of the accused and requisite mens rea on the part of the accused is on the prosecution.
t Similarly on charges of rape the burden of proving non- consent by the prosecutrix is on the
prosecution. See Vijayee Singh v. State of U.P., A.I.R 1990 S.C 1459, 1474.
43 See R v. Errington Edwards, [1974] 59 Cr. App. R 213, 217.
44 9 WlGMORE, Evidence 285 (12th ed. 1964); Dennis, supra note 14, at 371. If it was to be
believed that the prosecution has established its case and that the onus was shifted on to
the accused to prove that he isn't guilty, it would go against the presumption of innocence
Therefore, a case is established beyond reasonable doubt only when the evidence tendered
by the prosecution and the accused, if any, is taken as a whole. See Jarvis, supra note 17, at
431. It has been opined that the burden of proof is constant and never shifts during the
course of the trial. It remains to the end on the party who asserted it at the outset. It is
important to keep in mind that when such an assertion is made, it refers to the legal burden
and not the evidential burden. The accused has to create a reasonable doubt once the
prosecution has established a prima facie case. The fact that the accused has to adduce
evidence (if he is not relying on the prosecution case to establish such reasonable doubt) to
create a reasonable doubt indicates that the burden of proceeding, that is the evidential
burden, has shifted on the accused. See MCKELVEY, supra note 14, at 100-101. However,
the Committee has relied upon the Privy Council decision in Mcintosh v. Lord Advocate,
[2003] 1 A.C 1078 for the proposition that a legal burden may be shifted on the defendant
to rebut the assumptions, on the basis that it is not unreasonable or oppressive. It is
submitted that this case does not support the claim made by the Committee for several
reasons. Firstly, the case deals with sentencing procedure as opposed to a criminal trial and
cannot be relied upon to support the argument of the Committee. Secondly, the
assumption provided for in the statute did not deal with presumption of innocence. The
onus which was dealt with in the case was in respect of the source of income of the
defendant. Clearly, this would be within the particular knowledge of the accused. Thirdly,
this case dealt with shifting of the evidential burden and not of legal burden. Therefore, it is
submitted that the conclusions of the Malimath Committee based on interpretations in
respect of this case are incorrect.
45 The fact that evidence may be difficult to obtain or any other excuse including a hostile
witness does not and cannot relieve the prosecution from the burden of proof. See
MCKELVEY, supra note 14, at 97.
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made out a prima facie case against

not adduce evidence to create a reas
adducing evidence if he wishes to pr
evidence, where that other evidence
already bears the legal and evidential b
D. Burden of Proof in the

As has been discussed already, the
prosecution but under section 105 of
to prove special circumstances wh
proviso. The most common illustra
insanity.49 The prosecution has to p
required mens rea . However, the accu
burden of proof in this case is onl
accused is unable to establish his
reasonable doubt as to the mens rea
the offence.51
46 McKELVEY, supra note 14, at 101.

47 DENNIS, supra note 14, at 372.
48 Indian Evidence Act, 1872, § 101: "Burden of proving that case of accused comes within
exceptions - When a person is accused of any offence, the burden of proving the existence
of circumstances bringing the case within any of the General Exceptions... is upon him,
and the Court shall presume the absence of such circumstances."
49 There have been suggestions that the exceptions in common law are restricted to insanity.
The reason for the shifting of the burden in the case of the defence of insanity is that
normally the presumption of mental capacity is sufficient to prove that the accused acted
consciously and voluntarily. The presumption is one of sanity, not responsibility. Although
the prosecution need go no further to prove that the accused has mental capacity, it must
nevertheless discharge the legal burden of proving mens rea. See Bratty v. Att'y Gen. for
Northern Ireland, [1963] AG 386. However, when one considers the cases of R v. Hunt,
[1987] 1 All E.R. 1 and K v. Edwards, [1974] 2 All E.R. 1085, there seems to be no reason
why an implied statutory exception may not be interpreted to go beyond the exception of
insanity. One may consider it dangerous to limit the exception to that of insanity since the
Indian Penal Code itself makes express provisions for other defenses and the burden
should be on the accused to prove that the exception or the defence that he pleads, should
apply to the case once the prosecution has discharged its obligation of proving all the
elements of the offence. Further, even in the U.S. the burden is on the accused when he
takes up the defence of duress, self-defence etc. See generally U.S. v. Bailey, 444 U.S. 394
(1980); Martin v. Ohio, 480 U.S. 228 (1987). However, it cannot be said that this is an
unshifting burden on the accused. See MONIR, supra note 10, at 1047.
50 However, in U.S. v. Westcott, 83 F.3d 1354 (1996) it was held that the standard on the
defence for the purposes of proving insanity is that of clear and convincing proof.
51 Dahyabhai v. State, AI.R. 1964 S.G 1563.
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It is clear from the definition of a presumption52 that it frees the person in whose
favour it acts, from the evidential burden of adducing evidence in the first instance.53
Sections 105 to 114A of I.EA deal with presumptions where the evidential burden is
shifted upon the accused. It may also be argued that in the absence of any evidence
adduced on either side, the presumption prevails in order to establish the truth of the
issue under consideration.54
III. STANDARD OF PROOF
A. Meaning of ' Standard of Proof

The terms 'standard of proof and 'quantum of proof' are usually used interchangeab
to refer to the size of the legal burden of proof. They specify the degree of persuasion
necessary for the legal burden to be discharged.55 Accordingly, "A standard of pro
represents an attempt to instruct the fact-finder concerning the degree of confidence
our society thinks he should have in the correctness of factual conclusions for a
particular type of adjudication."56
There are three distinct standards of proof in common law as pointed out by th
Malimath Committee.57 The three types of standard of proof are firstly, persuasion on
the balance of probabilities. This standard of proof is usually placed on the parties in a
civil action. In a criminal trial, it is for the accused to prove the defence or exception
that he pleads on the balance of probabilities; secondly, proof beyond reasonable
thirdly, standard of clear and convincing proof.
52 This has been discussed previously, see supra note 36.

53 WlGMORE has drawn a distinction between presumption of fact and presumption of law. In
its opinion, presumption of fact is a misnomer and should be discarded as useless.
54 However, the point to be remembered here is that the legal burden on the prosecution t
prove the guilt of the accused beyond all reasonable doubt remains. The prosecution
cannot be freed from this burden by a mere presumption. See generally R v. Lamber
[2002] 2 AC 545. The Court further stated that in the case that a statute contained a
reverse onus clause, it is essential that keeping in mind the various human right
conventions, the burden that is shifted should be read down from a legal burden to a
evidential burden. This position has been followed in R v. Mathews, [2003] 2 Cr. App.
19; In the Matter of: Attorney General Reference, 2004 WL 742010. This was also held b
the European Court of Human Rights in Salabiaku v. France, [1988] 13 EHRR 379.
> 55 P.B. Carter, Cases and Statutes on Evidence 59 (2d ed. 1990).
56 In Re Winship, 397 U.S. 358 (1970).
57 Riley Hill General Contractor, v. Tandy Corporation, 737 P.2d 595 (Oregon, 1987). In U.
v. Fatico, 458 F. Supp. 388 (EDNY 1978), it was estimated that preponderance of th
evidence means some burden of proof over 50%. The test for clear and convincing proo
was deemed to be 70% juror certainty, clear, unequivocal, and convincing evidence at leas
80% juror certainty, and for proof beyond a reasonable doubt, 95% certainty.
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B. Proof beyond Reason

The doctrine of presumption of in
prosecution prove the guilt of t
presumption of innocence is a co
doctrine not only establishes his in
continues to operate till sufficient
reasonable doubt.59 The presumpti
that a contest between the state and
burden were to be on the accused,
guilty in spite of the fact that it may
The standard of proof on the prosec

However, if the burden of an issue
58 It represents the moral and political

supra note 14, at 374. See also Hen
Reasonable Doubt , 81 Marq. L. Rev.
states (internal footnotes omitted):
Although termed a presumption, t
considered both something less t
something more than an evidentiary
can take very different forms and s
weak or strong, require that an a
presumption is effective. The presu
proof. Weak presumptions can be re
very little evidence. If the presum
presumption's limited purpose, and
before it was rebutted, it would ha
would not deserve the significance t
reasonable doubt standard requires t
presented before conviction, a presu
a weak presumption would serve no
innocence is not a strong or conclusiv
understood. Once proven, conclusiv
Thus, the presumption of innoc
presumption.
59 U.S. v. Fleischman, 339 U.S. 349 (1950). This has also been incorporated in various human
rights conventions such as International Covenant on Civil and Political Rights, Dec. 16,
1966, art. 14(2), 999 U.N.T.S. 171.
60 McKelvey, supra note 14, at 375-377; See also Prashanth Venkatesh & Balaji
Subramanian, Presumption of Innocence in Criminal Law , 3 GRIM. L.J. 129, 129 (2000).
61 It has been held that a prima facie case made by the prosecution may be sufficient for
conviction if the accused has not rebutted the evidence that has been led by the
prosecution. Such a view is incorrect since the conviction has to be based on proof beyond
reasonable doubt. One of the fundamental principles of criminal law is the presumption of
innocence and to require the accused to "rebut" the evidence implies that he has to prove
his innocence, which is contrary to the established principles of law.
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the high standards of proof and may merely lead evidence to meet the standard of
balance of probabilities to create a reasonable doubt in the evidence of the
prosecution. The onus of proving the case beyond reasonable doubt never shifts and
remains fixed upon the prosecution throughout the trial.62
The locus classicus on this point is undoubtedly the case of Woolmington v. DPP,63
where Lord Sankey laid down the principles of criminal law that have continued to be
accepted by Courts across common law jurisdictions to this day. The prosecution is
required to prove its case beyond reasonable doubt in order for the Court to convict
the accused. This was also held in Mancini v. DPP 64 where the Court clarified
Woolmington by stating that if there is a reasonable doubt as to whether the act was
"unintentional", an acquittal should follow since the benefit of the doubt always goes
to the accused in a criminal trial.65
The U.S. Supreme Court has also read this standard of proof required in a criminal
trial into the due process clause of the U.S. Constitution.66 One may argue that the
requirement that the prosecution satisfy this standard of proof in India is a
constitutionally protected under Art. 21 of the Constitution.67 Deviation from this
standard by the legislature as recommended by the Malimath Committee is therefore
likely to be struck down as unconstitutional.
The Malimath Committee Report equates the French standard of inner conviction
with preponderance of probabilities. On this basis the Malimath Committee asserts
that lowering the standard of proof will not be in violation of Art. 14(2) of the
I.CCP.&68 The Malimath Committee Report does not provide any argument to
support the proposition that the standard of proof in France is in fact that of
preponderance of probabilities. It is submitted that since the argument itself is flawed,
the conclusion that the correct standard of proof in a criminal trial should not be one
of proof beyond reasonable doubt will not stand the test of Art. 21 of the
Constitution of India.
62 Mancini v. D.P.P., [1941J3 All E.R 272; Woolmington v. D.P.P., [1935] AC 462.
63 [1935] AC 462.
64 [1941]3 All E.R 272.
65 Woolmington v. DPP, [1935] AC 462, 482.
66 Patterson v. New York, 432 U.S. 197 (1977); In Re Winship, 397 U.S. 358 (1970); Martin v.
Ohio, 480 US. 228 (1987). See also CHRISTOPHER B. MUELLER ET. AL., EVIDENCE UNDER
THE Rules 801-816 (4th ed. 2000).
67 The presumption of innocence has been held to be a human right. See Narendra Singh v.
State of M.P., (2004) 10 S.CC 699. It has also been held that, CONST. OF INDIA art. 21 in
view of its expansive meaning not only protects life and liberty but also envisages a fair
procedure. See Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, J.T. 2005 (4) S.C
123.
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Proof beyond reasonable doubt does

unreal or improbable.69 Such doub
acquittal70 since it would raise the
'proof beyond any doubt.' It has
reasonable only if they were free fro
"an imaginary, trivial or a merely p
has been explained by Federal Judicial
the Court should be firmly convinc
charged.74 If there is a real possibility
the benefit of the doubt and acquitted
The test as regards the standard of

down by section 3 of the I. E .A. w
debet , nisi coram deo.7(> The mean
affected by the incidence of the b
adduce evidence before the Court.7
question as to the person on whom
of the standard of proof.
69 The level of proof required is defini

this would mean that the Courts canno
Minister of Pensions, [1947] 2 All E.R
proof and legal proof has to be kept
"proof beyond reasonable doubt". S
Unreasonable doubt is based on the p
defendant's actions and lead to his acqu
Golin Tapper, Cross and Tapper on Ev
70 See Pershadi v. State, AI.R. 1955 All.
71 State of Uttar Pradesh v. Krishna G
system requiring absolute certainty for
require that a juror believe that absolutely
note 58, at 660.
72 The Federal Judicial Center is the r
system of the U.S. It was established b
Judicial Conference of the U.S.
http:/ / www.fjc.gov (last visited June 9
73 This standard is virtually identical
Refocussing the Burden of Proof in Cri
Tex. L. REV. 105, 106 (1999).
74 A modified version of this directio
Jersey, 1996).
75 Pattern Criminal Jury Instructions fo
http://www.mad.uscourts.gov/LocPub
7, 2004).
76 WOODROFFE, supra note 18, at 2156.
77 Mohammad Yunus v. Emperor, AI.K 1923 Cal. 517.
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Section 3 of I.EA merely requires the test of the prudent man to be applied. The
Malimath Committee has equated the prudent man standard to the standard of
preponderance of probabilities.78 However, according to the author, section 3 of
I.EA cannot be read in isolation of other aspects of criminal jurisprudence. The
criminal justice system jealously protects the rights of the accused; this owes its origin
to the presumption of innocence as has already been discussed. Therefore, in a
criminal trial, the prudent man test is that of proof beyond reasonable doubt. Further,
the prudent man test should also be applied to determine the reasonability of the
doubt that needs to be present for an acquittal.79
The Malimath Committee states that the standard of proof prescribed in section 3 of
the I.EA is applicable to civil cases alone and not to criminal trials. In the Malimath
Committee's opinion, the higher standard "of proof in criminal trials has been laid
down by judicial decisions alone.80 It is submitted that this is an incorrect proposition.
The judicial decisions have laid down the higher standard of proof in criminal trials
keeping in mind the requirements of section 3 of the I.EA; it is only prudent that a
higher standard of proof be applied in a criminal trial. Incidentally, the

79 This follows from the prudent man test in the Indian Evidence Act, 1872, § 3 read with the
following statement made by the English Court in R. v. Lambert, [2002] 2 A.C 545:
The principle which is to be applied requires a balance to be struck between
the general interest of the community and the protection of the fundamental
rights of the individual. This will not be achieved if the reverse onus
provision goes beyond what is necessary to accomplish the objective of the
statute.
See also Mcintosh v. Lord Advocate, [2003] 1 A.C 1078, 1082.

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very same point is made in State of W

to later in the Malimath Committee
In Shivaji Sahabrao Bobade v. State

against the artificial meaning given t
The Malimath Committee Report84
point out the problems that may e
doubt.85 However, all that the Suprem
that of proof beyond reasonabl
Moreover, the Malimath Committ
Ram v. State of HP.,86 which ha
81 (1994) 1 S.CC 73, 89-90 where the

We are not oblivious that in a crim
than what is required in a civil pr
intriguing may be facts and circum
against the accused must be prove
requirement of proof cannot lie in
The requirement of proof beyond
even after the introduction of S. 498
Evidence Act. Although, the court'
accused is not held guilty when
complicity of the accused in respec
bome in mind that there is no absolu
and the question whether the char
proved beyond all reasonable dou
circumstances of the case and the
case and the materials placed on rec
82 Malimath Gommitiee Report, su
83 (1973) S.CC (Cri.) 1033, 1039; Sta
(Cri.) 1516, 1525.
84 Malimath Committee Report, su
85 However it is interesting to refer t
Supreme Court:
The dangers of exaggerated devotion to
defence and to the soothing sentime
justice to the victim and the commu
context of escalating crime and escape
beyond reasonable doubt which runs
morbidly to embrace every hunch, h
reflected in the attitude that a thousa
not suffer is a false dilemma. Only re
86 (1973) S.CC (Cri.) 1048.
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adversarial criminal system requires that the presumption of innocence not be read
down.87
Moreover, the Malimath Committee observes:88 "There is considerable subjective

element involved in coming to the conclusion that the doubt is a reasonable one. In
the process, instead of focussing on discovering the truth, attention is drawn to the
doubts and about their reasonableness." It is submitted that this statement by the
Malimath Committee is inherently fallacious on two counts: Firstly, there is no place
for any subjective element since the test of the prudent man in section 3 of the I.E.A-
is clearly an objective test. Secondly, it is unclear how considering the 'reasonableness
of the doubt' is not a step in the process of discovering the truth; after all, truth does
not merely involve conviction of the guilty but more importantly requires that the
innocent be acquitted. Therefore, the very premise on which the Malimath Committee
has based its recommendation to lower the standard of proof is erroneous.
C. ř Clear and Convincing Proof

The concept of "clear and convincing proof" has been developed in U.S. in the cases
of certain socio-economic offences. The Malimath Committee refers to the standard
of clear and convincing proof applied in cases of fraud in U.S.89 Without suggesting
why this standard should be applied in India for all criminal offences, the Malimath
Committee has made the above suggestion. Moreover, there have been no cases that
have discussed what exactly this standard of proof 'indicates. Therefore, it appears that
to apply this standard to the Indian criminal jurisprudence would only create more
problems because of this lack of clarity regarding this concept.
The Malimath Committee relies on the French inquisitorial system to assert that the
standard of proof beyond reasonable doubt is not of universal application.90 However,
the written report submitted by the South Asia Human Rights Documentation Centre
to the U.N. points out that in its discussion of the French inquisitorial system, the
Malimath Committee fails to demonstrate an in-depth understanding of the
underlying ideology, structure, history and political context that produced the criminal
justice system that exists in France today.91
87 The idea that the benefit of doubt always belongs to the accused was reiterated in State of
Rajasthan v. Ani, 1997 S.CC (Qi.) 851; State of West Bengal v. Mohammad Omar, (2000)
S.CC (Cri.) 1516, 1525.
89 /¿1521.
90 Id. 1 5.22.
91 Written Statement of the South Asia Human Rights Documentation Centre circulated by
Economic and Social Council, E/CN.4/2004/NGO/130, available at http://www.
unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.2004.NGO.130.En?Opendocumen
t. (last visited July 8, 2004) [hereinafter Written Statement of the South Asia Human Rights
Documentation Centre].
55

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The Malimath Committee recom

reasonable doubt" be replaced by th
fact is true: "In criminal cases, unle
when, after considering the matter b
states. In India, it has been held tha
of properly under section 403 of the
charge against the accused has to be
be established on the basis of sus
consider the observations made by cer
conviction is proportional to the se
doubt" may vary according to the
economic offences, it is possible th
conviction.94 However, it would be dif
of dishonest misappropriation of prop
amount of money that the accused
for the standard that is to be applied.
However, the danger lies in makin

evident; the standard is lowered onl
of the case. Therefore, as has alrea
embodied in section 3 of I.EA shou
would determine whether the pros
doubt. However, the legal burden o
reasonable doubt should not be alter
92 Narayanan v. Official Assignee, A.I

93 Phipson, supra note 13, at 72. This is
Oriwal Jaiswal, (1994) 1 S.CC 73. It is
the judgment rather than that provided
5.18. In R. v. Hunt, [1987] A.G 352, 3
considered such as the mischief at
considerations such as the ease or diff
burden of proof. To reach this findin
A.C 462; Mancini v. DPP, [1942] AC
A.C 107; K v Edwards, [1974] 2 All E.
94 This follows from the decision in K
held that the balance
b should be struck
the rights of the accused. This has als
704. The South African Constitutional
593 cited from DENNIS, supra note 14,
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IV. Conclusion
In conclusion, it may be stated that the legal burden of proof remains con
affected only by reverse onus clauses that change the nature of the legal
extent that all the ingredients of the offence do not have to be pro
prosecution. However, such reverse onus clauses are usually limited to
offences. Even if the statute seeks to place the legal burden on the ac
be read down so that only the evidential burden is shifted upon the accus
even in the case of presumptions, exceptions and provisos, although
114A of I.E.A. shift the burden of proof to the accused, the burden
evidential burden of proof. The presumptions against the accused are
therefore, the legal burden is never shifted upon the accused.
In the U.K. and U.S. the confusion in respect of the phrase "bey
doubt" has arisen only because of the directions that are given to t
judge.95 However, it is generally accepted that the standard of proof i
beyond reasonable doubt. In the Indian context, since there is no jury
judges do not need to define the phrase and may act on the objectiv
reasonable man to determine whether a doubt is reasonable. Here it i
Lord Justice Denning who relied on Chief Justice Best: "in proportion
enormous, so ought the proof to be clear".96
The phrase seems to have been interpreted by some judges to mean pr

doubt. However, it is submitted that these are mere aberrations and do no
the standard should be lowered. The standard of proof beyond reaso
important in order to safeguard the rights of the accused at trial. The sta
and convincing evidence is ambiguous and has been applied only in the
economic offences such as fraud in U.S. This is because such offences
and criminal elements. To apply this standard to all offences under crimi
be to tear apart the foundations of criminal law.
The Malimath Committee proposes to do away with the presumptio

and lower the standard of proof, which will violate the presumption of in
enshrined in Art. 14(2) of the I.CCP.& and other human rights conv
95 Victor v. Nebraska, 511 U.S. 1 (1994); U.S. v. Vavlitis, 9 F.3d 206, 212 (1st G
Campbell, 874 F.2d 838, 843 (1st Cir. 1989).
96 Bater v. Bater, [1951] P. 35, 37. Although this was a divorce proceeding
Denning observed that the phrase "reasonable doubt" may be used in a div
in a criminal case but in the former could not be interpreted with the same
standard required in a criminal case. He went on to state that even
prosecution, the standard varies according to the crime. For a similar v
Singh v. State of U.P., AI.R. 1990 S.C 1459, 1476.
97 Written Statement of the South Asia Human Rights Documentation Centre,
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Malimath Committee Report's focu

and punitive measures, weakening
accused, relaxing the presumpt
recommended as the surest way of cr
Therefore, it is submitted that th

regards shifting the burden of pro
standard of proof to clear and con
accused are clearly an important
therefore, to abrogate these in the
Committee Report attacks the ver
merely required making suggestion
criminal jurisprudence in the Const
proposing reforms that are clearly u
The legal burden of proof should o

asserts and moreover, considering th
is only fair to expect the State to
Malimath Committee Report fails
decisions have deviated from these
rule that have been made considering
98 Pratap Bhanu Mehta, Presumed to b

http://www.countercuments.org/hr-m
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SCC Online Web Edition, Copyright © 2020
Page 1 Sunday, August 09, 2020
Printed For: Gautam Gupta, University of Petroleum & Energy Studies
SCC Online Web Edition: http://www.scconline.com
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
22 JILI (1980) 322
Admissibility of Illegally Obtained Evidence
ADMISSIBILITY OF ILLEGALLY OBTAINED EVIDENCE

by
S.N. Jain*
I Introduction
AT TIMES the functionaries of the state may indulge in illegal methods for obtaining
evidence in their zeal to bring the culprits to book. The evidence may be reliable, yet;it
raises the question of admissibility because it is tainted with illegality. The Indian
Evidence Act docs not give an answer to this question, except that section 27 of the
Act provides that if anything is discovered in consequence of information received from
a person accused of any offence, in the custody of a police officer, so much information
as relates distinctly to the fact thereby discovered may be proved. It is obvious that
section 27 will apply even though the information may have been obtained by the
police through means not fair. Apart from this statutory countenance of unfair means
in obtaining evidence, should as a matter of policy illegally obtained evidence be
allowed to be admitted in evidence? There are several methods by which evidence may
be illegally obtained, e.g., by eavesdropping, illegal search, violating the body of a
person and other methods which shock the human conscience.
II Indian judicial decisions
The general approach of the judiciary has been not to exclude the illegally obtained
evidence on the ground that the method of collection adopted by the authorities does
not affect its reliability and hence it is admissible on account of its relevance at the
trial, with a few exceptions.
We may begin with the latest case on the subject, namely, State of Maharashtra v.
Natwarlal Damodardas Soni.1 Here the premises of the accused were searched and
gold was seized by the authorities. He was as a consequence charged with certain
offences. His contention was that as the search was illegal the seizure was
inadmissible in evidence. It was held, assuming that the search was illegal, it did not
affect the validity of the seizure and its admissibility in evidence. At the most the
court may be inclined to examine carefully the evidence relating to the seizure.
In Bai Radha v. State of Gujarat,2 it was held that non-compliance with some of the
provsions relating to search would not affect the admissi
Page: 323
bility of the evidence so collected unless a prejudice was caused to the accused.
The question of admissibility of illegally obtained evidence has also occurred in the
context of illegal searches by the tax authorities. There has been a conflict of opinion
amongst the High Courts whether evidence collected through an illegal search can be
used by the department. The Mysore High Court3 held that such an evidence could not
be used but the Allahabad,4 Madras,5 and Delhi High Courts6 took a contrary view. In
Pooran Mal v. Director of Inspection,7 the Supreme Court held that there was no
constitutional or statutory bar in using such evidence.
In R.M. Malkani v. State of Maharashtra8 the police had used an eavesdropping
device to tape record conversation between the accused and a third person about the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
demand of bribe by the former. The accused contended that he could not be convicted
of the charges of corruption on the basis of the evidence of tape recordings illegally
obtained. The court held the evidence to be admissible, and said that there was
warrant for the proposition that even if evidence is illegally obtained it is admissible.
However, the court made the significant observation that “the Police Officer is more
likely to behave properly if improperly obtained evidence is liable to be viewed with
care and caution by the Judge.”9
Finally, in Ukha Kolhe v. State of Maharashtra,10 the blood of the accused was taken
to determine whether he had committed an offence under the Bombay Prohibition Act.
The procedure prescribed in section 129A of the statute was, however, not followed in
that matter. There was a provision in the statute which said that nothing in section
129A “shall preclude the fact that the person accused of an offence has consumed an
intoxicant from being proved otherwise than in accordance with the provisions of this
section.” Relying on this provision the majority, four to one, held that the evidence
collected in the case was admissible. But the dissenting judge held that in proving the
alcoholic content of the blood the specific procedure prescribed in section 129A must
be followed. Since this was not done, the result of the blood examination could not be
admissible in evidence.
The overwhelming judicial view is thus that illegally obtained evidence is admissible
except where a prejudice is caused to the accused. Further, such an evidence is to be
viewed with care and caution.
Page: 324
III Arguments for and against excluding evidence

There are arguments both in favour and against using such evidence.11 These may
be briefly mentioned. The arguments for excluding such evidence are:
(1) that, in the absence of other remedies, the rules are necessary to deter the
illegal methods of obtaining evidence, (2) that, by eliminating the apparent
condonation of illegal police practices, they contribute towards respect for the legal
system, and (3) that they free judges from what is felt by some of them to be
repugnant complicity in the “dirty business.”12
There are also arguments for not excluding such evidence. They arc: (1) the evidence
illegally obtained is true and reliable and what the courts need is reliable evidence to
decide issues before them. (2) Exclusion of such evidence does not give any remedy
against the illegality because the illegality has already taken place. The exclusion has
the effect of acquitting the accused against whom the society is entitled to protection.
The effect of exclusion is that both the accused and the person who committed
illegality in obtaining evidence escape. (3) For obtaining the evidence illegally, the
offending person should be punished.
IV Comparative position and evaluation
In the United States, the problem has mainly arisen in connection with the unlawful
search and seizure by the police. The approach of the U.S. Supreme Court has been
that so far as federal crimes are concerned, the search and seizure clause of the Fourth
Amendment13 bars the admissibility of evidence obtained through illegal means.14 In
recent years there has been an extension of this principle. Till 1961 the U.S. Supreme
Court had not imported any bar to the admissibility of illegally obtained evidence in
the “due process” clause of the American Constitution.15 The result was that in case of
a state prosecution for a state crime, the court permitted illegally obtained evidence to
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
be admitted in evidence, since search and seizure clause did not apply to the states.
In the year 1961, however, the court overruling its earlier decision in Wolf
Page: 325
v. State of Colorado16 held in Mapp v. Ohio,17 a five to four decision, that under the
“due process” clause, evidence obtained by a search and seizure in violation of the
Fourth Amendment is inadmissible in a state prosecution for a state crime.
Some of the arguments of the U.S. Supreme Court in excluding such evidence were
that the purpose of exclusion was “to deter—to compel respect for the constitutional
guarantee is the only effectively available way—by removing the incentive to disregard
it” and “nothing can destroy a government more quickly than its failure to observe its
own laws, or worse, its disregard of the charter of its own existence.” It may be
mentioned that by 1949 only seventeen states of the United States had adopted the
exclusionary rule but by 1961 when the Mapp case was decided, approximately half of
the states had adopted the rule. The Mapp ruling has not been extended by the court
to exclusion of evidence in civil and other non-criminal proceedings. Thus, it was held
in United States v. Janis18 that the exclusionary rule did not apply to an Internal
Revenue Service proceeding (a civil action) where the illegal search had been
conducted by local police. The court stated:
Clearly, the enforcement of admittedly valid laws would be hampered by so
extending the exclusionary rule, and, as is nearly always the case with the rule,
concededly relevant, and reliable evidence would be rendered unavailable.19
In United States v. Calandra,20 it was held that a witness summoned to appear and
testify before a grand jury may not refuse to answer questions on the ground that they
are based on evidence obtained from unlawful search and seizure.
In the United Kingdom the position is the same as in India as held by the courts.
The English law is very well summarised in the following extract:
Provided the evidence is relevant, it will be admitted, though this is subject to a
discretion of the judge to exclude evidence obtained unlawfully of its admission
would operate unfairly against the accused. Relevant factors in this regard will
include the position of the accused, the nature of the investigation, and the
seriousness of the charge. In almost all cases where evidence is obtained
unlawfully, it appears that this discretion will not be exercised, and it is submitted
that the evidence will not be excluded for
Page: 326
possible unlawfulness of the relatively unserious type discussed previously.21
The law is the same in Canada22 and New Zealand.23

Since the adoption of the exclusionary rule in the United States, there has been
controversy going on whether it is a sound rule Some of the safeguards suggested, in
place of the exclusionary rule, for ensuring compliance of the law by the functionaries
of the state are: (1) Criminal sanctions against law enforcement officers if they violate
federal or state criminal laws. (2) Civil suits against transgressing officers brought in
state or federal courts by parties who allege that their rights have been violated. (3)
Departmental assistance that proper procedures be used by officers and departmental
discipline against offending officers.24 In May 1971, the American Law Institute
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
recommended that the present exclusionary rules in the United States be modified.
“Instead of automatically suppressing evidence when there is a violation, as is now
required under the present exclusionary rule, the trial judge could admit the evidence
(1) if the trial judge found that the violation was less than flagrant, and (2) that
excluding the evidence would deter police from similar invasions of privacy in the
future, (3) unless the defendant could prove that the police violation of the
constitutional or legal rights of the defendant was ‘wilful’.”25
Even in the United Kingdom there are adverse comments on the English
inclusionary rule. It has been stated by a legal scholar:
But even if Mapp v. Ohio excludes too much the English rule is too inclusive. As
Professor John Rear suggested (The Times, 7 August, 1977) rather than the
discretion to exclude being used “very exceptionally” it should be exercised in all
cases except where the unlawfulness of the seizure was technical and/or the offence
disclosed by the seizure was really serious. The notion that lip service to
fundamental principles permits their rejection in practice should be firmly
rejected.26
In India, there are additional reasons why the exclusionary rule should be followed.
The basis of the exclusionary rule is that other available
Page: 327
safeguards are not enough to deter officials from taking recourse to illegal means in
obtaining evidence. In India, either because of the lack of vigilance on the part of the
individual or because of the psychological feeling of not annoying the officials or the
department with whom his case is pending, or because of the lack of co-operation
from other institutional agencies, these traditional safeguards do not seem to be of
any utility, and therefore, there seems to be necessity of adopting the American
exclusionary rule. Or in any case instead of obtusely holding that illegally obtained
evidence could be used by the government or police, it may be left to the discretion of
the courts whether to permit the use of such evidence by the department or not, and
the courts may exercise their discretion on the lines suggested by the American Law
Institute. This would act as a restraint on the department the committing illegalities
during search and seizure and at the same time the court may decide about the
admissibility of evidence collected through illegal means in individual cases on the
facts and circumstances of each case.
———
* LL.M., S.J.D., Director, The Indian Law Institute, New Delhi.
1
A.I.R. 1980 S.C. 593. See also Radhkishan v. State of U.P., (1963) Supp. 1 S.C.R. 408.
2 A.I.R. 1970 S.C. 1396.
3 Harikisandas Gulabdas & Sons v. State of Mysore, 27 S.T.C. 434 (1971).
4
Agrawal Engineering Stores v. State of U.P., 29 S.T.C. 446 (1972).
5 S. Natarajan v. Joint Commercial Tax Officer, 28 S.T.C. 319 (1971).
6 Balwant Singh v. R.D. Shah, 71 I.T.R. 550 (1969).
7
93 I.T.R. 505 (1974). The case was followed by the Kerala High Court in Verghese Verghese v. Commissioner
of Agricultural Income Tax, 105 I.T.R. 732 (1976).
8 A.I.R. 1973 S.C. 157.
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9 Id. at 163.
10
A.I.R. 1963 S.C. 1531.
11See a note by S.N. Jain on admissibility of illegally obtained evidence, Blood taken by a Doctor: Whether the
Result of Test Admissible in Evidenc:— Ukha Kolhe v. State of Maharashtra, 5 J.I.L.I. 295 (1963).
12 8 Wigmore On Evidence, s. 2184a, p. 15 (1961).
13
The Fourth Amendment reads: “The right of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures shall not be violated……”
14 Weeks v. United States, 232 U.S. 383 (1914).
15 This was the holding of Wolf v. State of Colorado, 338 U.S. 25 (1949).
16
Ibid.
17 367 U.S. 643 (1961).
18 428 U.S. 433 (1976).
19
Id. at 447.
20 414 U.S. 338 (1974).
21 C.P. Walker, Police Surveillance by Technical Devices, 1980 Public Law 184 at 190-91.
22
Hogan v. The Queen, (1975) 2 S.C.R. 547; The Queen v. Wray, (1971) S.C.R. 272.
23See Orchard, A Rejection of Unfairly Obtained Evidence: A Commentary on Hall v. Police, 1976 N.Z.L.J. 434.
For a survey of the legal position in various countries, see The Exclusionary Rule Regarding Illegally Seized
Evidence: An International Symposium, 52 J. of Cr. Law, Crim. and Police Science 245-292 (1961).
24 Gardner and Manian, Principles and Cases of the Law of Arrest, Search and Seizure, 84-85 (1974).
25
Id. at 85.
26 Warwick McKean, Searches and Sandwiches 37, Camb. L.J. 200, 202 (1978).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
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(1983) 3 SCC J-32
Article 21 and ‘Due Process’ and ‘Exclusionary Rule of Evidence’
ARTICLE 21 AND ‘DUE PROCESS’ AND ‘EXCLUSIONARY RULE OF EVIDENCE’

by
A.M. Bhattacharjee*
— Articles of Mr Solil Paul on due process (1983) 1 SCC (Jour) 1-10) referred to —
Position of due process after Cooper and Maneka Gandhi cases — The two cases
discussed — Constitution of India — Arts. 13, 14, 21, 372 (1) and 245 (1) — Due
process covered by Art. 14 — Case laws on reasonableness referred to — Exclusionary
rule of evidence in U.S.A. and in India discussed by reference to case laws — Mode of
obtaining evidence — Need not to satisfy the principle of reasonableness theory —
Conclusion
In a recent article published in this journal1 , Mr Solil Paul has raised a very
interesting and pertinent question under the caption “Was ‘due process’ due?”, and
whether or not one agrees with all that he has said, anyone interested in the study of
our Constitutional law would find his article to be sufficiently thought-provoking. Every
law person in India can not but be eagerly anxious to know as to whether ‘due
process’, which died so many times in our Constituent Assembly and then in our Apex
Court, has really resurrected in and through Cooper2 and Maneka3 , so much so that
Justice Krishna Iyer could proclaim in Sunil Batra4 that though “our Constitution has
no ‘due process’ clause”, yet “in this branch of law, after Cooper2 and Maneka Gandhi3 ,
the consequence is the same”.
In Cooper2 , the Supreme Court declared that if a law sought to deprive a citizen of
his property, then, even though such a law was made by a competent legislature on a
matter within its legislative competence and thus prima facie satisfied the
requirements of Article 31 (now repealed), the same was further required to satisfy
the requirements of Article 19 also. And following Cooper2 , the Supreme Court
declared in Shambhu Nath5 that if a law seeking to deprive a citizen of his property in
accordance with the provisions of Article 31, was to satisfy the requirements of Article
19 also, then a law seeking to deprive a citizen of his ‘personal liberty’ in accordance
with the provisions of Article 21, must also satisfy the requirements of Article 19, if by
such law any of the rights conferred by Article 19 was also affected. And following
Cooper2 , Shambhu Nath5 and other decisions, the Supreme Court in Maneka3 had
declared that “if a law depriving a person of ‘personal liberty’ and prescribing a
procedure for that purpose within the meaning of Article 21 has to stand the test of
one or more of the fundamental rights conferred under Article 19, which may be
applicable in a given situation, ex hypothesis it must also be liable to be tested with
reference to Article 14”.
It is said that it was not necessary for us to wait for about these three decades to
know from Maneka3 in 1978 about this interplay between Articles 21, 19 and 14 and
that in declaring this inter-relationship between these
Page: J-33
Articles in Maneka3 , the Supreme Court has only stated expressly and explicitly what is
implicit and obviously implied in Article 372(1), Article 245(1) and, more particularly,
in Article 13. Under Article 21, deprivation of personal liberty can only be effected
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according to procedure established by law and both our pre-Constitution laws in force
and our post-Constitution State-made laws having been expressly made “subject to
the provisions of this Constitution” under Article 372(1) and Article 245(1)
respectively, and, in particular, both such pre-Constitution and post-Constitution laws
having been vetoed by Article 13 to the extent they are inconsistent with or take away
or abridge any of the fundamental rights conferred by any of the Articles in Part III, it
is said that it is obvious that all laws, including any law within the meaning and for the
purpose of Article 21, must satisfy the requirements of Article 14, Article 19 and all
the other Articles in Part III, whichever may be attracted in a given case.
But what was not that obvious before Maneka3 is that “the principle of
reasonableness—legally as well as philosophically—is an essential element of equality
or non-arbitrariness” and “pervades Article 14 like a brooding omnipresence and the
procedure contemplated by Article 21 must answer the test of reasonableness in order
to be in conformity with Article 14” and that “even on principle, the concept of
reasonableness must be projected in the procedure contemplated by Article 21 having
regard to the impact of Article 14 on Article 21” and that the procedure “must be ‘right
and just and fair’ and not ‘arbitrary, fanciful or oppressive’ ”.
Now, if reasonableness is an essential element of and all pervasive omnipresence in
Article 14 and, if, as already noted, under the mandate of Article 372(1), Article 245
(1) and, in particular, of Article 13, all laws, including laws providing for deprivation of
personal liberty within the meaning of Article 21, must satisfy the requirements of all
the Articles of Part III, including Article 14, then one would like to think that all laws
depriving a person of ‘personal liberty’, and not merely the procedures prescribed by
or under them, must also be reasonable, because (to borrow from Justice Krishna Iyer
in Sunil Batra4 ), what is “unarguably unreasonable”, “is shot down by Article 14”. If
fact, Justice Krishna Iyer in Gudikanta6 and Babu Singh7 , clearly and categorically
declared that deprivation of personal liberty would be permissible under Article 21
“only when the law authorising it is reasonable” and in Hoskot8 , while speaking for a
three-Judge Bench, the learned Judge reaffirmed what he stated in Maneka3 in his
separate but concurring judgment, namely, “ ‘procedure’ in Article 21 means fair, not
formal procedure” and “ ‘law’ is reasonable law, not any enacted piece”. But in the
later decision in A.K. Roy9 , however, the majority has observed that “the power to
Judge the
Page: J-34
fairness and justness of procedure established by a law for the purposes of Article 21
is one thing”, but “the power to decide upon the justness of the law itself is quite
another thing” and “such power springs from a ‘due process’ provision such as to be
found in the Vth and XIVth Amendments of the American Constitution by which no
person can be deprived of life, liberty or property ‘without due process of law’ ” and it
appears to have been ruled by the majority that the latter power, namely, the power
to Judge and decide the reasonableness of the law itself, is not available to the courts
in India in the absence of such ‘due process’ provision.
It is said that if, in spite of deliberate and considered refused by our Constituent
Assembly to incorporate the ‘due process’ provisions in the draft Article 15, which was
subsequently enacted as the present Article 21, its resurrection or rehabilitation is
permissible in the guise of reasonableness in the equality clause of our Constitution,
then one might have to conclude that the Indians, while rejecting the incorporation of
the ‘due process’ provision after such a long and thorough debate in the Constituent
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-
Assembly10 , nevertheless failed to realise that such a provision was already covered by
the equality clause in Article 14 and that the Americans also failed to realise that
specific incorporation of a ‘due process’ clause in the Fourteenth Amendment was not
that necessary when they were incorporating the equality clause in that very
amendment.
Be that as it may, the majority decision in A.K. Roy9 , while ruling out any challenge
to the law itself on the ground of reasonableness, has nevertheless maintained the
right of the parties to challenge and the power of the courts to invalidate the
procedure prescribed by any law providing for deprivation of personal liberty on the
ground that such procedure is not reasonable and right and just and fair. It is true
that Justice Bhagwati in his dissenting judgment in Bachan Singh11 has again
declared, relying inter alia on his earlier judgments in Maneka3 and Francis12 , that “the
word ‘procedure’ in Article 21 is wide enough to cover the entire process by which
deprivation is effected and that would include not only the adjectival but also the
substantive part of the law” and in order to emphasise that both the procedural and
the substantive parts are to satisfy the same test, he declared further that “every facet
of the law which deprives a person of his life or personal liberty would, therefore, have
to stand the test of reasonableness, fairness and justness in order to be outside the
inhibition of Article 21”. But while this dissenting judgment of Justice Bhagwati was
delivered on August 16, 1982, he was already a party to the majority decision in A.K.
Roy9 , delivered by Chief Justice Chandrachud on December 28, 1981, where, as
already noted, the power of the courts to decide the reasonableness of the law itself,
as distinguished from the procedure prescribed thereunder, has been ruled out. It is
again
Page: J-35
true that Chief Justice Chandrachud, who, speaking for the majority in A.K. Roy9 , ruled
out the power of the courts to scrutinise the reasonableness of the law itself, as
distinguished from the procedure prescribed thereunder, has nevertheless observed in
Mithu13 that “if a law were to provide that the offence of theft will be punishable with
the penalty of the cutting of hands, the law will be bad as violating Article 21”. It is,
however, said that invalidation of such a law on the ground of the sentence being
shockingly disproportionate or ‘savage’ can only be upheld if the courts are granted
the power to test the reasonableness of the substantive law also or the substantive
portion of the law. May be, these and other factors led Mr Solil Paul to conclude that
the Supreme Court is in a ‘dilemma’ and has ‘stumbled’ or ‘blundered’ in projecting
reasonableness of Article 14 in Article 21.
But even if the Supreme Court has spoken in different voices over all these years
about the jurisdiction of the courts to scrutinise the reasonableness of the substantive
law or the substantive portion of any law providing for deprivation of personal liberty,
this much appears to have become settled beyond the pale of all controversies that
procedural reasonableness has doubtlessly been made a part of Article 21 and (to
quote from the majority judgment in Bachan Singh14 , cited with approval in Mithu13 ,
Article 21, with the gloss put thereon in Maneka3 and other later decisions, is now to
be read as:
“No person shall be deprived of his life or personal liberty except according to
fair, just and reasonable procedure established by valid law.”
But even if that much only has been settled and only procedural reasonableness,
and not the reasonableness of the substantive law providing for deprivation of
‘personal liberty’, has been made a part of Article 21, it is said that the Supreme Court
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has on many occasions failed to demonstrate that it is fully alive to its own
amplification and expansion of Article 21 and that if that Article has now been
construed to include procedural reasonableness as its essential element, then it is not
easy to reconcile many of its decisions, some of which are post-Maneka3 also, with this
new Constitutional hymn and reference is made, amongst others, to those decisions
where the Supreme Court may be regarded to have declined to adopt and approve the
exclusionary rule of evidence in criminal trials.
The exclusionary rule of evidence is mainly an American product and owes its origin
to the IVth Amendment and the XIVth Amendment of the American Constitution, the
former guaranteeing “the right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and seizures” and the latter
prohibiting deprivation “of life, liberty and property, without due process of law”. The
American Supreme Court formulated this exclusionary rule as early as in 1914 in
Weeks v. United States15 declaring that evidence obtained by federal agents in
violation of
Page: J-36
the prohibition in the Fourth Amendment against unreasonable search and seizure was
to be excluded in federal trials and in Mapp v. Ohio16 in 1961 this rule was extended to
State trials also on the ground that the IVth Amendment rights were so fundamental
to the concept of ‘ordered liberty’ that they required to be protected not only against
federal actions but were to be equally protected against State actions also by
incorporating, so to say, the exclusionary rule in the ‘due process’ clause of the
Fourteenth Amendment. The common law rule that “the criminal should not go free
because the constable has blundered” was accordingly rejected by the American
Supreme Court.
It is said that in India, however, a long catena of decisions of the Supreme Court
appears to have ruled out the exclusionary rule of evidence. Though, as already noted,
Justice Sarkaria, speaking for the majority in Bachan Singh17 in May 1980, has pointed
out that Article 21, as expanded by the Supreme Court in Maneka3 and other
decisions, is now to be read as “no person shall be deprived of his life or personal
liberty except according to fair, just and reasonable procedure established by
law” (and this observation has been cited with approval by Chief Justice Chandrachud
while speaking for the majority in Mithu13 in April 1983), in Natwarlal17 , however,
decided in December 1979, Justice Sarkaria, speaking for a two-Judge Bench, has
ruled that illegality of the search will not vitiate the seizure or shut out any evidence
collected thereby and quoted with approval the observations in the earlier three-Judge
Bench in Radhakishan18 as hereunder:
“So far as the alleged illegality of the search is concerned, it is sufficient to say
that even assuming that the search was illegal the seizure of the article is not
vitiated. It may be that where the provisions of Sections 103 and 165, Code of
Criminal Procedure are contravened, the search could be resisted by the person
whose premises are sought to be searched. It may also be that because of the
illegality of the search the Court may be inclined to examine carefully the evidence
regarding seizure. But beyond these two consequences no further consequence
ensues.”
To the same effect is the decision of a later three-Judge Bench in Bai Radha19 ,
which has been relied on in a later two-Judge Bench decision in Shyam Lal20 , which in
its turn has been relied on in Natwarlal17 . A much earlier three-Judge Bench decision
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-
in Sunder Singh21 is also to the same effect, namely, that contravention of or non-
compliance with the provisions of the Code of Criminal Procedure relating to search
and seizure would only affect the weight of the evidence and not its admissibility. But
in all these
Page: J-37
cases, the point for consideration was the effect of violation of or non-compliance with
the provisions relating to search and seizure as contained in Sections 103 and 165 of
the Code of Criminal Procedure, 1898, and other analogous statutes on the criminal
trials that followed and these cases, therefore, attracted the provisions of Section 537
of the Code, whereunder all such error, omission or irregularity stood cured unless in
fact a failure of justice could be demonstrated and in Bai Radha19 and the other cases
referred to therein, Section 537 of the Code was in fact referred to and relied on. In
fact in Bai Radha19 , which was a case under the Suppression of Immoral Traffic in
Women and Girls Act, 1956, the earlier decision in Ram Singh,22 which was also a
decision under the same Act, was distinguished on the ground that there the police
officer who conducted the search was not a special police officer who alone could
investigate under the said Act and it was observed that “there is hardly any parallel
between an officer conducting a search who has no authority under the law and a
search having been made which does not strictly conform to the provisions of the Act”
and it is, therefore, said that these decisions are not authorities for the proposition
that evidence collected as a result of any illegal search is not to be excluded, even
though the search is without jurisdiction.
In an earlier five-Judge Bench decision of the Supreme Court in Ramkishan

Shrikishan Jhaver23 , it was, however, ruled that if “the safeguards provided in Section
165 of the Code of Criminal Procedure were not followed, anything recovered on a
defective search of this kind must be returned”. The case arose out of a batch of writ
petitions filed for the return of the articles seized on the ground that the search and
seizure were not in accordance with the relevant provisions of the Madras General
Sales Tax Act, 1959, whereunder all searches were to be made in accordance with the
provisions of the Code of Criminal Procedure. Though it was not a case arising from
any criminal trial and the question whether or not any evidence obtained through such
a defective search was to be excluded from consideration at the trial was not in issue,
it is said that if non-observance of the safeguards provided in the statutory provisions
relating to search required forthwith return of anything recovered thereunder, it should
also require exclusion of all evidence relating to such recovery from consideration at
the trial. The decision of a two-Judge Bench in K.L. Subbayya24 , however, relates to a
criminal trial where it appears to have been ruled that if search is made without
complying with the safeguards provided in the relevant statute relating such searches,
it not only renders “the entire search without jurisdiction”, but “ as a logical corollary,
vitiates the conviction”. It is said that this decision has virtually adopted the
exclusionary rule of evidence, because though 48 bottles of liquor were recovered in
the search of the car of the accused, for which the conviction under Section 34 of the
Mysore Excise Act could be sustained, it was set
Page: J-38
aside by the Supreme Court as in its view the search and the resultant recovery were
to be excluded from consideration. It is unfortunate that none of the earlier decisions
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-
was considered in K.L. Subbayya24 nor the latter was referred to in the later decision in
Natwarlal17 . It may be noted that the relevant provisions of Section 54 of the Mysore
Excise Act, like those of Section 165 of the Code of Criminal Procedure, required the
officer concerned to proceed to search and seize “after recording the grounds of his
belief’'that an offence under the Act was being committed. But in respect of the
analogous provisions of Section 165, Code of Criminal Procedure, both the two-Judge
Bench decision in Rehman25 and the three-Judge Bench decision in Bai Radha19 , where
Rehman25 was approved and followed, the Supreme Court ruled that “the recording of
reasons under Section 165 did not confer on the officer jurisdiction to make search”
and that “jurisdiction or power to make search was conferred by the statute and not
derived from the recording of reasons”. And, as already noted, in the three-Judge
Bench decision in Radhakishan18 , it was declared that the illegality of the search would
not vitiate the seizure and that save that the illegality of the search might justify its
resistance and might require the court to scrutinise the resultant evidence more
carefully, “no further consequence ensues”. That being so, it is said that the decision
in K.L. Subbayya24 to the effect that the search is rendered without jurisdiction
because of the failure of the searching officer to record the reasons of his belief and
that the resultant evidence is to be excluded from consideration, may not be accepted
to have laid down any binding law and we are still to be governed by the rule, as laid
down in the long catena of decisions from Sunder Singh21 in 1955 to Natwarlal17 in
1979, that the illegality of the search would not affect the admissibility of the resultant
evidence, though it might affect its weight. It is said that the law in India appears to
be similar to the English law on the point, as declared by Lord Goddard in the Privy
Council decision in Kuruma v. Reginam26 , that “if the evidence is relevant, it is
admissible and the court is not concerned with how it was obtained”, quoting with
approval the dictum of Justice Crompton in R. v. Leatham27 , to the effect that “it
matters not how you get it; if you steal it even, it would be admissible”. As noted in
Halsbury28 , after referring to Kuruma26 and other decisions, “although it is the duty of
the court to reject evidence which is not relevant or admissible, the fact that relevant
evidence has been obtained improperly does not necessarily render such evidence
inadmissible”.
Before the five-Judge Bench in Alaserry Mohammed29 , which has also been relied on
in Natwarlal17 , there was no question of any evidence having been obtained by illegal
search and seizure and the question was whether sending of a sample of food in
quantity lesser than that prescribed under the rule to the Public Analyst would vitiate
the analysis, rendering the same unavailable
Page: J-39
to the prosecution in a case under the Prevention of Food Adulteration Act, 1954. The
Supreme Court held the relevant rule prescribing the quantity to be directory and that
if the quantity actually supplied was sufficient to enable to Public Analyst to do the
analysis correctly, the relevant rule was to be taken to have been substantially
complied with. But though this was sufficient to dispose of the case, Justice Untwalia,
speaking for the court, thought it useful to note that even in America, the birthplace of
this exclusionary rule of evidence, a deviation has been made in Stone v. Powell30 and
Wolf v. Rice30 , decided in 1976, where it has been pointed out that “application of the
rule thus deflects the truth-finding process and often frees the guilty”. It appears to
have been held in those two American cases that federal courts are under no
constitutional obligation to issue writ of habeas corpus to order release of persons who
urged that their convictions in State courts were obtained on illegally seized evidence,
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so long as the State has provided an opportunity for a full and fair hearing of their
challenge to such evidence. But it is said that the manner in which the observations of
Justice Powell and Chief Justice Burger in those case have been extensively quoted
with obvious approval in Alaserry Mohammed29 , even though no question of illegal
search and seizure was in any way involved therein, is sufficient to give rise to the
impression that the five-Judge Bench intended to clearly demonstrate its disapproval
of the exclusionary rule of evidence not only in cases of illegal search and seizure, but
in other cases of illegal or improper collection of evidence also.
This has given rise to the question as to whether or not rejection of the exclusionary
rule of evidence in its entirety and acceptance of all evidence, howsoever illegally or
improperly obtained, solely on the ground of relevancy under the law, would be in
conflict with the provisions of Article 21, which, as pointed out in Bachan Singh14 and
Mithu13 , must now be read as “no person shall be deprived of his life or personal
liberty except according to fair, just and reasonable procedure established by valid
law”. If the search or any other mode of collection of evidence is illegal or improper,
then whether or not consideration of such evidence in a criminal trial resulting in
deprivation of personal liberty would amount to a procedure which is unjust, unfair or
unreasonable? Can a procedure involving violation of law still amount to a procedure
which is right and just and fair and reasonable? True, Section 465 of the Code of
Criminal Procedure is there providing that no error, omission or irregularity would
vitiate a criminal trial unless in the opinion of the court a failure of justice has in fact
been occasioned thereby and in some of the decisions of the Supreme Court, noted
hereinabove, which related to search and seizure under the Code of 1898, the
analogous Section 537 of the preceding Code of 1898 was relied on. But it is said that
the declaration of the three-Judge Bench of the Supreme Court in Radhakishan18 to
the effect that though the illegality of the search and seizure might justify resistance
Page: J-40
thereto and might require a more careful scrutiny by the court of the resultant
evidence, but that “beyond these two consequences no further consequence ensues”
and the manner in which these observations have been relied on and followed in the
later decisions including Natwarlal17 in 1979, are likely to give rise to the impression
that according to the Supreme Court the illegality of search and seizure is to be
regarded not to have occasioned any failure of justice, as no other consequence, save
the two mentioned hereinabove, would ensue from such illegality. But even that apart,
would a procedure, however illegal and violative of law, have nevertheless to be
regarded as right, just, fair and reasonable, unless failure of justice can in fact be
demonstrated? Apart from illegal search and seizure, evidence may be obtained by
various other illegal or improper means like illegal telephone tapping, eavesdropping,
intercepting of mails and so on. Can it be said that under Article 21, expounded and
expanded as noted above, a person can be convicted and deprived of personal liberty
on any piece of evidence relevant under the law and “the court is not concerned with
how it was obtained”26 and “it matters not how you get it” and “if you steal it even, it
would be admissible”?27 Would all the decisions ruling out exclusionary rule of
evidence require rethinking and reconsideration? Or, would it be better to have
legislative provisions directing or empowering courts to exclude from consideration
illegally or improperly obtained evidence so that the law on the point may be placed
on the terra firma of a statute? The impact of the projection of reasonableness,
righteousness, justness and fairness in the procedure established by law within the
meaning of Article 21 does not appear to have been considered by the Supreme Court
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in respect of this aspect of our law of evidence.
———
* Actg. Chief Justice, High Court of Sikkim, Gangtok.
1. (1983) 1 SCC (Jour) 1-10.
2. (1970) 1 SCC 248.
3. (1978) 1 SCC 248.

4. (1978) 4 SCC 494, 518.
5. (1973) 1 SCC 856.
6. (1970) 1 SCC 240, 245.

7. (1973) 1 SCC 579, 585.
8. (1978) 3 SCC 544, 552.
9. (1978) 1 SCC 271.

10. C.A.D., Vol. VII, pp. 842-857, 999-1001.
11. (1982) 3 SCC 24, 55.
12. (1981) 1 SCC 608.

13. (1983) 2 SCC 278, 284.
14. (1980) 2 SCC 684, 730.
15.
(1914) 232 US 383.
16. (1961) 367 US 643.
17. (1980) 4 SCC 669, 673.
18.
AIR 1963 SC 822, 824.
19.
AIR 1970 SC 1396, 1397, 1398.
20.
(1972) 1 SCC 764.
21. AIR 1956 SC 411.

22. AIR 1962 SC 63.
23. AIR 1968 SC 59, 67.
24. (1979) 2 SCC 115, 116, 117.
25. AIR 1960 SC 210, 213.
26. (1955) 1 All ER 236, 239.
27.
(1861) 8 Cox CC 488.
28. Laws of England, 3rd Edn., Vol., 15, p. 266.
29. (1978) 2 SCC 386, 395.
30.
(1976) 428 US 465.
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© Eastern Book Company.
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(2011) PL May S-38
Fruits of the Poisoned Tree: Should illegally obtained evidence be admissible?
FRUITS OF THE POISONED TREE: SHOULD ILLEGALLY OBTAINED EVIDENCE BE

ADMISSIBLE?
by
Talha Abdul Rahman*
While there is a virtue in the justice being blind, this definitely should not extend to
admitting evidence that have been gathered by mechanisms deployed in egregious
breaches of the law and human rights. In this article, I have argued basing on certain
principled justifications that there is a need also in India to revisit the proposition that
allows admissibility of illegally obtained evidence, and thereby attempt to enhance
fairness of the trial, civil or criminal, by exclusion of illegally obtained evidence. While
stay of trial could be considered as an alternative in extreme cases, it has only been
incidentally discussed in this article where focus is on exclusion of illegally obtained
evidence. I argue that exclusion of illegally obtained evidence is only proper because
mere reduction in probative value of evidence does not sufficiently vindicate the
violation involved. The phrases “illegally obtained evidence” and “improperly obtained
evidence” have been interchangeably used and refer to those evidence which have
been obtained broadly by employing methods in breach of privacy, personal security,
violence, torture and entrapment.
I will first set out the legal position in India followed by principles on the basis of
which the courts should keep their eyes open and also the circumstances of collection
of evidence. Thereafter, subsequent to discussion on approaches by common law
courts in England, Canada and Australia, I conclude by submitting that Indian courts
must now develop appropriate method for exercise of discretion to exclude illegally
obtained evidence, preferably supported by legislative change.
Judicial approach under the Indian law
Presently, the situation under the Indian law is that under the Evidence Act, 1872
which is a law “consolidating”, defining and amending the law of evidence permits
relevance of a piece of evidence as the only test of admissibility of evidence.1 The
courts have taken the view that there is no law in force that excludes relevant
evidence on the ground that it was obtained under an illegal search or seizure, or was
otherwise illegally obtained.2 The Supreme Court, which is otherwise reputed for its
activist approach, has gone to the extent of holding that:
23. … It will be wrong to invoke the supposed spirit of our Constitution for
excluding such evidence. …
It, therefore, follows that neither by invoking the spirit of our Constitution nor by a
strained construction of any of the fundamental rights can we spell out the
exclusion of evidence obtained on an illegal search.3
It is rather ironic that while Indian courts continue to rely on certain judgments of
the English courts, the English courts themselves have distanced from the
jurisprudence of those judgments.
Therefore, as would follow from the assessment set out in the section below, it is
only appropriate that in the absence of immediate legislative assistance Indian courts
develop mechanisms to avoid indirectly aiding and abetting police and investigative
excesses.
Reasons for exclusion of illegally obtained evidence
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There are at least four accepted principles on the basis of which improperly
obtained evidence must not receive favour from courts.4 The first, reliability principle is
based on the premise that determining the truth of the criminal charges is the sole
purpose of the criminal trial, and evidence should be admitted or excluded solely on
grounds of reliability. It is argued that evidence obtained by improper means including
torture, violence, or under a promise may not be reliable.
The second, disciplinary principle requires that improperly obtained evidence should
generally be excluded, even when its reliability is not in doubt, since the court should
use its position to discourage improper practices in the investigation of crime. It is
argued that if judges routinely exclude improperly obtained evidence, the prosecutorial
system would stop resorting to improper techniques as they would cease to be useful.
The third, and which I believe to be very critical is the protective principle, which is
based on the premise that evidence obtained by infringing individual's right provides a
prima facie justification, for the exclusion of such evidence is one of the methods by
which infringement of the right can be remedied or vindicated. There is some support
to this principle from the judgment of Dragan Nikolic5 by International Criminal
Tribunal for Yugoslavia as well6 .
The fourth principle is the judicial integrity principle, which operates on the basis
that unless the courts refuse to admit improperly obtained evidence, they are
endorsing the improper conduct by which such tainted evidence was procured.
Therefore, to maintain their integrity and respect of administration of justice, the
courts must be cautious of admitting such evidence.7 The thrust of the judicial
integrity principle is not on morality but on public confidence in integrity of the
system. This is because judicial integrity is at risk not only in the guilty escaping the
conviction, but also in the manner in which the conviction is achieved.
Reference to the above discussed principles is important in that not only do they
provide a clear rational for exclusion of improperly obtained evidence, but also tend to
serve as guiding principles with reference to which the discretion of excluding
evidence may be exercised by courts on a case by case basis. Arguably, therefore, it
may be necessary for a legislative change to be supported by appropriate policy
statement.
Judicial approach under the English law
While the jurisprudence of human rights under the European Convention on Human
Rights (ECHR) gradually developed an aversion towards police and prosecutorial
excesses8 resulting in suitable legislative changes and common law responses, the
enactment of the Human Rights Act, 1998 crystallised a discernable aversion of
English courts to admit illegally and improperly obtained evidence that requires courts
to ensure compliance with ECHR.
In Kuruma, Son of Kaniu v. R.9 , decided in 1955, the Judicial Committee had set
the precedent that the test to be applied in considering whether evidence is
admissible or not, is whether it is relevant to the matters in issue. If it is, it is
admissible and the court is not concerned with how the evidence was obtained. Later,
in R. v. Sang10 , while acknowledging that there had developed a general discretion to
exclude unduly prejudicial material if its prejudicial effect exceeds its probative value,
the Court of Appeal did not lay down a coherent theoretical foundation capable of
cogently guiding the lower courts towards exclusion of evidence in appropriate case.
Because of multiple speeches of the Judges, it became further difficult to ascertain the
scope of the discretionary power identified in R. v. Sang11 .
In R. v. Warwickshall12 it was held that “although confessions improperly obtained
cannot be received in evidence … any acts done afterwards might be given in
evidence, notwithstanding that they were done in consequence of such a confession”.
In this respect, the Criminal Law Revision Committee was of the view that “it would be
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too great an interference with justice to prevent the police from using any ‘leads’
obtained from an inadmissible confession”. Accordingly, while inserting general safety
valves in the Police and Criminal Evidence Act, 1984 (PACE), Section 76(4) of PACE
retains the ratio of R. v. Warwickshall13 . Accordingly, Section 76(4) of PACE provides
while confessions may be wholly or partly excluded in pursuance of Section 76, facts
discovered as a result of such confession or where such confession is relevant as
showing that the accused speaks, writes or expresses himself in a particular way may
still be put to use in a criminal trial.
Given that law does not disregard wholly such improperly obtained evidence,
especially confession, and permits its use for limited purpose, defeats the rationales
for exclusion of such evidence. It defeats the disciplinary principle, as such reliance on
evidence discovered after taking a lead from illegally obtained evidence is admissible,
and does not itself discourage the investigative authorities from insisting on complete
propriety. However, one must not lose sight of the fact that the English courts have
been empowered by Section 78(1) of PACE14 to exclude improperly obtained evidence
in appropriate circumstances. Section 78(1) of PACE provides:
In any proceedings the court may refuse to allow evidence on which the
prosecution proposes to rely to be given if it appears to the court that, having
regard to all the circumstances, including the circumstances in which the evidence
was obtained, the admission of the evidence would have such an adverse effect on
the fairness of the proceedings that the court ought not to admit it.
(emphasis supplied)
Under Section 78(1) while a wide judicial discretion may be considered as a
blessing to deal with myriad situations, it does come embedded with equally vast
sphere of uncertainty. Further, Section 82(3) of PACE which provides, “Nothing in this
part of this Act shall prejudice any power of a court to exclude evidence (whether by
preventing questions from being put or otherwise) at its discretion”, arguably retains
the power of the courts under common law to exclude evidence15 . A judicial decision
identifying a definite relationship between the scope of Section 78 and Section 82(3)
that expressly preserved common law discretion is still awaited16 . Read together, while
both Sections 78 and 82(3) give discretionary power to the courts to exclude
improperly obtained evidence relying on principles of “fairness” and “common law”,
scope of neither is defined.
In R. v. Christou17 the Court of Appeal observed the concept of fairness inheres
equally in common law as it does in Section 78. Further, and a stronger remedy, as
noted in R. v. Latif18 , is the discretion of the court to stay criminal proceedings19 ,
which is different from discretion under Section 78 [and arguably flows from Section
82(3) of PACE], but overlaps with Section 78.
Despite the enactment of Section 78 of PACE, there remains no identified basis,
principle, or rationale on the basis of which such discretion can be exercised. This is
arguably because Section 78 of PACE is not supported by a firm policy statement. As
stated above, in appropriate cases, one can expect courts to even stay the trial20 .
Judicial approach under the Canadian law
Article 24(2) of the Canadian Charter of Rights and Freedom21 has a clearly
identified rationale to exclude that evidence collected in violation of rights or freedom
under the Charter, i.e. admission of evidence which would bring administration of
justice into disrepute in the eyes of the reasonable man, dispassionate and fully
apprised of the circumstances of the case. This was relied upon and applied in R. v.
Collins22 and in R. v. Stillman23 with the Supreme Court of Canada propounding some
refinement. Recently, in R. v. Grant24 , the Canadian Supreme Court has further refined
the legal position setting out the factors relevant for applying the criteria under Article
24(2) of the Charter of Rights and Freedoms. It held that to apply Article 24(2) to a
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specific case, it is necessary to consider (a) severity of the conduct complained and its
assessment as to whether it would bring administration of justice into disrepute; (b)
the societal interest in protecting constitutional rights and therefore judging the extent
of interference with the individual's right; and (c) the societal interest in the
adjudication of the case on the merits. Clearly, the test as applicable in Canada would
require the courts to apply the test of proportionality and perform a balancing exercise
which has its own difficulties25 .
Judicial approach under the Australian law
It appears from R. v. Swaffield26 that the admissibility of evidence at common law
in Australia is subject to exercise of discretion by the court on three counts: (a)
voluntariness of the accused; (b) reliability of evidence; and (c) overall consideration
taking into account all the circumstances of the case to determine whether the
admission of the evidence or the obtaining of a conviction on the basis of the evidence
is bought at a price which is unacceptable, having regard to contemporary community
standards.
Earlier, the High Court of Australia, in Bunning v. Cross27 , admitted evidence
collected after impropriety on the ground that the unlawful conduct of the patrolman
had resulted from a mistake, not from deliberate or reckless disregard of the law.
Further, the nature of the illegality had not affected the cogency of the evidence,
cogency being a factor in determining the admissibility of evidence obtained illegally
where the illegality arises only from mistake. The Court further identified that broader
questions of high public policy and fairness to the accused was a relevant factor to be
taken into account. Following guidelines were also laid down for the benefit of trial
courts: (a) was the illegality intentional or reckless, rather than negligent; (b) how
cogent is the evidence in question; (c) how easy would it have been for the police to
comply with the law; (d) the more serious the offence, the more tolerant of
unlawfulness the court should be; and (e) where it is legislation which has not been
complied with, is that legislation drafted in a way which demonstrates a desire to
narrowly to restrict the police in the exercise of their power? While each of these cases,
and tests come with their own difficulties but it is apparent that courts do not always
countenance collection of evidence in breach of rights of individuals.
Conclusion
I have argued that it is time that Indian courts should be coherent in adopting an
inclusive rights approach and must attempt to distance themselves from receiving the
evidence that has been collected in violation of individual freedom. While it may not be
effective to automatically exclude such evidence, it is important for Indian courts in
appropriate cases to develop a structure for exercise of their common law discretion to
exclude evidence, something to which the Indian courts seem to have been oblivious.
However, the job of a Judge is a difficult one, and even if assisted by a legislative
change, a Judge would be required to grant “appropriate remedy” in the facts of the
case before it. The above discussed case laws, which by no means are exhaustive,
show the difficulties that the Judge faces in attempting to find a comfortable way to
achieving conviction without overstepping the individual rights and at the same time
keeping the reputation of a fine administrator of justice.
In this respect, it may be efficient to have a statute like the Police and Criminal
Evidence Act, 1984 in India, perhaps in the larger context of police reform, to ensure
that the courts are able to draw from the text and objectives of the reason for exercise
of such discretion to exclude illegally obtained evidence. However, in a country where
accused persons are openly lynched by mobs, one has to be careful of public reaction
to a political reaction to such proposal. At the same time, the necessary balancing act
which would be required to be performed by Judges if not supported by necessary
legislative backing is likely to leave too much scope for incongruous precedents open
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to mischief. On a parting note, a legislative change would prove more effective
because common law Judges are known to exercise their discretion much more
frequently if it emanates from a statutory source.
———
* Associate, AZB & Partners. The views expressed are the author's personal views.
1 The Evidence Act, 1872, Section 5.

2
Shyni Varghese v. State (Govt. of NCT of Delhi), (2008) 147 DLT 691 (Del); M.P. Sharma v. Satish Chandra,
AIR 1954 SC 300 : 1954 Cri LJ 865; State of M.P. v. Ramesh C. Sharma, (2005) 12 SCC 628 : (2006) 1 SCC (Cri)
683; R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471 : 1973 SCC (Cri) 399; State (NCT of Delhi) v.
Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715.
3
Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345, 364, para 23 : 1974 SCC (Tax) 114.
4 See, Peter Duff, “Admissibility of Improperly Obtained Physical Evidence in the Scottish Criminal Trial: The
Search for Principle” (2004) 8 Edin LR 152.
5 IT-94-2-S, 18-12-2003.
6 See, Cedric Ryngaert, “The Doctrine of Abuse of Process: A Comment on the Cambodia Tribunal's Decisions in
the Case against Duch (2007)” (2008) 21 Leiden Journal of International Law 719.
7 Origin of this principle appears to be in the American case of People v. Cahan, 44 Cal 2d 434 (1955) where the
Californian Supreme Court observed that “out of regard for its own dignity as an agency of justice and custodian
of liberty the court should not have a hand in such a “dirty business”. It is morally incongruous for the State to
flout constitutional rights and at the same time demand that its citizens observe the law”. See also, Mapp v.
Ohio, 6 L Ed 2d 1081 : 367 US 643 (1961).
8 It is however settled by the European Court of Human Rights that the admissibility of evidence is primarily a
matter for regulation by national law and as a general rule it is for national courts to asses evidence before
them. ECtHR is only going to examine whether trial as a whole was fair or not.
9 1955 AC 197 : (1955) 2 WLR 223 : (1955) 1 All ER 236 (PC).
10 1980 AC 402 : (1979) 3 WLR 263 : (1979) 2 All ER 1222 (HL).
11
Ibid.
12
(1783) 1 Leach 263.
13
Ibid.
14Judicial discretion provided under Section 78 was introduced as a bargain to Lord Scarman's proposal to have
presumptive exclusion of all improperly obtained evidence unless its inclusion is required in the interest of justice.
15 Note that while there is an implied assertion that courts at common law have the inherent power to exclude
illegally obtained evidence, the courts in India have held otherwise arguably because the Evidence Act, 1872 is a
“consolidating” statute.
16
See also, R. v. Mason (Carl), (1988) 1 WLR 139 : (1987) 3 All ER 481 (CA).
17 1992 QB 979, 988 : (1992) 3 WLR 228 : (1992) 4 All ER 559 (CA).
18 (1996) 1 WLR 104, 112 : (1996) 1 All ER 353 (HL).
19
See, Andrew L-T Choo, “Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited” 1995 Crim LR
864.
20In R. v. Looseley, (2001) 1 WLR 2060 : (2001) 4 All ER 897 (HL), the grant of a stay, rather than the exclusion
of evidence at the trial, should normally be regarded as the appropriate response in a case of entrapment. In this
respect, the court also held that the degree of intrusiveness of investigatory technique, nature of offence,
reasons for police operation, nature and extent of police participation, and the defendant's criminal record are all
relevant factors.
21
The Canadian Charter of Rights and Freedom, Article 24(1):
“Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may
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-
apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and
just in the circumstances.”
Further Article 24(2) provides that:
“Where, in proceedings under sub-section (1), a court concludes that evidence was obtained in a
manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be
excluded if it is established that, having regard to all the circumstances, the admission of it in the
proceedings would bring the administration of justice into disrepute.”
22
(1987) 1 SCR 265 (Can SC).
23 (1997) 1 SCR 607 (Can SC).
24
2009 SCC 32 (Can SC).
25
See, Aharon Barak, “Proportionality and Principled Balancing”, Law & Ethics of Human Rights: (2010) Vol. 4:
Iss. 1, Article 1 <http://www.bepress.com/lehr/vol4/iss1/art1>.
26 (1998) 192 CLR 159 (Aust).
27 (1978) HCA 22.
© EBC Publishing Pvt.Ltd., Lucknow.

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(2017) 10 NUJS L Rev 83
Summaries and Secondary Evidence: Transnational Legislative Borrowing in

Colonial India
SUMMARIES AND SECONDARY EVIDENCE: TRANSNATIONAL LEGISLATIVE BORROWING IN

COLONIAL INDIA
by
Abhinav Chandrachud*
This paper traces the historical origins of §65(g) of the Indian Evidence Act, 1872,
which permits summaries of voluminous documents to be admitted in evidence. Even
though it was the English common law which was ostensibly codified in British India,
no such rule now exists in the U.K. It will be seen that the words contained in §65(g)
were quietly borrowed, without attribution, by the Briton Sir James Fitzjames Stephen,
Law Member of the Viceroy's Council in British India, from a draft civil procedure code
prepared in New York in 1850 by a prominent American lawyer, David Dudley Field.
This paper will discuss the broader implications of the transplant of evidentiary rules
from 19th century America or Britain to India (where the distinction between judge
and jury is, and always has been, very narrow).
I. INTRODUCTION
Under the Indian Evidence Act, 1872 (‘Evidence Act’), documentary evidence must
ordinarily be proved through primary evidence, i.e., by production in court of the
original document itself1 . This is known as the “best evidence”2 rule, i.e., the rule that
the best evidence for proving a document is the document itself. Under certain
circumstances, for instance, if the original is lost or destroyed, the Evidence Act
permits copies of original documents to be tendered as secondary evidence. There is,
however, a peculiar provision in the Evidence Act contained in §65(g), which excuses a
party from producing original documents, where the originals are so unwieldy or
voluminous that they “cannot conveniently be examined in Court”. In such cases,
rather than offering the original documents in evidence, the Evidence Act permits a
party to furnish the “general result” of the collection of documents, in other words a
summary
Page: 84
of the documents, in evidence. Interestingly, there appears to be no rule at the

common law in England today, which compares with this evidentiary rule.
This paper traces the historical origins of §65(g) of the Evidence Act, seeking to
investigate how a provision of this nature made its way to India where there appears
to be no comparable rule now in England, given that it was the common law which
was ostensibly codified in British India. It will be seen that many of the words
contained in §65(g) were quietly borrowed, without attribution, by the Briton Sir
James Fitzjames Stephen, Law Member of the Viceroy's Council in British India, from a
draft civil procedure code prepared in New York in 1850 by a prominent American
lawyer, David Dudley Field. It will be hypothesized that British legislators in colonial
India did not admit their use of the American draft, because doing so might have
weakened the philosophical underpinnings of British colonialism in India. After tracing
the history of §65(g) of the Evidence Act, this paper will discuss the broader
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implications of the transplant of evidentiary rules from 19th century America or Britain
to India (where the distinction between judge and jury is, and always has been, very
narrow). This paper is also partly doctrinal in its orientation. As such, this paper will
examine how §65(g) has been interpreted by courts in India, and the various tests
which have been employed by U.S. courts to determine when summaries can be
admissible as evidence in place of voluminous documents. It will be seen that after its
adoption in India, over the years, the High Courts in India have imposed limits over
the applicability of §65(g). Perhaps most notably, several High Courts now require that
a party seeking to submit a summary of voluminous documents in evidence must
make the underlying documents available for inspection by the other side and, in
some cases, even produce the documents in court.
II. HISTORICAL ORIGINS OF SECTION 65(G)
A. OF TRANSNATIONAL BORROWING
In 1850, a legislative commission in the state of New York, headed by U.S. attorney
David Dudley Field, whose brother, Stephen J. Field, was later a U.S. Supreme Court
justice, completed their draft of a code of civil procedure for the state of New York3 .
Field was educated at Yale, and by the 1860s was
Page: 85
one of the wealthiest lawyers in the U.S.4 , but was not a barrister5 . The draft of Field's
Code of 1850, though not adopted in the state of New York6 , contained a provision,
§1688, which enabled summaries of voluminous documents to be admitted in
evidence. The language contained in §1688, which was subsequently adopted by
several states within the U.S.7 , was as follows:
“There can be no evidence of the contents of a writing, other than the writing
itself, except in the following cases: … 5. When the originals consist of numerous
accounts, or other documents, which cannot be examined in court, without great
loss of time, and the evidence sought from them, is only the general result of the
whole.”8
(emphasis supplied)
At the time, there was no comparable statutory rule in British India. Thus, Act II of
18559 , the precursor to the Evidence Act, contained no comparable provision. The
initial task of drafting an Evidence Bill for British India was entrusted to the Indian
Law Commission, which, under the Chairmanship of Jeremy Bentham's friend10 Sir
John Romilly, presented a draft Evidence Bill to the Crown along with its fifth report on
August 3, 186811 . However, though
Page: 86
John Romilly later told David Dudley Field that his New York Codes were “of great
service to his commission, in the preparation of the Indian codes”12 , the draft prepared
by the Indian Law Commission contained no provision similar to §65(g) either13 . Later
that year, on December 4, 1868, the Law Member of the Viceroy's Council, Sir Henry
Maine, introduced the Law Commission's draft to the Viceroy's Council and set up a
“Select Committee” to prepare a report on the draft Bill.14
Soon, Sir James Fitzjames Stephen took over from Maine as Law Member of the
Viceroy's Council. A product of Eton and Cambridge, and called to the Bar at the Inner
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Temple in London, Stephen had taken Silk prior to coming to British India, and would
eventually become a judge of the High Court in England in 187915 . In fact, soon after
his appointment as Law Member, Stephen was offered the prestigious Chief Justiceship
of the Calcutta High Court, which he declined16 . Stephen was instrumental in drafting
much legislation in British India, most notably the Indian Contract Act, 1872 and the
Evidence Act. Stephen had a very low opinion of the draft prepared by the Indian Law
Commission. As he wrote to his friend, Sir M. Grant Duff, in a letter in March 187017 ,
“Between ourselves [the Indian Law Commissioners'] evidence act appears to me so
very bad”, and Maine had “put off the evil day” of resolving the draft until Stephen got
to India. The Select Committee under Stephen presented its draft Evidence Bill to the
Viceroy's Council on March 31, 187118 . It was this draft which contained, for the first
time, the provision which would become §65(g)19 . Thus, it is clear that §65(g) was
drafted and inserted into the Evidence Act by Sir James Stephen and his colleagues on
the Select Committee, between 1869-1872.
Page: 87
§65(g) reads as follows:

“65. Cases in which secondary evidence relating to documents may be given.
Secondary evidence may be given of the existence, condition or contents of a
document in the following cases:—
…
(g) when the originals consist of numerous accounts or other documents
which cannot conveniently be examined in Court and the fact to be proved is the
general result of the whole collection.
…
In case (g), evidence may be given as to the general result of the documents
by any person who has examined them, and who is skilled in the examination of
such documents.”
(emphasis supplied)
§65(g) of the Evidence Act drafted by Sir James Stephen in the early 1870s was
remarkably similar to §1688 of Field's Code of 1850. True, §65(g) was not identical to
§1688. For example, where Field's Code referred to documents which could not be
examined in court “without great loss of time”, the Evidence Act spoke of documents
which could not “conveniently” be examined in court20 . The Evidence Act also required
the summary to be prepared by a person who has examined the documents and “who
is skilled in the examination of such documents”. Yet, several important words used in
both provisions appeared to be identical. Thus, both provisions were to be invoked
“where the originals consist of numerous accounts or other documents” which
“cannot…be examined in court”, and where the evidence was only for “the general
result of the whole”.
B. STARKIE AND PEAKE ON EVIDENCE
There was no suggestion by either Stephen or the Select Committee that provisions
from the New York Code were being lifted or borrowed. In his speech to the Viceroy's
Legislative Council, made on the same day as the date on which the Select
Committee's report was presented to the Council, while Stephen repeatedly referred to
English text-writers, he made no reference to Field or to the New York Code21 . Neither
Stephen nor the Select Committee attributed the rule contained in §65(g) to §1688 of
Field's Code of 1850. In a book
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Page: 88
Stephen subsequently wrote in England in the 1870s22 , he did not do so much as even
mention Field or the New York Code. Instead, he attributed the rule to two early 19th
century cases, viz. Meyer v. Sefton23 and Roberts v. Doxon24 , which he appeared to
have found in two well-known English treatises on the law of evidence, Starkie25 and
Peake26 on evidence.
In the early 19th century, law reports did not exist in the manner that we know
them today. Authors like Thomas Starkie and Thomas Peake published digests or
compendia of cases. These books did not contain the actual text of judgments, but
only contained the author's note, summary or synopsis of the facts of the case and the
principles stated therein, comparable with the modern-day headnote. Thus, it was the
headnotes of the cases Meyer v. Sefton and Roberts v. Doxon prepared by Starkie and
Peake respectively, which were claimed to have been relied on by Stephen to create
§65(g) of the Evidence Act. Yet, the language contained in Starkie and Peake on
evidence, and in the said cases cited in these treatises, was not so similar to both
§1688 of Field's Code and §65(g) of the Evidence Act, that one could arrive at the
conclusion that Field and Stephen had both obtained the words contained in their
respective drafts from the same source.
Starkie had the following to say about the rule:
“Of the class of facts which require proof by means of indirect evidence, there are
some of so peculiar a nature that juries cannot without other aid come to a direct
conclusion on the subject. In such instances, where the inference requires the
judgment of persons of peculiar skill and knowledge on the particular subject, the
testimony of such as to their opinion and judgment upon the facts, is admissible
evidence to
Page: 89
enable the jury to come to a correct conclusion. Thus the relation between a particular
injury inflicted on a man's body and the death of that man, is an inference to be made
by medical skill and experience, and may be proved by one who possesses those
qualifications. So again, where the question is as to a general result from books or
accounts of a voluminous nature, the general result from them may be proved by the
testimony of one who has examined them.”27
(emphasis supplied)
Starkie also added:
“Although a witness cannot be examined as to the contents of a written
document not produced, yet he may, in some instances, be examined as to the
general result from a great number of documents too voluminous to be read in
court.”28
The case of Roberts v. Doxon, from which the rule contained in §65(g) was
obtained, was decided on August 1, 179129 . In that case, involving the law of
bankruptcy, a witness was called to the stand to depose to the fact that the debts of
the two insolvents were far higher than their credits. The witness “produced no papers,
but said he collected his information from having inspected their accounts”. Lord
Kenyon held that the witness “could not state the particulars of the books without
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producing them, yet that he might speak to the general amount, not by saying that
one page was so much and another so much, but what from his general observation he
perceived to be the general state of their accounts.”
The case of Meyer v. Sefton30 , from which the rule contained in §65(g) was further
sourced, was decided in around 1817. In that case, once again involving bankruptcy,
the Plaintiff called a witness who had examined the books of account of an insolvent
person, though the books of account had not been produced in court. The witness was
asked to ascertain the value of the property of the insolvent. This was objected to by
the defendant. It was held that “from the very nature of the case, such an inquiry
could not be made in court, and therefore evidence on such a point must be given by
some one who had had the means of inquiry, and who could state the result”.31
Page: 90
The two English common law cases cited above and the quotations extracted from
Starkie and Peake clearly suggest that the rule contained in both §1688 of Field's Code
and §65(g) of the Evidence Act had its doctrinal origins in 19th century English
common law. It is not like Field came up with this rule himself — he had clearly found
it in the prevalent English common law. Thus, it cannot be said that in drafting §65(g)
of the Evidence Act, Stephen was borrowing a doctrinal rule of American evidentiary
law with no basis in the English common law.
However, at the same time, it is also quite clear that the precise and exact words
contained in §1688 of Field's Code and §65(g) of Stephen's draft did not come from
Starkie, Peake, or the two cases cited therein. Though Starkie referred to a “general
result from books or accounts of a voluminous nature”, and Lord Kenyon spoke of the
“general state” of accounts, none of these sources used the exact sequence of words
“numerous accounts or other documents” and “general result of the whole”, which
were used in both Field's Code and Stephen's draft. It is therefore quite clear that
while both §1688 of Field's Code and §65(g) of the Evidence Act had a basis in 19th
century English common law, the draftsmanship of §65(g) of the Evidence Act was
heavily influenced by §1688 of Field's Code of 1850, without attribution. It can
certainly not be said that Field's Code, insofar as it related to the law of evidence, was
lifted wholesale into the Indian Evidence Act. However, it does appear that some
provisions, such as §65(g) were borrowed from Field's Code without this source being
cited.
It was probably Field, not Stephen, who first found the rule in Starkie and Peake.
After all, Field claimed that most of his code was drawn from the common law32 . In
fact, many English law treatises, including Starkie and Peake on evidence, were very
popular in the U.S. and had come out in U.S. editions33 . For example, Starkie was
published in a Boston edition in 182634 , and in a Philadelphia edition in 183035 ,
decades before Field's 1850 Code was
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published. In fact, a case decided in the state of Nevada in 1871 made reference to
the voluminous records rule by citing Starkie on the law of evidence.36
C. SOME HINTS THAT THERE WAS BORROWING

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It is puzzling why the Britons made no mention of Field's Code in their public
speeches and notes on the Evidence Act. Instead, they claimed to have derived the
rules contained in the Evidence Act from treatises on the English law of evidence
written by well-known English authors like Starkie and Peake. As the Select
Committee wrote in its first report:
“In general, it has been our object to reproduce the English Law of Evidence with
certain modifications, most of which have been suggested by the Commissioners,
though with some this is not the case. The English Law of Evidence appears to us to
be totally destitute of arrangement….we have discarded altogether the phraseology
in which the English text-writers usually express themselves, and have attempted
first to ascertain, and then to arrange in their natural order, the principles which
underlie the numerous cases and fragmentary rules which they have collected
together.”
(emphasis supplied)
Stephen was clearly responsible for drafting the Evidence Act. Yet, he did not
acknowledge using sources like Field's 1850 Code. As he said to the Law Amendment
Society in England in 1872-73:
“The Evidence Act, for which in its present shape I am in a great measure
responsible, is founded on a draft prepared by the Indian Law Commissioners. It
includes, I think, everything which was contained in that draft, but is considerably
longer, and is arranged on a different principle.”37
However, there are several hints which might suggest that §65(g) was partly
borrowed from §1688 of Field's Code. Stephen was not merely aware of but had also
read Field's New York Code. In the same address to the Law Amendment Society,
Stephen proposed that even the law on eleven subjects in England could be codified.
He added that several of these subjects had been treated in the “New York Civil
Code”38 . Field was a figure known in legal circles in England. He visited London in
1852, where, at a dinner held in his honour at the Law Amendment Society, one Briton
delivered a speech saying that Field
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had “not only essentially served one of the greatest States of America, but…he had
also provided a cheap and satisfactory code of law for every colony that bore the
English name.”39 Field visited London again in 1867, where he met several English
reformers40 . In 1872, the “Legal Gossip” section of the Law Magazine and Review,
published in London, referred to “the American system, where a man like D.D. Field,
who is reported to be making 40,000l. a year, appears as a counsel before a judge
making 400l.”41
The following words in the first report of the Select Committee, dated March 31,
1871, provide a hint that the New York Code was being looked at by the Select
Committee in preparing the Evidence Act for British India:
“We have not followed the precedent of the New York Code in laying down a long
list of presumptions, agreeing with the Indian Law Commissioners in the opinion
that it is better not to fetter the discretion of the Judges. We have, however,
admitted one or two such presumptions to a place in the Code, as, in the absence of
an express rule, the Judges might feel embarrassed.”42
Interestingly, Stephen was accused, even in his own time, of unoriginality and of
borrowing extensively from English law treatises and from other statutes in British
India43 . It is possible that Stephen's failure to acknowledge the New York Code was in
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keeping with his general failure to acknowledge the other sources from which he had
borrowed, for instance, English treatise writers on the law of evidence. Yet, the sense
one gets is that Stephen and the Select Committee were generous in their general
references to English treatise writers, and were quite proud of the fact that they were
relying on English treatise writers to prepare their draft. On the other hand, the New
York Code barely found any mention in any of their speeches or reports. Thus, though
Stephen made numerous speeches in the Viceroy's Legislative Council about the
proposed Evidence Act, and wrote at least two books on the law of evidence, he
omitted to mention that he might have borrowed some provisions from Field's New
York Code.
It appears that Field's Code subsequently developed a poor reputation among
English jurists. In the first edition of the classic treatise published in 1905 on the
Indian Contract Act, jurist Sir Frederick Pollock had the following
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harsh things to say about the use by colonial legislators of Field's New York Code in
drafting the Indian Contract Act, 1872, which do not, however, appear to have had
currency at the time that the Evidence Act was drafted:
“Another source of unequal workmanship, and sometimes of positive error, is

that the framers of the Indian Codes, and of the Contract Act in particular, were
tempted to borrow a section here and a section there from the draft Civil Code of
New York, an infliction which the sounder lawyers of that State have been happily
successful so far in averting from its citizens. This code is in our opinion, and we
believe in that of most competent lawyers who have examined it, about the worst
piece of codification ever produced. It is constantly defective and inaccurate, both in
apprehending the rules of law which it purports to define and in expressing the
draftsman's more or less satisfactory understanding of them…Whenever this Act is
revised everything taken from Mr. Dudley Field's code should be struck out, and the
sections carefully recast after independent examination of the best authorities.”44
On the other hand, Field was aware of the influence that his codes were having on
the codification movement in British India. In a speech he made before the Judiciary
Committee of the legislature of the state of New York in 1873, he said: “Besides these
results in our own country, I should mention the very sensible influence these Codes
have had upon legislation in India, and upon law reform in England.”45 Interestingly,
in that speech, Field also extensively quoted from a speech made by Stephen in India
in 1872 on codification46 . Yet, it seems that Field was taken by surprise when he
learned of the extent to which his codes had been borrowed by the codes of British
India. Field's
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brother and biographer, Henry M. Field, wrote that when Field traveled to India only a
year later in 1874, merely two years after the Evidence Act was enacted in India, he
was surprised to find his words on the Indian statute books:
“It was not long before the American Codes of Procedure were adopted in
substance in Great Britain and the Colonies. A few years later (in 1874) Mr. Field
went round the world, and found to his surprise his system of practice in use in the
courts in India! He could hardly believe his eyes when he was confronted by the
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rules that he had prescribed, word for word as he had written them in his library in
New York…”47
Interestingly, this passage suggests that when Field discovered the borrowing of his
work in India, he was flattered, not annoyed.
D. THE UNDERLYING PRINCIPLE
§65(g) of the Evidence Act appeared to be based on two competing principles,
firstly, that all relevant evidence must be admitted, and secondly, that courts should
not break down because of relevant, yet burdensome, evidentiary material.
Interestingly, while Starkie's articulation of the rule contained in §65(g) suggests that
it was to be a species of expert evidence, neither §1688 of Field's Code nor §65(g)
treat the rule as involving expert testimony.
The first principle was perhaps best articulated in the Indian Law Commission's fifth
report in 1868, in which an attempt was made to distinguish England, with its lay
juries, from British India, with its professional judges48 . The Commission stated in its
report that in England that there was a worry that lay persons on a jury would get
swayed by low quality evidence. This was not a cause for worry in India, said the Law
Commission, where it was better to allow professional judges to see all the evidence in
a matter, even if only slightly relevant:
“In England the aim has been to avoid presenting to the consideration of the jury
whatever it was thought could not safely be presented to an unprofessional tribunal.
In order to obtain this end, various kinds of evidence, which were deemed little
worthy of credit, were pronounced inadmissible, and a great deal of evidence which,
if duly weighed and dispassionately considered, would tend to the elucidation of
truth, is absolutely excluded. On the other hand, evidence is admitted which is at
least as dangerous as that which is shut out….In
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a country like India, where the task of judicial investigation is attended with peculiar
difficulties, and where it is the duty of the judge in all civil, and in some criminal
cases, to decide without a jury, there is greater danger of miscarriage from the mind
of the Court being uninformed than from its being unduly influenced by the
information laid before it. It seems, therefore, better to afford every facility for the
admission of truth although with some risk that falsehood or error may be mixed with
it, than to narrow, with a view to the exclusion of falsehood, the channels by which
truth is admitted.”49
(emphasis supplied)
The second principle is discernible from the speech made by Sir Henry Maine to the
Viceroy's Council on December 4, 1868, whilst introducing the Law Commission's
Evidence Bill. Maine was worried that admitting far too much evidence would lead to a
break down of courts. He said:
“[S]ome evidence must be excluded. If all evidence were admitted, nay, even if
all relevant evidence were admitted, if everything were let in which tended to throw
light on the matters in issue, the Courts would be overwhelmed. Even in England
they would break down, and it would be quite impossible for the Courts to
discharge their functions in this country with the notorious habit of its Natives of
attempting to help on the proof by accumulating everything which has even the
remotest bearing on it.”50
(emphasis supplied)
Thus, §65(g) was perhaps enacted to help reconcile these two conflicting principles
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by ensuring that professional judges in India would get to see all the relevant
evidence necessary to arrive at a decision, and yet be able to cope with the volume of
evidentiary materials on hand.
E. SUBSEQUENT MODIFICATION
Sir James Stephen served in India as Law Member until April 187251 , after which he
returned to England52 . Upon his return to England, he
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was asked by the Attorney General there, Lord Coleridge, in autumn that year, to
prepare an Evidence Bill for England. Stephen prepared such an Evidence Bill,
modeled on the Evidence Act of British India, and discussed its provisions with
Coleridge in “frequent consultations”53 . Though this Bill was never enacted in England,
Stephen wrote a book in which he set out a draft modeled on his Evidence Bill for
England54 . §67(g) of the draft was nearly identical with §65(g) of the Evidence Act of
British India:
“Secondary evidence may be given of the contents of a document in the

following cases… (g) When the originals consist of numerous documents which
cannot conveniently be examined in court, and the fact to be proved is the general
result of the whole collection: provided that the result is capable of being
ascertained by calculation…. In case (g), evidence may be given as to the general
result of the documents by any person who has examined them, and who is skilled
in the examination of such documents.”
(emphasis supplied)
Thus, in Stephen's subsequent draft, the words “numerous accounts or other
documents” contained in §65(g) of the Evidence Act were replaced with the words
“numerous documents”, and a proviso was added under which a summary could only
be admitted in evidence if it contained quantitative, not qualitative, information.
Further, Stephen's subsequent draft contained a footnote which provided the
clarification that “The books & c., should in such a case be ready to be produced if
required”, i.e., the underlying documents must be ready to be produced in court if
required.55
III. INDIAN HIGH COURT DECISIONS
Since its enactment in 1872, only a handful of cases, mostly decided by the Indian
High Courts, have dealt with §65(g) of the Evidence Act. These cases essentially
appear to impose limits on the scope of the provision. Courts have been particularly
concerned with ensuring that an adequate opportunity is available to the opposite side
for testing the veracity of the summary. Courts have therefore held that where a party
seeks to rely on a summary under §65(g), the underlying documents must be
produced before the Court (even if they are not marked as exhibits), and that
inspection of the documents must
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be given to the other side56 . In Sancheti Food Products v. Registrar of Ships (‘Sancheti
Food Products’)57 , the plaintiff had called three witnesses to compute loss of profits
arising out of the plaintiff's inability to use ships purchased by the plaintiff from the
defendant. The Managing Director of the Plaintiff undertook to keep all the files and
vouchers, on the basis of which the witnesses arrived at their conclusions, in court.
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These documents, though not exhibited, were disclosed and offered for inspection to
the other side. The witnesses' computation of loss of profits on the basis of these
documents was held permissible by a Single Judge of the Calcutta High Court.
Similarly, in Kishan Lal v. Sohanlal58 , the Rajasthan High Court held as follows:
“We are of opinion that S. 65(g) has nothing to do with the admissibility of Exs.
D 2, D 5 and D 6. That clause deals with well-known cases where there are too
many documents, whether it be books of accounts or other documents which are
available to the Court, but which it is inconvenient for the Court to examine. Clause
(g) has nothing to do with documents which are not available to the Court. The very
fact that Cl. (g) provides secondary evidence of the result because the documents
cannot conveniently be examined in Court shows that the documents are there for
the Court to examine if it so likes to do. But where, as in, this case, no attempt was
made to produce the original documents from which the original of Ex. D 2 was
prepared, S. 65(g) cannot, in our opinion, be used for the admission of Ex. D 2.”59
(emphasis supplied)
It has already been seen that after drafting the Evidence Act, Sir James Stephen
also believed it necessary that the underlying documents must be ready to be
produced in court if so required. Further, Sir Henry Maine's speech made in the
Viceroy's Council in 1868 suggests that the Evidence Act was concerned with the
convenience of the court and not of the parties. Thus, a party seeking to rely on a
summary prepared under §65(g) may not be able to argue that it would be unduly
harsh or burdensome for it to produce the documents in court or to offer inspection of
the documents to the other side.
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However, a contrary view appears to have been taken by the Lahore High Court. In
Muhammad Sher v. Court of Wards60 , one of the parties sought to introduce in
evidence an abstract of mutation records. The abstract contained the results of a
quantitative analysis, showing that the total number of alienations through
sales/mortgages made by members of a certain tribe were 354 out of which 84 were
mortgages and 270 were sales. Despite the fact that the mutation records were not
available for production before the court, the Court permitted the abstract as evidence
under §65(g). It was held as follows:
“In our opinion the [summary] produced appropriately comes under clause [(g)]
Section 65 of the Evidence Act which provides that, when the original consists of
numerous accounts or other document which cannot conveniently be examined in
Court), and the fact to be proved is the general result of the whole collection,
secondary evidence may be given by producing an extract. This is what exactly
happened in this case. An examination of the vernacular record shows that the
original files of the mutation records were not sent by the revenue authorities on
the ground that there was a specific rule on the subject which prohibited their
transmission. The Court then directed the Naib Sadr Kanungo to prepare an extract
and produce it before it. In our opinion the [summary] in this case is a very
valuable piece of evidence.”61
Courts have also been particularly keen to ensure that the summary must be
prepared by the person who carried out the investigation, and that such person must
be available for cross-examination by the opposite side. In Krishna Dayal v. Emperor62 ,
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the Allahabad High Court was considering the admissibility of a certificate prepared by
an accounts officer of the department of posts and telegraph based on a search of the
records in the audit office, which stated that an amount of surcharge had not been
received by the department. The accounts officer admitted, during the course of his
evidence, that he had not conducted the search himself, but that it had been
conducted under his supervision. The officer was also unable to name the clerks whom
he had employed to carry out the search. It was held as follows:
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“He, therefore, does not answer the test laid down by Section 65 of the Act in
that he had not examined the documents….The insistence by the Legislature on the
presence in the witness-box of a person who has examined the documents or of
someone “who is skilled in the examination of the documents” is intended to afford
an opportunity to the opposite party to find out the truth by means of the cross-
examination of such a witness.”63
(emphasis supplied)
The Calcutta High Court has held, however, that it is permissible for the summary
under §65(g) to be prepared with the aid of a team of persons. In Sancheti Food
Products64 , the summary had been prepared by the accountants with the aid of a
team. It was held as follows:
“Mallick and Guha Roy themselves did not actually see each and every figure and
each and every relevant entry of the numerous books and voucher files which were
identified by Katela. §65(g) in its terms does not require this. It requires that the
voluminous documents and records be examined by an expert examiner.
Examination of these audited books and vouchers by an expert accountant is not
done in the same manner today as it was done in 1872 or before that time. It is
quite permissible for an expert and a top accountant like Mr. Mallick to engage a
team and make random checks, and thus bring to bear upon those documents the
entirety of his accountancy expertise. When he does that and when he signs a
report it cannot but be said that he has examined the documents and being
satisfied he has put his signature to the report.”
It has been held by the Bombay High Court that the person who has examined the
documents and prepared the summary need not be the author of those documents65 .
Thus, §65(g) of the Evidence Act, in a sense, operates as an exception to the rule
against hearsay. However, it has also been held by the Calcutta High Court that §65
(g) cannot be used to prove the contents of each of the underlying documents, but
only “to prove the general result of the examination of the whole of the record”.66
Incidentally, it may be noticed that there is a disconnect between §63 and 65 of the
Evidence Act, both of which deal with secondary evidence.
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§63 provides a definition for secondary evidence, stating that it “means and includes”
certified copies, other kinds of copies enumerated therein, counterparts of documents,
or oral accounts of documents. However, §63 does not include a summary of
voluminous documents within the definition of secondary evidence. On the other hand,
§65 of the Evidence Act deals with circumstances in which secondary evidence may be
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given as to the existence, condition or contents of a document, and includes the
“general result” or summary of numerous documents within its ambit. A vigorous
debate took place amongst the members of the Law Commission of India within the
pages of its 69th Report67 in 1977 under the Chairmanship of Justice P.B.
Gajendragadkar, as to whether this means that §63 is not exhaustive as to the kinds
of secondary evidence which are admissible, or whether §65(g) cannot be considered
secondary evidence at all. The six members of the Law Commission were equally
divided over the subject.
The historical development of §65(g) discussed in this paper almost sheds no light
on the doctrinal development of the provision. It is interesting, however, that none of
the cases set out above identify Field's Code as a possible source for the provision, or
consequently rely on U.S. law extensively to aid its interpretation.
IV. RULE 1006, U.S. FEDERAL RULES OF EVIDENCE
The Federal Rules of Evidence were adopted in the U.S. in 197568 . Rule 1006
permitted summaries to be admitted in evidence69 . It now reads as follows:
“The proponent may use a summary, chart, or calculation to prove the content of
voluminous writings, recordings, or photographs that cannot be conveniently
examined in court. The proponent must make the originals or duplicates available
for examination or copying, or both, by other parties at
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a reasonable time and place. And the court may order the proponent to produce them
in court.”70
The Advisory Committee, responsible for drafting and enacting the rule, wrote the
following comment in support of the enactment of the rule: “The admission of
summaries of voluminous books, records, or documents offers the only practicable
means of making their contents available to judge and jury.”71
The well-known U.S. treatise on the law of evidence, Wigmore, contains the
following statement on the rule:
“Where a fact could be ascertained only by the inspection of a large number of
documents made up of very numerous detailed statements — as, the net balance
resulting from a year's vouchers of a treasurer or a year's accounts in a bank ledger
— it is obvious that it would often be practically out of the question to apply the
present principle by requiring the production of the entire mass of documents and
entries to be perused by the jury or read aloud to them. The convenience of trials
demands that other evidence be allowed to be offered, in the shape of the
testimony of a competent witness who has perused the entire mass and will state
summarily the net result. Such a practice is well established to be proper.”72
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In United States v. Bray73 , the Sixth Circuit of the United States Court of Appeals
has held that there are five requirements for the admission of a summary. First, the
documents must be sufficiently numerous as to make comprehension difficult and
inconvenient. It is not necessary for the documents to be so voluminous as to be
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literally impossible to examine. Second, the proponent of the summary must make the
underlying documents available to the other side at a reasonable time and place, in
order to enable it to attack the authenticity or accuracy of the summary. What may be
considered to be a “reasonable time” depends on the facts and circumstances of the
case. Thus, in one case, Judge Richard Posner of the Seventh Circuit of the U.S. Court
of Appeals held that providing the underlying documents to the other side thirty days
prior to the trial was sufficient, where the other side was represented by “a huge law
firm that could easily have spot checked the summaries for accuracy immediately
upon receiving them…”74 . It is sufficient if the party seeking to introduce the summary
into evidence provides a list or description of the documents supporting the summary,
and states when and where the document may be reviewed75 . It is not necessary for
the proponent to send copies to the other side76 . Third, the proponent must establish
that the underlying documents are admissible in evidence77 . Thus, if the underlying
document is hearsay and not admissible under an exception to the rule against
hearsay, then the summary is inadmissible. This limitation imposed by U.S. courts on
Rule 1006 of the Federal Rules of Evidence appears to be far more extensive than the
limitations imposed by the Indian High Courts on §65(g) of the Evidence Act. In India,
there is no requirement that the underlying documents must be admissible in
evidence. However, according to the D.C. Circuit, the underlying documents need not
actually be admitted in evidence; they merely need to be admissible78 . Fourth, the
summary must be accurate and not misleading. In other words, the summary should
not be embellished or annotated with conclusions or inferences. Fifth, the summary
must be introduced by the person who prepared it.
In short, the doctrinal development of Rule 1006 of the Federal Rules of Evidence in
the U.S. has been largely similar to that of §65(g) of the Evidence Act in India.
However, U.S. courts have imposed the additional limitation that the underlying
documents must be admissible in evidence, which is
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not a requirement in India. Further, Rule 1006 appears to have been used far more
extensively in the U.S. than §65(g) has been used in India.
V. THE DEMISE OF THE RULE IN ENGLAND

It seems that the rule contained in §65(g) of the Evidence Act gradually
disappeared or was narrowed down at the common law in England. The cases of
Roberts v. Doxon and Meyer v. Sefton, from which the rule was originally derived,
appear to have scarcely been followed since they were decided in 1791 and 1817
respectively. Topham v. McGregor79 , decided in 1844, scaled the rule back. The
question in that case, a testamentary suit, was whether the sister of the deceased
shared a good relationship with the deceased prior to his demise. In order to establish
her case, the sister of the deceased called a witness who testified that the sister had
sent him many letters, over the years, which established her case, but that the letters
were “long since destroyed”. The witness was then asked by the sister's lawyer about
the “general contents of those letters” and “the impression thereby produced on his
mind, with reference to the degree of friendship which subsisted between the testator
and his sister.” An objection was taken by the other side as to the admissibility of this
evidence, and the objection was upheld.
The 1848 edition of a treatise on evidence law written by John Pitt Taylor80 in
England described the rule contained in §65(g) as follows: “A sixth relaxation of the
rule demanding primary proof has been admitted, where the evidence required is the
result of voluminous facts, or of the inspection of many books and papers, the
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examination of which could not conveniently take place in court.” In support of this
statement, Taylor cited the well-known treatise, Phipson on Evidence. Interestingly, in
his own time, Stephen was accused of having borrowed heavily from Taylor on
evidence81 . It is therefore quite plausible that the words “cannot conveniently be
examined in court” which are found in §65(g), instead of the words “cannot be
examined in court, without great loss of time” in §1688 of Field's 1850 Code, were
inspired from this formulation in Taylor's treatise on the law of evidence. The 1891
edition of Taylor's treatise also contained the same formulation82 . However, several
decades later, in the 1931 edition83 of the same treatise by Taylor on evidence law, the
aforesaid rule had disappeared. Only a much narrower and whittled down version of
the rule survived, as follows: “the contents of writings may be proved by secondary
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evidence, when their production is either physically or legally impossible, or highly

inconvenient. Thus, inscriptions on walls and fixed tables, mural monuments,
gravestones, surveyors' marks on boundary trees, notices warning trespassers affixed
on boards, and the like, may be proved by secondary evidence, since they cannot
conveniently, if at all, be produced in court.”
At the common law in England today, the rule contained in §65(g) seems to now
exist in in this narrow form84 . According to Phipson on Evidence, originals need not be
produced when “production of the original is physically impossible or highly
inconvenient, e.g. inscriptions on walls, tombstones, etc.”85 Likewise, another author of
English evidence law opines that secondary evidence of a document is admissible
“where the production is either physically impossible, for example because it is an
inscription upon a tombstone or wall or legally impossible, for example because the
document in question is a notice which is required by statute to be constantly affixed
at a factory or workshop.”86 Under the Evidence Act, this rule is contained in §65(d)
and not §65(g). §65(d) permits secondary evidence “when the original is of such a
nature as not to be easily movable”.
Secondary evidence of documents in England is, in some cases, permitted where
the production of primary evidence is inconvenient. For example, under the Bankers'
Books Evidence Act, 187987 , a copy of an entry in a bankers' book can be received as
prima facie evidence of the entry, under certain circumstances. According to one
author, this rule exists because of “the inconvenience which would have been
occasioned by the necessity of producing the originals”88 . A similar statute exists on
the statute books in India, viz., the Bankers' Books Evidence Act, 1891. However, this
exception to the best evidence rule does not permit summaries to be tendered in
evidence, and is therefore not comparable with §65(g) of the Evidence Act.
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VI. CONCLUSION
The findings presented in this paper are interesting for several reasons. While
Field's Code is considered, by some sources, to have been the inspiration for the Anglo
-Indian Codes generally89 , very few scholars have been able to pinpoint the connection
between Field's Code and the Evidence Act. In his impressive paper on the origins of
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the Indian Evidence Act, J.D. Heydon, justice of the High Court of Australia (as he
then was), believed that there might have been four potential sources of material for
the Evidence Act: English law, Indian legislation, the Indian Law Commission Bill, and
Hindu/Muslim law90 . However, Heydon missed out a fifth source- Field's 1850 New
York Code. No popular treatise on the law of evidence in India has, as yet, identified
that §65(g) owes its origins to Field's 1850 Code for the state of New York91 . In fact, a
prominent author on the law of evidence in India opines that “The [Evidence Act] is
based entirely on the English law of Evidence and the industry and care with which the
great mass of principles and rules of English law have been codified, and that too
within a very narrow compass, must need to excite the admiration and wonder of
all….”92 Even Stephen's own brother, Leslie Stephen, thought that in drafting the
Indian Evidence Act, Stephen had done no more than “(boil) down the English law”
and “(strain) off all the mere technical verbiage” of English treatise writers, “to extract
a few common-sense principles and to give their applications to practice in logical
subordination and coherence”93 . In a case decided in 1960, the Supreme Court of
India believed that Stephen did nothing more than consolidate the English law of
evidence.94
Why is it that British legislators in colonial India relied on Field's Code, but made no
mention of it in their public speeches and notes on the Evidence Act? True, Stephen
did not engage in utter word-for-word plagiarism while drafting §65(g) of the Evidence
Act — he modified §1688 of Field's 1850 Code. Yet, a substantial portion of it was
borrowed from §1688. One can venture a few guesses why this happened, though
these are certainly not supported by any evidence. Perhaps Britons like Stephen felt it
an odd irony that the law that Britain was proudly bringing to its colony in India was
drafted in a country which had violently overthrown British colonialism itself. Or
perhaps Stephen
Page: 106
felt odd admitting that he had borrowed from a draft prepared by an attorney who did
not belong to his posh, Cambridge-Etonian-Silk background. It is possible that
Stephen's failure to acknowledge the New York Code was part of Stephen's general
failure to give credit to all the sources he had relied on, including English treatise
writers, though one does get the sense that Stephen and the Select Committee were
far prouder of the fact that they were referring to English treatise writers in the
codification exercise- by contrast, the New York Codes hardly found any mention in
their speeches or reports.
However, the fact that principles of evidence law were imported from the U.S. or
from 19th century English common law to India is important for other reasons. The
division between judge and jury was a very distinct one in 19th century England, as it
continues to be in the U.S. It would be safe to presume that several rules of evidence
of the common law at that time were designed towards ensuring that lay jurors did not
get carried away with what litigants placed before them in the guise of evidence.
However, such concerns ought not to have been applicable in a place like British India
where the judge was (and continues, in independent India, to be) both a trier of fact
and an expositor of law. The scope of jury trials was limited in colonial India95 , and
with some rare exceptions, juries have been abolished in independent India. It has
been seen that the Law Commission in British India was particularly aware of the
substantial absence of the institution of the jury as trier of fact in British India.
Therefore, the fact that an American code of evidentiary rules based on the prevalent
English common law was used as a source for drafting the Evidence Act of British
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India is particularly interesting. After all, much of the Evidence Act in India deals with
questions of what evidence may be considered “relevant”, and with the distinction
between the admissibility and weight of evidence. These questions ought to be of
special concern where there are lay jurors, not trained judges as in India. Judges
would be less likely to get influenced with irrelevant or inadmissible documents
(which, they would have to see anyway, in order to rule on any objections relating to
their admissibility).
However, it cannot be said that §65(g) of the Evidence Act finds no useful place on
the statute books in India today. True, the provision was originally designed, in the
1850 New York Code, to ensure that juries did not get overwhelmed with excessive
evidentiary paperwork. On the other hand, a trained judge, in the habit of routinely
parsing through bulky documents, would be less likely to get overwhelmed with
voluminous documentary evidence. Further, modern pre-trial discovery proceedings
are more extensive in the U.S., and are more often subject to abuse in the U.S.96 , than
they are in India.
Page: 107
Document production requests in the U.S. are likely to yield more substantial and
voluminous documents than they are in India. Though modern discovery proceedings
in the U.S. emanated from the Federal Rules of Civil Procedure of 193897 , and not
Field's 1850 Code, the existence of Rule 1006 of the Federal Rules of Evidence in the
U.S. is particularly justifiable today because of the voluminous nature of documentary
materials which might emerge from pre-trial discovery proceedings. This is not a
concern in India where courts will frown upon fishing and roving inquiries. Even so, in
many modern, complex commercial disputes in India, documents voluntarily produced
by parties could run into tens of thousands of pages, and the utility of §65(g), even for
trained judges, is hard to ignore.
———
* J.S.D. (Stanford), LL.M. (Harvard), LL.B. (Mumbai). Advocate, Bombay High Court. I am grateful to Marc
Galanter, Nick Robinson, James A. Jaffe, Amalia Kessler, Krishnaprasad K.V. and his team, and the participants at
the Third Conference for Junior Researchers (2016) at Stanford Law School. I am indebted to my senior, Mr. D.J.
Khambata, for introducing me to § 65(g) of the Indian Evidence Act, 1872. Many thanks to Rakshanda Deka for
providing some research assistance. I am also grateful to the editorial team of the NUJS Law Review.
1 The Indian Evidence Act, 1872, §64.
2
See Bank of Baroda v. Shree Moti Industries, 2008 SCC OnLine Bom 486 (Daga, J.); SI R JOHN WOODROFFE & SYED
AMIR ALI , LAW OF EVIDENCE 100-103 (Dr. V. Kesava Rao, 18th ed., 2008).
3 See Stephen N. Subrin, David Dudley Field and the Field Code: A Historical Analysis of an Earlier Procedural
Vision, 6 LAW & HIST . REV. 311 (1988). Field's famous procedural code of 1848 was adopted by the legislature of
New York. The 1848 Code, popularly called the “Field Code”, had 400 sections. The 1850 draft had 1800
sections. Kellen Funk, The Influence of the Field Code: An Introduction to the Critical Issues (September 1,
2014), available at http://kellenfunk.org/field-code/the-influence-of-the-field-code-an-introduction/ (Last
visited on December 27, 2015). See also LAWRENCE M. FRIEDMAN, AMERICAN LAW IN THE 20TH CENTURY 253-254, 266-
270 (2002); LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 434-454 (3rd ed., 2005).
4 Andrew P. Morriss, Scott J. Burnham & James C. Nelson, Debating the Field Civil Code 105 Years Late, 61 MONT .
L. REV. 371, 373 (2000). Interestingly, though quite tragically, Field's grandson, a midshipman in the U.S. navy,
died in the harbor of Bombay a few months after Field's death in the U.S. See HENRY M. FIELD, THE LIFE OF DAVID
DUDLEY F IELD 338-339 (1898).
5 The legal profession in England was divided between barristers (the relatively more prestigious and upper-class
segment of the legal profession) and attorneys/solicitors, whereas this distinction did not take hold in the U.S.
See F RIEDMAN, supra note 3, 350-353. The distinction between attorneys and solicitors in England seems to have
disappeared with the blending of the common law and equity courts in the 19th century. See ROBERT ROBSON , THE
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ATTORNEY IN EIGHTEENTH-CENTURY ENGLAND (1959); DANIEL DUMAN, THE ENGLISH AND COLONIAL BARS IN THE NINETEENTH
CENTURY (1983); DANIEL DUMAN, THE JUDICIAL BENCH IN ENGLAND, 1727-1875: THE RESHAPING OF A PROFESSIONAL ELITE
(1982).
6 Subrin, supra note 3, 317; See Morriss, supra note 4.
7 See Benjamin H. Dewey, Evidence: Best Evidence Rule: Use of Summaries of Voluminous Originals, 37 MICHIGAN
LAW REV. 449 (1939).
8 T HE COMMISSIONERS O N PRACTICE AND PLEADINGS, Report on the Code of Civil Procedure of the State of New York
(1850), available at https://archive.org/stream/codecivilproced00fielgoog#page/n5/mode/2up (Last visited on
December 26, 2015).
9 This was “An Act for the further improvement in the Law of Evidence.” There were two provisions in this
statute which dealt with primary and secondary evidence. These were §35 (“An impression of a document (sic)
made by a copying-machine shall be taken without proof to be a correct copy”) and §36 (“When an original
document is out of the reach of the process of the Court, it shall be lawful for the Court, on application to it in
any Civil suit or proceeding, and on notice to the opposite party at a reasonable time before the hearing, to
make an order for the reception of secondary evidence of its execution and contents”). A full text of this Act is
available in H.T. PRINSEP , THE CODE OF CRIMINAL PROCEDURE 374 — 383 (3rd ed., 1869), available at
http://catalog.hathitrust.org/Record/011564820 (Last visited on December 12, 2015).
10Gunther A. Weiss, The Enchantment of Codification in the Common Law World, 25 YALE J. INT'L L. 435, 484
(2000).
11The draft was signed by six members. The report and draft are available at the British Library, India Office
Records, L/PJ/5/434. See SI R GEORGE CLAUS RANKIN, BACKGROUND T O INDIAN LAW 46 (1946).
12 DAVID DUDLEY F IELD, LAW REFORM IN THE UNITED STATES AND ITS INFLUENCE ABROAD 13 (1891).
13§15 dealt with “Proof of the Contents of Documents by Secondary Evidence”. The Commissioners stated in
their report that “We have…laid down rules for the evidence to be required of the proper execution of
documents, and retaining the distinction between primary and secondary evidence, have provided against the
admission of the latter where the former is procurable.” Supra note 8.
14 PROCEEDINGS OF THE LEGISLATIVE COUNCIL , British Library, India Office Records, V/9/9-11 (1868).
15See K.J.M. Smith, Stephen, Sir James Fitzjames, First Baronet (1829—1894) in OXFORD DICTIONARY OF NATIONAL
BIOGRAPHY (2004).
16
LESLIE STEPHEN, T HE LIFE OF SI R JAMES STEPHEN, A JUDGE OF THE HIGH CO U R T OF JUSTICE, BY HIS BROTHER 235 (2nd
Edition, 1895).
17Letter sent by Sir James Stephen & addressed to Sir M. Grant Duff (March 22, 1870), British Library, India
Office Records, Mss EUR F234/13.
18See, PROCEEDINGS OF THE LEGISLATIVE COUNCIL , British Library, India Office Records, V/9/11-12 457 (1868). Both
reports of the Select Committee are fully extracted in HENRY RAYMOND F INK, THE INDIAN EVIDENCE AC T (NO . I OF
1872) (1872), available at http://catalog.hathitrust.org/Record/100343688 (Last visited on December 12, 2015).
19
The Second Report of the Select Committee, presented to the Viceroy's Council on 30 January 1872, dealt
only with a few matters, and § 65(g) was unlikely to have been amended between the two reports.
20However, this might have been inspired by Taylor's treatise on evidence. See, infra “The demise of the rule in
England”.
21 HENRY RAYMOND F INK, THE INDIAN EVIDENCE AC T (NO . I OF 1872), Appendix (1872), available at
22
JAMES F ITZJAMES STEPHEN, A DIGEST OF THE LAW OF EVIDENCE (2nd ed., 1876), available at:
http://catalog.hathitrust.org/Record/008594907 (Last visited on December 12, 2015). In this book, Stephen
provided a footnote to reveal the source of this rule, viz., Roberts v. Doxon, Peake 116; Meyer v. Sefton, 2 Star
276. See also JAMES F ITZJAMES STEPHEN, THE INDIAN EVIDENCE AC T (1 OF 1872) WITH AN INTRODUCTION OF THE
PRINCIPLES OF JUDICIAL EVIDENCE (1872). Apart from Starkie and Peake, Stephen also relied on treatises on the
English law of evidence prepared by Roscoe and Best. See ROSCOE'S DIGEST OF THE LAW OF EVIDENCE O N THE T RIAL
OF ACTIONS AT NISI PRIUS (William Mills and William Markby, 11 ed., 1866); W.M. BEST, THE PRINCIPLES OF THE LAW
OF EVIDENCE WITH ELEMENTARY RULES F O R CONDUCTING THE EXAMINATION AND CROSS -EXAMINATION OF WITNESSES (5th
ed., 1870).
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23 Meyer v. Sefton, 2 Star 276.
24 Roberts v. Doxon, Peake 116. See also Spencer v. Billing, 3 Campb 310; Lott and Pidgeon, Assignees of Smark
v. Melville, (1841) 3 Manning & Granger 40.
25
See T HOMAS STARKIE , ESQ ., A PRACTICAL T REATISE OF THE LAW OF EVIDENCE AND DIGEST OF PROOFS IN CIVIL AND
CRIMINAL PROCEEDINGS , Vol. 1 (3rd ed., 1842), available at http://catalog.hathitrust.org/Record/007703564 (Last
visited on December 12, 2015).
26T HOMAS STARKIE , ESQ ., CASES DETERMINED AT NISI PRIUS (3rd ed., 1820). See also T HOMAS PEAKE, ESQ ., A
COMPENDIUM OF THE LAW OF EVIDENCE (2nd ed., 1804) (hereinafter, “STARKIE ”); THOMAS PEAKE, A COMPENDIUM OF THE
LAW OF EVIDENCE (5th ed., 1822).
27 STARKIE , 69.
28
STARKIE , 175.
29 T HOMAS PEAKE, ESQ ., CASES DETERMINED AT NISI PRIUS 116 (3rd ed., 1820).
30Meyer v. Sefton, 2 Star 276. THOMAS STARKIE , ESQUIRE, REPORTS OF CASES, DETERMINED AT NISI PRIUS , IN THE
COURTS OF KING'S BENCH AND COMMON PLEAS, AND O N THE CIRCUIT , 1816-1819, Vol. II 244-246 (1st ed., 1823).
31
Id.
32 Andrew P. Morriss, Codification and Right Answers, 74 CHICAGO -KENT L. REV. 355, 374 (1999).
33Many 19th century English law treatises were very popular in the U.S. Perhaps the most popular English treatise
on law in the U.S. was Sir William Blackstone's ‘Commentaries’. See LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN
LAW 17, 95, 114, 361 (3rd ed., 2005). Several English treatises on the law of evidence were subsequently
published in U.S. editions, including books written by Sir James Stephen himself [See SI R JAMES F ITZJAMES STEPHEN,
A DIGEST OF THE LAW OF EVIDENCE (George Chase, 2nd ed., 1904); and SI R JAMES F ITZJAMES STEPHEN, A DIGEST OF THE
LAW OF EVIDENCE AS ESTABLISHED IN THE UNITED STATES (William Reynolds, 1879)].
34
T HOMAS STARKIE , ESQ ., A PRACTICAL T REATISE O N THE LAW OF EVIDENCE AND DIGEST OF PROOFS IN CIVIL AND CRIMINAL
PROCEEDINGS , Vol. 1 (1826).
35T HOMAS STARKIE , ESQ ., A PRACTICAL T REATISE O N THE LAW OF EVIDENCE AND DIGEST OF PROOFS IN CIVIL AND CRIMINAL
PROCEEDINGS , Vol. 3 (Metcalfe & Ingraham, 3rd ed., 1830). See also T HOMAS STARKIE ESQ ., A PRACTICAL T REATISE OF
THE LAW OF EVIDENCE (Dowdeswell and Malcolm, 10th ed., 1876), available at:
36 State of Nevada v. Henry A. Rhoades, 6 Nev. 352, 1871 WL 3340 (Nev.).
37
James Fitzjames Stephen, QC, Codification in India and England in THE LAW MAGAZINE AND REVIEW, Vol. 1, 977
(1872).
38 Id., 982.
39 EXTRACTS F R O M NOTICES OF DAVID DUDLEY F IELD, 51 (University of California Reviews, 1894), available at:
https://archive.org/stream/extractsfrom00fielrich#page/48/mode/2up (Last visited on December 30, 2015).
40
Id., 52-53.
41 T HE LAW MAGAZINE AND REVIEW, Vol. 1, 242 (1872).
42 F INK, supra note 21, xix.
43
J.D. Heydon, The Origins of the Indian Evidence Act, 10 OXFORD UNIV. COMMONWEALTH L.J. 22-23 (2015).
44 SI R F REDERICK POLLOCK & DINSHAH F ARDUNJI MULLA , T HE INDIAN CONTRACT AC T : WITH A COMMENTARY , CRITICAL AND
EXPLANATORY iv-v (1st ed., 1905). Pollock and Mulla referred to Field's New York Code as the “evil genius behind
this Act” in reference to the Indian Contract Act, 1872. Id., 136. With reference to § 27 of the Indian Contract
Act, dealing with contracts in restraint of trade, these two scholars opined that “It looks as if the New York
clause had been simply copied without reflection by the draftsman of the Indian legislative department.” Id.,
137.
45 SPEECHES, ARGUMENTS , AND MISCELLANEOUS PAPERS OF DAVID DUDLEY F IELD, Vol. I 366 (A.P. Sprague, 1884). Field
repeated this in a book he wrote in 1891, where he said: “Let us now pause for a moment to review the
influence which the legislation of New York has exerted upon the legislation of other communities. In civil
procedure it has turned and guided the current in twenty-three States and two Territories of the American
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Union; it has done the same in England, Ireland and India and in sixteen English colonies…” DAVID DUDLEY F IELD,
LAW REFORM IN THE UNITED STATES AND ITS INFLUENCE ABROAD 16 (1891). In 1884, Field wrote an essay where said
that the law of partnership had been codified in India “by provisions taken in part from our Civil Code”. See also
SPEECHES, ARGUMENTS , AND MISCELLANEOUS PAPERS OF DAVID DUDLEY F IELD, Vol. II 495 (A.P. Sprague, 1884).
46
SPEECHES, ARGUMENTS , AND MISCELLANEOUS PAPERS OF DAVID DUDLEY F IELD, Vol. I 372-373 (A.P. Sprague, 1884).
47
HENRY M. FIELD, THE LIFE OF DAVID DUDLEY F IELD 96 (1898).
48On juries in British India, see, Kalyani Ramnath, The Colonial Difference Between Law and Fact: Notes on the
Criminal Jury in India, 50 INDIAN EC O N. & SO C . HIST . REV. 341 (2013).
49
Supra note 11.
50 PROCEEDINGS OF THE LEGISLATIVE COUNCIL , British Library, India Office Records, V/9/9-11 (1868).
51 Stephen was quite proud of his creation, the Evidence Act of British India. As he wrote in his book: “In the
years 1870-1871 I drew what afterwards became the Indian Evidence Act (Act 1 of 1872). This Act began by
repealing (with a few exceptions) the whole of the Law of Evidence then in force in India, and proceeded to re-
enact it in the form of a code of 167 sections, which has been in operation in India since Sept. 1872. I am
informed that it is generally understood, and has little judicial commentary or exposition.” STEPHEN, supra note
22.
52
Smith, supra note 15.
53
STEPHEN, supra note 22, iii.
54Stephen's Evidence Bill for England cannot be found. See J.D. Heydon, The Influence of Sir James Stephen on
the law of evidence, T HE NSW BAR NEWS ASSOCIATION 45 (2011), available at
http://www.austlii.edu.au/au/journals/NSWBarAssocNews/2011/12.pdf (Last visited on December 30, 2015).
55
Stephen cited the case of Johnson v. Kershaw, 1 De G & Sm 260, 264, in support of this proposition.
56Order XI Rule 15 of the Code of Civil Procedure, 1908 provides that if a reference is made in a party's pleading
or affidavit to any document, the other side can inspect the document and “take copies” of it. However, the
court is empowered by this provision to excuse a party from doing so, for sufficient reasons. Thus, a court has
the discretion to hold that a party need not furnish copies of its documents to the other side, for sufficient
reasons.
57 Sancheti Food Products Ltd. v. Registrar of Ships, (1995) 100 CWN 760.
58
Kishan Lal v. Sohanlal, 1954 SCC OnLine Raj 47.
59
Kishan Lal v. Sohanlal, 1954 SCC OnLine Raj 47, ¶18.
60Muhammad Sher v. Court of Wards, 1931 SCC OnLine Lah 325. See also Krishna Nandan Prasad Verma v.
State, 1957 SCC OnLine Pat 121, where it was argued that as the originals were lost, §65(g) did not apply.
However, the court in that case did not apply its mind to the question.
61
See further, Phulwanti Kunwar v. Janeshuar Das, 1924 SCC OnLine All 532, 600-602 (per Lal J). However, this
view was not accepted by Lindsay J, at 583-584.
62Krishna Dayal v. Emperor, 1945 SCC OnLine All 104. See also Collector v. Chaturbhuj Panda, 1961 SCC OnLine
MP 113 : 1964 JLJ 288, partly reversed by the Supreme Court in Chaturbhuj Panda v. Collector, AIR 1969 SC 255
though with no material bearing on the § 65(g) point.
63
Krishna Dayal v. Emperor, 1945 SCC OnLine All 104, ¶14.
64
Sancheti Food Products Ltd. v. Registrar of Ships, (1995) 100 CWN 760.
65 Bratindranath Banerjee v. Hiten P. Dalal, 1993 SCC OnLine Bom 170 : (1994) 4 Bom CR 237.
66 Rani Sundar Koer v. Chandreshwar Prosad Narayan Sing, 1907 SCC OnLine Cal 29 : (1907) 11 CWN 501.
67Law Commission of India, Report on the Indian Evidence Act, 1872, Report No. 69, 413-424 (May 1977),
available at http://lawcommissionofindia.nic.in/51-100/Report69.pdf (Last visited on December 14, 2015).
68 LAWRENCE M. FRIEDMAN, AMERICAN LAW IN THE 20TH CENTURY 268 (2002).

69 For a discussion of Rule 1006, see, Becky Thorson, In Summary of Summaries, 57 THE F EDERAL LAWYER 41
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(2010); Richard L. Gabriel, Rule 1006: Admissibility of Summary Evidence, 22 CO L O . LAW . REV. 35 (1993); Emilia
A. Quesada, Summarizing Prior Witness Testimony: Admissible Evidence, Pedagogical Device, or Violation of the
Federal Rules of Evidence?, 24 FLA. ST.U.L. Rev. 161 (1996); Brandon L. Bigelow, Summary and Expert
Witnesses: A Distinction With A Difference, 9 SUFFOLK J. T RIAL & AP P . ADVOC . 1 (2004); James J. Hippard, Sr.,
Article X: Contents of Writings, Recordings, and Photographs, 30 Hous. L. Rev. 1093 (1993).
70 See Federal Rules of Evidence, Rule 1006 (U.S.A.), available at
https://www.law.cornell.edu/rules/fre/rule_1006 (Last visited on December 27, 2015). Prior to 2011, the
provision read as follows: “The contents of voluminous writings, recordings, or photographs which cannot
conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The
originals, or duplicates, shall be made available for examination or copying, or both, by other parties at
reasonable time and place. The court may order that they be produced in court.” See Federal Rules of
Evidence, Public Law 93-595 (January 2, 1975), available at
http://federalevidence.com/pdf/FRE_Amendments/1975_Orig_Enact/1975-Pub.L._93-595_FRE.pdf (Last visited
on December 27, 2015).
71 See Federal Rules of Evidence, Rule 1006 (U.S.A.), available at
https://www.law.cornell.edu/rules/fre/rule_1006 (Last visited on December 27, 2015).
72 JOHN HENRY WIGMORE, EVIDENCE IN T RIALS AT COMMON LAW , Vol. 4 535 (James H. Chadbourn, 1972). The
commentary in RATANLAL RANCHHODDAS AND DHIRAJLAL KESHAVLAL T HAKORE , RATANLAL & DHIRAJLAL 'S THE LAW OF
EVIDENCE (24th ed., 2016), quotes from the 7th Edition of Stephen's Digest on the law of evidence. I have not
been able to find a copy of the 7th Edition of Sir James Stephen's Digest on the law of evidence, though earlier
editions of Stephen's Digest on the law of evidence have been cited or referred to herein. However, it is
noteworthy that the quotation extracted in Ratanlal and Dhirajlal from Stephen's book appears to be strikingly
similar to the passage from Wigmore extracted above. It reads as follows: “In the case of voluminous
documents, accounts, records, etc., it is obvious that it would often be practically out of question to apply the
present principle by requiring the production of the entire mass of documents and entries to be perused by the
jury or read aloud to them. The convenience of trials demands that other evidence be allowed to be offered, in
the shape of the testimony of a competent witness who has perused the entire mass and will state summarily
the net result. Upon the same principle, summaries of official or corporate records might be presented; and
testimony, by one who has examined records, that no record of a specific tenor is there contained, is
receivable instead of producing the entire mass for perusal in the court-room.” It is possible that Stephen (or
the editor of the 7th Edition of the book) was quoting from or citing Wigmore in support of this statement.
73United States v. Bray, 139 F 3d 1104 (6th Cir 1998). See also White Industries v. Cessna Aircraft Co., 611 F
Supp 1049, 1070 (1985).
74Fidelity National Title Insurance Co. of New York v. Intercounty National Title Insurance Co., 412 F 3d 745,
753 (7th Cir 2005).
75
Air Safety, Inc. v. Roman Catholic Archbishop of Boston, 94 F 3d 1, 8 (1st Cir 1996).
76
United States v. Jamieson, 427 F 3d 394, 409-410 (6th Cir 2005).
77 See also United States v. Johnson, 594 F 2d 1253 (9th Cir 1979).
78 United States v. Hemphill, 514 F 3d 1350 (DC Cir 2008).
79 Topham v. McGregor, (1844) 1 Carrington and Kirwan 320.
80 A T REATISE O N THE LAW OF E VIDENCE, AS ADMINISTERED IN ENGLAND AND IRELAND; WITH ILLUSTRATIONS F R O M THE
AMERICAN AND OTHER F OREIGN LAWS , Vol. 1 415-416 (1848), available at
https://archive.org/details/atreatiseonlawe06taylgoog (Last visited on January 8, 2016).
81
Heydon, supra note 43, 31.
82A T REATISE O N THE LAW OF E VIDENCE, AS ADMINISTERED IN ENGLAND AND IRELAND; WITH ILLUSTRATIONS F R O M THE
AMERICAN AND OTHER F OREIGN LAWS 421-422 (1891).
83 JUDGE PITT T AYLOR , A T REATISE O N THE LAW OF EVIDENCE 303-304 (R.P. Croom-Johnson & G.F.L. Bridgman, 1931).
84The rule contained in § 65(g), however, appears to have found a home elsewhere in the common law world. In
Australia, §50 of the Evidence Act, 1995, permits a party to adduce evidence of the contents of two or more
documents in the form of a summary “if the court is satisfied that it would not otherwise be possible
conveniently to examine the evidence because of the volume or complexity of the documents in question”, but
only if the opposite party is given a reasonable opportunity to examine or copy the underlying documents. The
Evidence Act, 1995, §50 (Australia). In New Zealand, § 133 of the Evidence Act, 2006, permits a party to give
evidence of a “voluminous document or a voluminous compilation of documents by means of a summary or
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chart”, either upon production of the underlying documents in court or upon making them available to the other
side for examination and copying at a reasonable time and place. The Evidence Act, 2006, §133.
85 PHIPSON ON EVIDENCE 1426-1427 (Hodge M. Malek et al, 18th ed., 2013).
86
ADRIAN KEANE, THE MODERN LAW OF EVIDENCE 182 (3rd ed., 1994).
87 The Bankers' Books Evidence Act, 1879, § 4 (U.K.).
88 COLIN T APPER , CROSS AND T APPER ON EVIDENCE 757-759 (8th ed., 1995).
89See ENCYCLOPEDIA BRITANNICA , David Dudley Field, available at http://www.britannica.com/biography/David-
Dudley-Field (Last visited on December 26, 2015); Weiss, supra note 10.
90 Heydon, supra note 43, 22-23.
91
See RATANLAL RANCHHODDAS AND DHIRAJLAL KESHAVLAL T HAKORE , RATANLAL & DHIRAJLAL 'S THE LAW OF EVIDENCE 419
(21st ed., 2004); RATANLAL RANCHHODDAS AND DHIRAJLAL KESHAVLAL T HAKORE , RATANLAL & DHIRAJLAL 'S THE LAW OF
EVIDENCE 1069 (24th ed., 2016); LAW OF EVIDENCE 1248 (Dr. H.K. Saharay, 14th ed., 2006); SI R JOHN WOODROFFE &
SYED AMIR ALI 'S LAW OF EVIDENCE, Vol. II, 3136-3138 (Dr. V. Kesava Rao, 2012); SUDIPTO SARKAR & V.R. MANOHAR ,
LAW OF EVIDENCE, vol. 1, 1465-1466 (17th ed., 2010).
92 SARKAR , id., 3-4.

93Stephen, supra note 16, 274. Leslie seems only to have been aware about a criticism that Stephen had
borrowed from Taylor on Evidence.
94 State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493 : (1961) 2 SCR 371 ¶93.
95On juries in colonial India, see Kalyani Ramnath, The Colonial Difference between Law and Fact: Notes on the
Criminal Jury in India, 50 INDIAN EC O N. & SOCIAL HIST . REV. 341 (2013).
96See, Michael E. Wolfson, Addressing the Adversarial Dilemma of Civil Discovery, 36 CLEV. ST . L. REV. 17, 25
(1987-88); Charles Yablon, Stupid Lawyer Tricks: An Essay on Discovery Abuse, 96 COLUM . L. REV. 1618 (1996).
97 Wolfson, id., 21.
© W.B National University Of Juridical Sciences.

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II JCLC (2014) 135
Deposition of Child Witness With Special Reference to Venkateshwarlu Case
DEPOSITION OF CHILD WITNESS WITH SPECIAL REFERENCE TO VENKATESHWARLU CASE

by
Anju Sinha*
ABSTRACT
Witnesses and document are the chief sources of evidence. A witness is a person
who gives testimony or evidence before any Court. The ordinary meaning of the word
“witness” is a person who is present at some event and is able to give information
about it. Children are the most vulnerable of all witnesses. Several factors influence
children memory capacity, including the child's age, psychological development and
intellectual ability, the complexity of the event, their familiarity with the event and the
delay between the event and the time at which the event is recalled. There is no
principle of law that it is inconceivable that a child of tender age would not be able to
recapitulate the facts in his memory. A child is always receptive to abnormal events
which take place in his life and would never forget those events for the rest of his life.
In case the child explains the relevant events of the crime without improvements or
embellishments, and the same inspire confidence of the Court, his deposition does not
require any corroboration whatsoever. In spite of having clear guidelines on this point
the in K. Venkateshwarlu v. State of A.P., (2012) 6 SLT 321, the High Courts
judgment holding accused guilty of rape was struck down by the Supreme Court on
the ground that child witnesses were at police station for considerable period before
they were brought to the Court and narration made by them suggest tutoring by
police. This Article attempts to analyse the concept and credibility of child witness on
the basis of law and judicial pronouncements.
I
Introduction
In K. Venkateshwarlu v. State of A.P.1 a two-Judge Division Bench2 judgment has
thrown open an important question of appreciation of evidence related to child witness
as per Indian Law of Evidence. In brief, the facts of the case3 are that a complaint was
filed by prosecution against the accused, who was working as police constable, under
Penal Code, 18604
Page: 136
for committing rape on victim. The trial court acquitted the accused basically on the
ground that victim and her mother did not speak anything about the rape; witnesses
turned hostile and child witness were kept by police in the police station prior to giving
evidence, therefore, their evidence cannot be relied upon, benefit of doubt was given
to accused5 . An appeal was filed by the State of Andhra Pradesh to the High Court. The
High Court came to a conclusion that there was no appreciation of evidence at all by
the trial court. The High Court reappreciated the evidence and recorded a finding that
the prosecution has proved its case beyond reasonable doubt. The High Court set aside
the trial court's order and convicted the accused6 .
Against the order of the High Court an appeal was filed before the Supreme Court.
The Supreme Court was of the opinion that the High Court has to bear in mind that
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presumption of innocence of an accused is strengthened by his acquittal and unless
there are strong and compelling circumstances which rebut that presumption and
conclusively establish the guilt of the accused, the order of acquittal cannot be set
aside. Crime may be heinous, morally repulsive and extremely shocking but moral
considerations cannot be a substitute for legal evidence and the accused cannot be
convicted on moral considerations7 . The Supreme Court analysed the evidence
produced before it and set aside the conviction order of High Court. Before highlighting
the merits and demerits of the Supreme Court judgment, it is imperative to discuss
the legal position of child witness under Indian Evidence Act, 18728 because several
child witnesses have been relied upon in this case.
II
Child Witness: Concept
A witness is said to be competent when there is nothing in law to prevent him from
appearing in Court and giving evidence. Whether a witness is competent, depends on
his capacity to understand the question put to him and the capacity to give rational
answers thereto. Competency to give evidence means that there is no legal bar
against the person concerned to testify in a court9 . Under the Evidence Act10 all
persons are competent to testify unless they are incapable of giving evidence or
understanding the questions put to
Page: 137
them because of tender years, extreme old age, disease or any other cause of same
kind11 . In deciding that whether a child is competent enough to give evidence, the
Court must satisfy itself that the witness understands the questions, and ascertain in
the best way it can, whether from the extent of his intellectual capacity and
understanding he is able to give a rational account of what he has seen, heard or done
on a particular occasion12 .
If a person of tender age can satisfy the abovementioned requirements, his

competency as a witness is established. However, utmost precaution is to be observed
due to the presumption that the children could be easily tutored and therefore can be
made a puppet in the hands of the elders. In this regard the law does not fix any
particular age as to the competency of child witness or the age when they can be
presumed to have attained the requisite degree of intelligence or knowledge. To
determine the question of competency, the Courts, often undertake the test that
whether from the intellectual capacity and understanding the child is able to give a
rational and intelligent account of what he has seen or heard or done on a particular
occasion.
Children are the most vulnerable of all witnesses. Several factors influence children
memory capacity, including the child's age, psychological development and intellectual
ability, the complexity of the event, their familiarity with the event and the delay
between the event and the time at which the event is recalled. The intimidation of
potential child witnesses by interviewers remains a problem, and it is possible that
false suggestions might be implanted in a child's mind13 . In this regard the law does
not fix any particular age as to the competency of child witness or the age when they
can be presumed to have attained the requisite degree of intelligence or knowledge.
Although children evidence has historically been seen as weak, experimental studies
have shown that when children are allowed to recall information “freely,” or when
information is elicited through the use of general questions, even very young children
can give evidence that is as accurate as that given by adults14 .
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While examining the provisions of the Indian Oaths Act, 187315 and the Evidence
Act16 , it was held by the Supreme Court17 that every witness is competent to depose
unless the Court considers that he is prevented from understanding the question put
to him, or from giving rational answers by reason
Page: 138
of tender age, extreme old age, disease whether of body or mind or any other cause of
the same kind. Thus a person is always presumed to be competent to give evidence
unless the Court considers otherwise.
A child as young as 5/6 years can depose evidence if he understands the questions
and answers in a relevant and rational manner. The age is of no consequence, it is the
mental faculties and understanding that matter in such cases. Their evidence,
however, has to be scrutinised and caution has to be exercised as per each individual
case. The Court has to satisfy itself that the evidence of a child is reliable and
untainted. Any sign of tutoring will render the evidence questionable if the Court is
satisfied, it may convict a person without looking for collaboration of the child's
witness. It has been stated many a times that support of a child's evidence should be
a rule of prudence and is very desirable18 .
A child witness is a privileged witness and he may not have to take an oath. A girl
of about ten years of age could give evidence of a murder in which she was an eye
witness as she could understand the questions and answer them frankly even though
she was not able to understand the nature of oath19 . The same principle has been
applied in India too20 . A child who is not administered oath due to his young years and
is not required to give coherent or straight answers as a privileged witness can give
evidence but this evidence should not be relied upon totally and completely21 . Before
the evidence of a child witness is being recorded, the court must by preliminary
examination test his capacity to understand and give rational answers and must form
his opinion as to the competency of the witness. It is desirable that the trial court,
which has a child witness before him, must preserve on the record some questions and
answers given by the witness which would help the Court of Appeal to come to the
conclusion whether the trial courts decision, in regard to the competency of child
witness was right or erroneous22 .
III
Credibility of Child Witness
All witnesses who testify in Court must be competent or able to testify at trial. In
general, a witness is presumed to be competent. This presumption applies to child
witnesses also. It is well known that the attitude of children to reality
Page: 139
and truth differs widely from that of adults and that, while some young children will
make fairly reliable witnesses, it is absurd to expect true testimony from others
though older. The traditional view about child witness is reflected in the United States
Supreme Courts 1895 decision23 where the Court held that the 5-year-old son of a
murder victim was properly qualified as a witness:
“That the boy was not by reason of his youth, as a matter of law, absolutely
disqualified as a witness, is clear. While no one would think of calling as a witness an
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infant only two or three years old, there is no precise age which determines the
question of competency. This depends on the capacity and intelligence of the child, his
appreciation of the difference between truth and falsehood, as well as of his duty to
tell the former. The decision of this question rests primarily with the trial Judge, who
sees the proposed witness, notices his manner, his apparent possession or lack of
intelligence, and may resort to any examination which will tend to disclose his capacity
and intelligence as well as his understanding of the obligation of an oath”24 .
Children as witnesses generate unique concerns within the legal system because of
their vulnerability, immaturity and impressionability. Courts and lawmakers
increasingly have recognised these concerns and have attempted to adjust
substantive, procedural and evidentiary rules to accommodate the special problem of
child witness. So where the accused was convicted for the rape of an eight year old girl
on the basis of statement made by the victim to her mother, on appeal the Sessions
Court held that the evidence was sufficient enough to form the basis of a moral
conviction, but was legally insufficient. When the matter reached to the High Court, it
was held that no doubt the law requires corroboration but here this statement itself is
legally admissible as corroboration. Later, the High Court granted leave to appeal and
therefore the matter reached to Supreme Court, where it made observations with
regard to the question of admissibility of the statement. The Assistant Sessions Judge
certified that the child did not understand the sanctity of an oath. But there was
nothing to show whether the child understood her duty to speak the truth. The
Supreme Court observed that the omission to administer an oath goes only to the
credibility of the witness and not his competency25 . Evidence Act26 makes it very clear
that there is always competency in fact unless the Court considers otherwise. It is
desirable that the Judge or magistrate should always record their opinion as to
whether the child understands his duty to speak the truth and also to state that why
they think that, otherwise the credibility of the witness would be seriously
Page: 140
affected, so much so, that in some cases it may be necessary to reject the evidence
altogether. In the situations where the Judge or the magistrate doesn't make any
express statement as to this effect then inferences has to be collected from the
circumstances of the case. In this case, the Assistant Sessions Judge omitted to
administer the oath to the child as she could not understand its nature, but still
continued to take her evidence, shows his intention to the fact that he was satisfied
that the child understands her duty to speak the truth. On the basis of the above
observations the Supreme Court had affirmed the decision of the High Court27 .
Page: 141
The Supreme Court has held28 , that if it appears from the version of teenaged
children that it is so truthful that can be rightly believed then the arguments like
children were tutored or had given the prosecution version parrot like and so on are
not acceptable. Thus the competency of a child to give evidence is not regulated by
the age but by the degree of understanding he appears to possess and no fixed rule
can be laid down as to the credit that should be assigned to his testimony. The
question depends upon a number of circumstances such as the possibility of tutoring
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the consistency of the evidence, how far it stood the test of cross-examination and
how far it fits in with the rest of evidence.
In the 1990's a trend emerged where the Courts started recording their opinions
that child witnesses had understood their duty of telling the truth to lend credibility to
any evidence collected thereof. The Supreme Court has also commended this practice.
If the Court is satisfied, it may convict a person without looking for collaboration of the
child's witness. It has been Stated many a times that support of a child's evidence
should be a rule of prudence and is very desirable29 . Again the Supreme Court while
dealing with the evidence of a child witness observed that there was always scope to
tutor the child, however, it cannot alone be a ground to come to the conclusion that
the child witness must have been tutored. The Court must determine as to whether
the child has been tutored or not. It can be ascertained by examining the evidence
and from the contents thereof as to whether there are any traces of tutoring30 . Part of
the statement of a child witness, even if tutored, can be relied upon, if the tutored
part can be separated from untutored part, in case such remaining untutored part
inspires confidence. In such an eventuality the untutored part can be believed or at
least taken into consideration for the purpose of corroboration as in the case of a
hostile witness31 .
The Supreme Court has held32 that there is no principle of law that it is
inconceivable that a child of tender age would not be able to recapitulate the facts in
his memory. A child is always receptive to abnormal events which take place in his life
and would never forget those events for the rest of his life. The child may be able to
recapitulate carefully and exactly when asked about the same in the future. In case
the child explains the relevant events of the crime without improvements or
embellishments, and the same inspire confidence of the Court, his deposition does not
require any corroboration whatsoever. The child at a tender age is incapable of having
any malice or ill-will against any person. Therefore, there must be something on record
to satisfy the Court that something had gone wrong between the date of incident and
recording evidence of the child witness due to which the witness wanted to implicate
the accused falsely in a case of a serious nature. The burden of proving incompetence
is on the party opposing the witness. The Court considered five factors when
determining competency of a child witness. Absence of any of them renders the child
incompetent to testify33 . They are:
1. An understanding of the obligation to speak the truth on the witness stand;
2. The mental capacity at the time of the occurrence concerning which he is to
testify, to receive an accurate impression of it;
3. A memory sufficient to retain an independent recollection of the occurrence;
4. The capacity to express in words his memory of the occurrence; and
5. The capacity to understand the questions about it.
The Supreme Court has further examined the law relating to deposition by child
witnesses34 . While examining the law on the aspect, the Court has observed that the
deposition of a child witness may require corroboration, but in case his deposition
inspires the confidence of the Court and there is no embellishment or improvement
therein, the Court may rely upon his evidence. The evidence of a child witness must be
evaluated more carefully with greater circumspection because he is susceptible to
tutoring. Only in case there is evidence on record to show that a child has been
tutored, the Court can reject his statement partly or fully. However, an inference as to
whether the child has been tutored or not, can be drawn from the contents of his
deposition. The Supreme Court while analysing a number of earlier judgments on the
subject reiterated that where deposition of a child witness inspires confidence, the
Court may rely upon his/her evidence
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Page: 142
even without any corroboration. The Supreme Court held that every witness is
competent to depose unless the Court considers that he/she is prevented from
understanding the question put to him or from giving rational answers by reason of
tender age, extreme old age, disease It was held that evidence of a child must be
evaluated more carefully with greater circumspection because a child is susceptible to
be swayed by what others tell him. It was laid down that testimony of a child witness
can be accepted even without any corroboration provided it inspires confidence35 .
Thus where the trial court put a number of questions to the child witnesses to
discern whether they were capable of understanding the questions and the sanctity to
speak the truth. The Court was satisfied that they could understand the questions and
gave rational answers and therefore, it proceeded to examine them. The testimony of
these three child witnesses was held very much reliable and convincing and the Court
did not find any reason to disbelieve the same36 . In another case before scrutinising
the testimony of solitary eyewitness to the incident, who was a child aged about ten
years37 , the Court analysed the legal position concerning the testimony of a child
witness and observed that Evidence Act38 does not prescribe any particular age as a
determinative factor to treat a witness to be a competent one. On the contrary all
persons shall be competent to testify, unless the Court considers that they are
prevented from understanding the questions put to them or from giving rational
answers to these questions, because of tender years, extreme old age, disease
whether of mind, or any other cause of the same kind39 . A child of tender age can be
allowed to testify if he has intellectual capacity to understand questions and give
rational answers thereto.
Now it is well accepted that child is a competent witness but by reason of his tender
age he is the most vulnerable of all witnesses. The increased attention given to child
witness has required the trial court to carefully scrutinise whether the children are
competent to give testimony. There are no rigid rules that address the competency of
child witness to give testimony40 . Competency is determined on a case to case basis
and Courts possess extremely broad discretion in making the determination. If
substantial doubt exists regarding the ability of the child
Page: 143
to perceive, remember, distinguish truth from falsehood, the Court shall conduct
competency examination of the child41 . A child is presumed to be a competent witness
unless the Court finds otherwise and there is no minimum age below which a child is
presumed to be incapable of testifying42 . As with all witnesses the Court must
determine that the child possesses significant cognitive capacity to observe the
occurrence, to remember the subject-matter about which the child is called upon to
testify, to understand the examiners question, to frame intelligent response and to be
conscious of the obligation to tell the truth43 . When a child goes into the witness box
the practice is for the Judge to ask a few preliminary questions of a general nature to
see if the child is capable of understanding questions, give rational answers, and has a
rough idea of difference between truth and falsehood44 .
The evidence of child witness and the credibility therefore would depend upon the
circumstances of each case. The only precaution which the Courts should bear in mind
while assessing the child witness is that the witness must be reliable one and his/her
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demeanour must be like any other competent witness and there is no likelihood of
being tutored45 . “In the Indian Act there is no such provision and the evidence is
made admissible whether corroborated or not. Once there is admissible evidence a
Court can act upon it, corroboration, unless required by statute, goes only to the
weight and value of the evidence. It is a sound rule in practice not to act on the
uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of
prudence and not of law”46 . Thus in the absence of any inherent defect the plea to
reject the testimony of this child witness was denied by the Court47 and the Bombay
High Court while striking down the apprehensions in accepting the witness account of
a child, in a case where the testimony of an eight-year-old has nailed his father who
strangulated his mother, held that the child testimony is, “cogent and consistent”, and
“free from contradictions and omissions”, and can be “safely relied on for awarding the
conviction”48 .
Page: 144
The decision on the question whether the child witness has sufficient intelligence
primarily rests with the Trial Judge who notices his manners, his apparent possession
or lack of intelligence, and the said Judge may resort to any examination which will
tend to disclose his capacity and intelligence as well as his understanding of the
obligation of an oath. The decision of the trial court may, however, be disturbed by the
Higher Court if from what is preserved in the records, it is clear that his conclusion was
erroneous. This precaution is necessary because child witnesses are amenable to
tutoring and often live in a world of make believe. Though it is an established principle
that child witnesses are dangerous witnesses as they are pliable and liable to be
influenced easily, shaken and moulded, but it is also an accepted norm that if after
careful scrutiny of their evidence the Court comes to the conclusion that there is an
impress of truth in it, there is no obstacle in the way of accepting the evidence of a
child witness49 .
Venkateshwarlu case50 should not be treated as a good law on the subject of
credibility of child witness. A careful perusal of this case reveals following basic
reasons as to why it should not be accepted as a good law on the subject:
Firstly, the decision in this case is very disappointing in as much as it relates to
appreciation of child witness. The Supreme Court while dealing with the evidence of a
child witness observed that there is always scope to tutor the child; however, it cannot
alone be a ground to come to the conclusion that the child witness must have been
tutored. The Court must determine as to whether the child has been tutored or not. It
can be ascertained by examining the evidence and from the contents thereof as to
whether there are any traces of tutoring51 . Part of the Statement of a child witness,
even if tutored, can be relied upon, if the tutored part can be separated from
untutored part, in case such remaining untutored part inspires confidence. In such an
eventuality the untutored part can be believed or at least taken into consideration for
the purpose of corroboration as in the case of a hostile witness52 . But in the case in
hand the testimony of child eyewitnesses has been rejected on the ground that
because they were kept in police station before coming to the Court, they were under
pressure of the police and tutored by police53 . Without examining the evidence and
finding out the traces of tutoring/police pressure how the Supreme Court can reject
the testimony of child eyewitnesses? It is unfortunate that the Court even did not try
to evaluate the child testimony on its own from this view point.
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Page: 145
Secondly, the decision proceeds on basic assumption of innocence of guilt and

settled principles of criminal jurisprudence. The Court was of the opinion that it is safe
and prudent to look for corroboration of child testimony but at the same time some
relevant facts noticed by the Court, which could have been used for corroboration,
were not considered by the Court. The Court itself said that “the demeanour of victim,
the tears in her eyes, her walking out of the Court after looking at accused, pricks the
judicial conscience but conviction cannot be based on suspicion, conjectures and
surmises54 ”. If judicial conscience was picked by conduct of victim then why her
conduct55 was not considered as relevant for the purpose of corroborating the child
witnesses?
Thirdly, it was even accepted by the Hon'ble Court that accused is a police
constable so needle of suspicion does point out to the accused because in a small
village where the incident took place witnesses may be scared to depose against
him56 . If such doubt was created in the mind of the Judge then, why the case was not
considered from this view point moreover when the witnesses were turning hostile?
Fourthly, even if the witnesses turned hostile it was very much within the power of
the Court not to discard the evidence of hostile witness because the law on this point
is well settled that the evidence of hostile witness can be used to corroborate other
reliable evidence if such reliable evidence exist on record57 . Evidentiary value of hostile
witness has been even accepted by the Supreme Court when it said that “it is settled
law that evidence of hostile witness also can be relied upon to the extent to which it
supports the prosecution version”58 , in fact the evidence of a hostile witness can be
relied upon by the prosecution as well as by the defence59 . Thus it is settled legal
proposition that the evidence of a prosecution witness cannot be rejected in toto
merely because the prosecution chose to treat him as hostile and cross-examined him.
The evidence of such witnesses cannot be treated as effaced or washed off the record
altogether but the same can be accepted to the extent that their version is found to be
dependable on a careful scrutiny thereof60 .
Page: 146
IV
Conclusion
In view of the above, it can be concluded that the deposition of a child witness may
require corroboration, but in case his deposition inspires the confidence of the Court
and there is no embellishment or improvement therein, the Court may rely upon his
evidence. The evidence of a child witness must be evaluated more carefully with
greater circumspection because he is susceptible to tutoring. Only in case there is
evidence on record to show that a child has been tutored, the Court can reject his
Statement partly or fully. However, an inference as to whether child has been tutored
or not, can be drawn from the contents of his deposition61 .
Huge responsibility has been placed on the shoulders of judiciary and for the
purpose of doing complete justice the power has been given to it to ask any question,
in any form62 . Unfortunately, Venkateshwarlu case63 is an example of non-utilisation of
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this power by the Honble Court. It is not the law that if a witness is a child; his
evidence shall be rejected, even if it is found reliable. The law is that the evidence of
child witness must be evaluated more carefully and with great circumspection because
a child is susceptible to be swayed away by what others tell them and thus a child
witness is an easy prey to tutoring64 . Thus in Venkateshwarlu case65 , instead of
mechanically setting aside the order of the High Court, the Supreme Court should
have analysed the entire evidence on record and if after perusal of entire record it
would have appeared that it is not safe to rely upon uncorroborated testimony of
children, then there was nothing wrong in rejecting the testimony but without even
analysing their testimony, without determining their competency, without looking for
corroboration rather without considering the relevant material on record it was entirely
unjustified to set aside the order of the High Court because when one talk about
innocence of accused in criminal justice system, one should not forget that even victim
has a right to get justice and the duty of the Court is to maintain a balance between
the innocence of accused vis-a-vis rights of victim.
———
* Assistant Professor, Campus Law Centre, University of Delhi, Delhi.
1 K. Venkateshwarlu v. State of A.P., (2012) 6 SLT 321.
2 Aftab Alam and Ranjana P. Desai, JJ.

3 K. Venkateshwarlu v. State of A.P., (2012) 6 SLT 321. page 322.
4 Sections 375/376.
5 K. Venkateshwarlu v. State of A.P., (2012) 6 SLT 321. page 322.

6 K. Venkateshwarlu v. State of A.P., (2012) 6 SLT 321. page 322., Andhra Pradesh High Court sentenced the
accused to undergo rigorous imprisonment for a period of 7 years and also to pay fine of Rs 1000, in default, to
suffer imprisonment for a period of one month.
7 K. Venkateshwarlu v. State of A.P., (2012) 6 SLT 321, p. 323.
8
Indian Evidence Act, 1872 (hereinafter referred as “Evidence Act”).
9 Debrati Dey, “Child”, p. 10 available at www.academia.edu/4528459 (visited on 2-4-2014).
10
Evidence Act, 1872 (hereinafter referred as “Evidence Act”), Section 118.
11 Batuk Lal, The Law of Evidence, 513, 2012.

12 Debrati Dey, “Child”, p. 10 available at www.academia.edu/4528459 (visited on 2-4-2014).
13 Debrati Dey, “Child”, p. 10 available at www.academia.edu/4528459 (visited on 2-4-2014). at 11.
14 Debrati Dey, “Child”, p. 10 available at www.academia.edu/4528459 (visited on 2-4-2014). at 12.
15 Section 5.
16
Indian Evidence Act, 1872 (hereinafter referred as “Evidence Act”), Section 118.
17 Rameshwar v. State of Rajasthan, AIR 1952 SC 54.
18 Chhagan Dame v. State of Gujarat, 1995 SCC (Cri) 182.
19 M. Sugal v. R., (1945) 48 BLR 138.
20 R. v. Sewa Bhogta, (1874) 14 BLR 294, Prakash v. State of M.P., (1992) 4 SCC 225.
22 Batuk Lal, The Law of Evidence, 513, 2012, pp. 514-515.
23 Wheeler v. United States, 40 L Ed 244 : 16 S Ct 93 : 159 US 523 (1895).
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24 Wheeler v. United States, 40 L Ed 244 : 16 S Ct 93 : 159 US 523 (1895).
26 Indian Evidence Act, 1872 (hereinafter referred as “Evidence Act”), 1872.

27
Rameshwar v. State of Rajasthan, AIR 1952 SC 54.
28 Dalip Singh v. State of Punjab, (1979) 4 SCC 332.
29
Debrati Dey, “Child”, p. 10 available at www.academia.edu/4528459 (visited on 2-4-2014), p. 21.
30
Mangoo v. State of M.P., AIR 1995 SC 959.
31 Mangoo v. State of M.P., AIR 1995 SC 959.
32
State of U.P. v. Krishna Master, (2010) 12 SCC 324.
33
State v. Allen, 70 Wn 2d 690, 424 P 2d 1021 (1967).
34 State of M.P. v. Ramesh, (2011) 4 SCC 786.
35
State of M.P. v. Ramesh, (2011) 4 SCC 786.
36
Gianshree v. State (Govt. of Nct of Delhi), 2014 SCC OnLine Del 1406.
37 Jodhpal v. State, 2014 SCC OnLine Del 966.
38
Indian Evidence Act, 1872 (hereinafter referred as “Evidence Act”).
39
Indian Evidence Act, 1872 (hereinafter referred as “Evidence Act”), Secion 118.
40 Blume v. State, 729 P 2d 664 (1990).
41
Blume v. State, 729 P 2d 664 (1990).
42
Walters v. McCormick, 122 F 3d 1172, 1176 (9th Cir 1997).
43 Commonwealth v. Hart, 501 pa. 174, 177, 460 A 2d 745, 747(1983).
44
Vepa P. Sarthi, Law of Evidence, 244, 2002.
45 Dr. Manjula Batra revised Mr. Monir, The Law of Evidence, 410, 2010.
46 Mohamed Sugal Esa Mamasan Rer Alalah v. R., AIR 1946 PC 3.
47
Suryanarayana v. State of Karnataka, (2001) 9 SCC 129.
48Mayura Janwalkar, “Child's Testimony is Enough to Award Conviction: Bombay High Court” available at
www.dnaindia.com (visited on 25-4-2014).
49 Nivrutti Pandurang Kokate v. State of Maharashtra, (2008) 12 SCC 565.
50
K. Venkateshwarlu v. State of A.P., (2012) 6 SLT 321.
51 State v. Allen, 70 Wn 2d 690, 424 P 2d 1021 (1967).
52 Mangoo v. State of M.P., AIR 1995 SC 959.
53
K. Venkateshwarlu v. State of A.P., (2012) 6 SLT 321, p. 324.
54 K. Venkateshwarlu v. State of A.P., (2012) 6 SLT 321 at 324-325.
55 Indian Evidence Act, 1872 (hereinafter referred as “Evidence Act”), Section 8—Conduct of a party is relevant.
56
K. Venkateshwarlu v. State of A.P., (2012) 6 SLT 321, pp. 324-325.
57 Rangi Lal v. State of U.P., 1991 Cri LJ 916.
58 Koli Lakhmanbhai Chanabhai v. State of Gujarat, (1999) 8 SCC 624.
59
Ashok Kumar v. State, 2014 SCC OnLine Del 1144.
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60 Rameshbhai Mohanbhai Koli v. State of Gujarat, (2011) 11 SCC 111.
61 State of M.P. v. Ramesh, (2011) 4 SCC 786.
62
Indian Evidence Act, 1872 (hereinafter referred as “Evidence Act”), Section 165. The Judge may, in order to
discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of
any witness, or the parties, about any fact relevant or irrelevant; and may order the production of any
document or thing; and neither the party nor their agent shall be entitled to make any objection to any such
question or answer, not, without the leave of the Court to cross-examine any witness upon any answer given in
reply to any such question.
63 K. Venkateshwarlu v. State of A.P., (2012) 6 SLT 321.
64 Panchhi v. State of U.P., (1998) 7 SCC 177.
65
K. Venkateshwarlu v. State of A.P., (2012) 6 SLT 321.
© EBC Publishing Pvt.Ltd., Lucknow.

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1958 SCR 1384 : AIR 1958 SC 448
In the Supreme Court of India

(BEFORE N.H. BHAGWATI, J.L. KAPUR AND P.B. GAJENDRAGADKAR, JJ.)
BAI HIRA DEVI AND OTHERS … Appellants;

Versus
OFFICIAL ASSIGNEE OF BOMBAY … Respondent.
Civil Appeal No. 197 of 1956* , decided on February 20, 1958
Advocates who appeared in this case :
M.C. Setalvad, Attorney-General for India (S.N. Andley and J.B. Dadachanji,
Advocates of Rajinder Narain & Co., with him), for the Appellants;
Purshottam Tricumdas, Senior Advocate (I.N. Shroff, Advocate, with him), for the
Respondent.
The Judgment of the Court was delivered by
P.B. GAJENDRAGADKAR, J.— This appeal by special leave arises from the notice of
motion taken out by the respondent official assignee under Section 55 of the
Presidency-Towns Insolvency Act against the appellants for a declaration that a deed
of gift executed by the insolvent Daulatram Hukamchand on 22-5-1950, in favour of
the appellants was void. It appears that some creditors of Daulatram filed a petition in
the High Court of Judicature at Bombay, Insolvency Case No. 74 of 1951, for an order
that the said Daulatram be adjudged insolvent as he had given notice of suspension of
payment of the debts on 2-8-1951. Daulatram was adjudicated insolvent on 21-8-
1951, with the result that the estate of the insolvent vested in the respondent under
Section 17 of the Act. On 26-9-1951, the respondent took out the present notice of
motion. The impugned deed of gift has been executed by the insolvent in favour of his
wife and three sons who are the appellants before us. In reply to the notice of motion
Appellants 1 to 3 filed a joint affidavit setting out the facts and circumstances under
which the said deed of gift had been executed by the insolvent in their favour. In
substance, the appellants' case was that, though the document purported to be a gift,
it was really a transaction supported by valuable consideration and as such it did not
fall within the mischief of Section 55 of the Act. At the hearing of this notice of motion
before Mr Justice Coyajee, when the appellants sought to lead evidence in support of
this plea, the respondent objected and urged that the evidence which the appellants
wanted to lead was inadmissible under Section 92 of the Indian Evidence Act. The
learned Judge, however, overruled the respondent's objection and allowed the
appellants to lead their evidence. In the end the learned Judge did not accept the
appellants' contention and, by his judgment delivered on 28-1-1954, he granted the
declaration claimed by the respondent under Section 55 of the Act.
2. Against this judgment and order the appellants preferred an appeal (No. 30 of
1954) which was heard by Chagla, C.J. and Shah, J. The learned Judges took the view
that Mr Justice Coyajee had erred in law in allowing oral evidence to be led by the
appellants in support of their plea that the transaction evidenced by the deed of gift
was in reality a transfer for consideration. The learned Judges held that the gift in
question had been executed by the donor in favour of the donees out of natural love
and affection and that, under Section 92, it was not open to the appellants to lead
evidence to show that the transaction was supported not by the consideration of
natural love and affection but by another kind of valuable consideration. On this view
of the matter the learned Judges did not think it necessary to consider the oral
evidence actually led by the appellants and decide whether Mr Justice Coyajee was
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right or not in rejecting the said evidence on the merits. That is how the appeal
preferred by the appellants was dismissed on 6-8-1954. On 23-9-1954, the
application made by the appellants for a certificate was rejected by the High Court at
Bombay; but special leave was granted to the appellants by this Court on 3-11-1954,
and that is how the appeal has come before us for final disposal.
3. The principal point which arises in this appeal is whether the appellants were
entitled to lead oral evidence with a view to show the real nature of the impugned
transaction. In deciding this question, it would be necessary to consider the true scope
and effect of Sections 91 and 92 of the Evidence Act.
4. Chapter VI of the Evidence Act which begins with Section 91 deals with the
exclusion of oral by documentary evidence. Section 91 provides that, “when the terms
of a contract, or of a grant, or of any other disposition of property, have been reduced
to the form of a document, and in all cases in which any matter is required by law to
be reduced to the form of a document, no evidence shall be given in proof of the terms
of such contract, grant or other disposition of property, or of such matter, except the
document itself, or secondary evidence of its contents in cases in which secondary
evidence is admissible under the provisions hereinbefore contained”. The normal rule
is that the contents of a document must be proved by primary evidence which is the
document itself in original. Section 91 is based on what is sometimes described as the
“best evidence rule”. The best evidence about the contents of a document is the
document itself and it is the production of the document that is required by Section 91
in proof of its contents. In a sense, the rule enunciated by Section 91 can be said to
be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving
the contents of the document except in cases where secondary evidence is allowed to
be led under the relevant provisions of the Evidence Act.
5. Section 92 excludes the evidence of oral agreements and it applies to cases
where the terms of contracts, grants or other dispositions of property have been
proved by the production of the relevant documents themselves under Section 91; in
other words, it is after the document has been produced to prove its terms under
Section 91 that the provisions of Section 92 come into operation for the purpose of
excluding evidence of any oral agreement or statement, for the purpose of
contradicting, varying, adding to or subtracting from its terms. The application of this
rule is limited to cases as between parties to the instrument or their representatives in
interest. There are six provisos to this Section with which we are not concerned in the
present appeal. It would be noticed that Sections 91 and 92 in effect supplement each
other. Section 91 would be frustrated without the aid of Section 92 and Section 92
would be inoperative without the aid of Section 91. Since Section 92 excludes the
admission of oral evidence for the purpose of contradicting, varying, adding to or
subtracting from the terms of the document properly proved under Section 91, it may
be said that it makes the proof of the document conclusive of its contents. Like Section
91, Section 92 also can be said to be based on the best evidence rule. The two
sections, however, differ in some material particulars. Section 91 applies to all
documents, whether they purport to dispose of rights or not, whereas Section 92
applies to documents which can be described as dispositive. Section 91 applies to
documents which are both bilateral and unilateral, unlike Section 92 the application of
which is confined only to bilateral documents. Section 91 lays down the rule of
universal application and is not confined to the executant or executants of the
documents. Section 92, on the other hand, applies only between the parties to the
instrument or their representatives in interest. There is no doubt that Section 92 does
not apply to strangers who are not bound or affected by the terms of the document.
Persons other than those who are parties to the document are not precluded from
giving extrinsic evidence to contradict, vary, add to or subtract from the terms of the
document. It is only where a question arises about the effect of the document as
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between the parties or their representatives in interest that the rule enunciated by
Section 92 about the exclusion of oral agreement can be invoked. This position is
made absolutely clear by the provisions of Section 99 itself. Section 99 provides that
“persons who are not parties to a document or their representatives in interest, may
give evidence of any facts tending to show a contemporaneous agreement varying the
terms of the document”. Though it is only variation which is specifically mentioned in
Section 99, there can be no doubt that the third party's right to lead evidence which is
recognized by Section 99 would include a right to lead evidence not only to vary the
terms of the document, but to contradict the said terms or to add to or subtract from
them. If that be the true position, before considering the effect of the provisions of
Section 92 in regard to the appellants' right to lead oral evidence, it would be
necessary to examine whether Section 92 applies at all to the present proceedings
between the official assignee who is the respondent and the donees from the insolvent
who are the appellants before us.
6. Does the official assignee represent the insolvent, and can he be described as the
representative-in-interest of the insolvent, when he moves the Insolvency Court under
Section 55 of the Presidency-Towns Insolvency Act? It is true that, under Section 17 of
the Act, on the making of an order of adjudication, the property of the insolvent
wherever situate vests in the official assignee and becomes divisible among his
creditors; but the property in respect of which a declaration is claimed by the official
assignee under Section 55 has already gone out of the estate of the insolvent, and it
cannot be said to vest in the official assignee as a result of the order of adjudication
itself. Besides, when the official assignee makes the petition under Section 55 he does
so obviously and solely for the benefit of the creditors. An insolvent himself has, and
can possibly have, no right to challenge the transfer effected by him. In this respect
the official assignee has a higher title than the insolvent and, when, under Section 55,
he challenges any transfer made by the insolvent, he acts not for the insolvent or on
his behalf, but in the interest of the whole body of the insolvent's creditors. In theory
and on principle, as soon as an order of adjudication is made, all proceedings in regard
to the estate of the insolvent come under the control of the Insolvency Court. It may
be said that the official assignee in whom the estate of the insolvent vests is to guard
not only the interests of the creditors of the insolvent but also “public morality and the
interest which every member of the public has in the observance of commercial
morality”1 . There is no doubt that it is the Insolvency Court alone which has
jurisdiction to annul the insolvent's transactions, whether the case is governed by the
Presidency-Towns Insolvency Act or by the Provincial Insolvency Act; and so the
proceedings taken under Section 55 cannot be deemed to be proceedings taken for
and on behalf of the insolvent at all.
7. The provisions of Section 55 themselves support the same conclusion. Under
Section 55, any transfer of property not being a transfer made before and in
consideration of marriage or made in favour of a purchaser or encumbrancer in good
faith and for valuable consideration shall, if the transferor is adjudged insolvent within
two years of the date of transfer, be void against the official assignee. This section, like
Section 53-A of the Provincial Insolvency Act, makes the impugned transfers voidable
at the instance of the official assignee or the receiver. The transfers in question are not
declared void as between the parties themselves; they are avoided by the official
assignee or the receiver and their avoidance is intended to enure for the benefit of the
whole body of the creditors of the insolvent. The relevant sections of the two
Insolvency Acts in effect require the Insolvency Courts to set aside the impugned
transactions in exercise of the Insolvency Courts' exclusive jurisdiction in that behalf.
The obvious object of these provisions is to bring back to the insolvent's estate,
property which has left the estate by the impugned act of the insolvent himself and
make the said property available for distribution amongst his creditors. It would,
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therefore, be impossible to hold that, when the official assignee makes a petition
under Section 55 of the Act, he is acting as a representative-in-interest of the
insolvent.
8. In this connection it would be relevant to remember that, in cases governed by
the Presidency-Towns Insolvency Act, the practice in Calcutta and Bombay
consistently allows a creditor who has proved his debt to file a petition to set aside the
transfer under Section 55 of the Act if he shows that the official assignee, on being
tendered a reasonable indemnity has unreasonably refused to make an application.
Similarly, under Section 54-A of the Provincial Insolvency Act, a creditor himself can
make the application if the receiver refuses to take any action. Now, if an application is
made by a creditor for setting aside a voluntary transfer effected by the insolvent,
there can be no doubt that the creditor is not the representative-in-interest of the
insolvent and the creditor would obviously not be affected by the provisions of Section
92 of the Indian Evidence Act. It would really be anomalous if Section 92 were to
apply to proceedings instituted by the official assignee under Section 55, though the
said Section cannot and would not apply to similar proceedings instituted by a
creditor. Having regard to the object with which Section 55 has been enacted, the
nature of the proceedings taken under it, and the nature and effect of the final order
which is contemplated under it, it is clear that, like the creditor who may apply, the
official assignee also cannot be said to be the representative-in-interest of the
insolvent in these proceedings. If that be the true position, Section 92 cannot apply to
the present proceedings between the respondent and the appellants; and so there can
be no doubt that the respondent would not be precluded from leading evidence of an
oral agreement for the purpose of contradicting, varying, adding to or subtracting from
the terms of the impugned document.
9. The question raised by Shri Purshottam which still remains to be considered is
whether the appellants who undoubtedly are the representatives in interest of the
insolvent can avoid the application of Section 92. In our opinion, the answer to this
question must be in favour of the appellants. It is urged before us by Shri Purshottam
that the scheme of the relevant provisions of Chapter VI of the Indian Evidence Act is
inconsistent with the appellants' contention that they can lead oral evidence about the
alleged agreement which may tend to change the character of the transaction itself.
Shri Purshottam bases his argument mainly on the provisions of Section 91 read with
Section 99 of the Act. He contends that Section 91 requires the production and proof
of the document itself for the purpose of proving the contents of the document; and
by necessary implication all evidence about any oral agreement which may affect the
terms of the document is excluded by Section 91 itself. We are not impressed by this
argument. As we have already observed, Sections 91 and 92 really supplement each
other. It is because of Section 91 by itself would not have excluded evidence of oral
agreements which may tend to vary the terms of the document that Section 92 has
been enacted; and if Section 92 does not apply in the present case, there is no other
Section in the Evidence Act which can be said to exclude evidence of the agreement
set up by the appellants. What Section 91 prohibits is the admission of oral evidence
to prove the contents of the document. In the present case, the terms of the
document are proved by the production of the document itself. Whether or not the
said terms could be varied by proof of an oral agreement is a matter which is not
covered by Section 91 at all. That is the subject-matter of Section 92; and so, if
Section 92 does not apply, there is no reason to exclude evidence about an oral
agreement solely on the ground that if believed the said evidence may vary the terms
of the transaction. Shri Purshottam also relied upon the provisions of Section 99. His
argument is that it is only persons who are not parties to a document or their
representatives in interest who are allowed by Section 99 to give evidence of facts
tending to show a contemporaneous agreement varying the terms of the document. In
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other words, the effect of Section 99 is not only to allow strangers to lead such
evidence, but to prohibit parties or their representatives-in-interest from leading such
evidence independently of the provisions of Section 92 of the Evidence Act. We do not
read Section 99 as laying down any such prohibition by necessary implication. As a
matter of fact, from the terms of Section 92 itself, it is clear that strangers to the
document are outside the scope of Section 92; but Section 99 has presumably been
enacted to clarify the same position. It would be unreasonable, we think, to hold that
Section 99 was intended not only to clarify the position with regard to the strangers to
the document, but also to lay down a rule of exclusion of oral evidence by implication
in respect of the parties to the document or their representatives in interest. In our
opinion, the true position is that, if the terms of any transfer reduced to writing are in
dispute between a stranger to a document and a party to it or his representative in
interest, the restriction imposed by Section 92 in regard to the exclusion of evidence
of oral agreement is inapplicable; and both the stranger to the document and the
party to the document or his representative in interest are at liberty to lead evidence
of oral agreement notwithstanding the fact that such evidence, if believed, may
contradict, vary, add to or subtract from its terms. The rule of exclusion enunciated by
Section 92 applies to both parties to the document and is based on the doctrine of
mutuality. It would be inequitable and unfair to enforce that rule against a party to a
document or his representative in interest in the case of a dispute between the said
party or his representative in interest on the one hand and the stranger on the other.
In dealing with this point we may incidentally refer to the relevant statement of the
law by Phipson in his treatise on Evidence:
“Where the transaction has been reduced into writing merely by agreement of
the parties”, it is observed, “extrinsic evidence to contradict or vary the writing is
excluded only in proceedings between such parties or their privies, and not in those
between strangers, or a party and a stranger; since strangers cannot be precluded
from proving the truth by the ignorance, carelessness, or fraud of the parties (R. v.
Cheadle, 3 B. & Ad. 833); nor, in proceedings between a party and a stranger, will
the former be estopped, since there would be no mutuality2 .”
The result is that Section 92 is wholly inapplicable to the present proceedings and so
the appellants are entitled to lead evidence in support of the plea raised by them. It
appears that the attention of the learned Judges who heard the appeal in the High
Court at Bombay was not drawn to this aspect of the matter. That is why they
proceeded to deal with the question about the admissibility of oral evidence led by the
appellants on the assumption that Section 92 applied.
10. We must accordingly set aside the decree passed by the court of appeal in the
High Court at Bombay and send the appeal back to that Court for disposal on the
merits in accordance with law. In the circumstances of this case, we think that the fair
order as to costs of this appeal would be that the costs should abide the final result in
the appeal before the High Court at Bombay.
———
*Appeal from the Judgment and Order dated 6th August, 1954, of the Bombay High Court in Appeal No. 30 of
1954, arising out of the Judgment and Order dated 28th January, 1954, of the said High Court in Insolvency No.
74 of 1951.
1 “The Law of Insolvency in India” — By Rt. Hon. Sir D.F. Mulla, Kt. — 2nd Edn., p. 231.”
2 Phipson on Evidence — 9th Edn., p. 602
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1950-2020, © EBC Publishing Pvt. Ltd., Lucknow.
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(1965) 3 SCR 283 : AIR 1965 SC 1812

(BEFORE K.N. WANCHOO, J.R. MUDHOLKAR AND S.M. SIKRI, JJ.)
R.S. MADDANAPPA (DECEASED) AFTER HIM BY HIS LEGAL

REPRESENTATIVES … Appellants;
Versus
CHANDRAMMA & ANOTHER … Respondents.
Civil Appeal No. 730 of 1962* , decided on March 5, 1965
S.K. Venkatarangaiengar and A.G. Ratnaparkhi, Advocates, for the Appellants;
S.T. Desai, Senior Advocate (Naunit Lal, Advocate with him), for Respondent 1;
K.K. Jain, Advocate, for Respondent 2.
J.R. MUDHOLKAR, J.— This is an appeal by Defendants 3 to 8 from a decision of the
High Court of Mysore passing a decree in favour of Respondent 1 who was Defendant 1
in the trial court, for possession of half the property which was the subject-matter of
the suit and also allowing future mesne profits.
2. The relevant facts are briefly these: The plaintiff who is the elder sister of the
first defendant instituted a suit in the Court of the District Judge, Bangalore for a
declaration that she is the owner of half share in the properties described in the
schedule to the plaint and for partition and separate possession of half share and for
mesne profits. According to her the suit property was the absolute property of her
mother Puttananjamma, and upon her death this property devolved on her and the
first defendant as her mother's heirs. Since, according to her, the first defendant did
not want to join her as co-plaintiff in the suit, she was joined as a defendant. It is
common ground that the property was in the possession of the second defendant R.S.
Maddanappa, the father of the plaintiff and the first defendant and Gangavva, the
second wife of Maddanappa and her children Maddanappa died during the pendency of
the appeal before this Court and his legal representatives are the other defendants to
the suit. Briefly stated his defence, which is also the defence of the defendants other
than Defendant 1 is that though the suit properties belonged to Gowramma, the
mother of Puttananjamma, she had settled them orally on the latter as well as on
himself and that after the death of Puttananjamma he has been in possession of those
properties and enjoying them as full owner. He further pleaded that it was the last
wish of Puttananjamma that he should enjoy these properties as absolute owner. The
plaintiff and the first defendant had, according to him, expressly and impliedly
abandoned their right in these properties, that his possession over the properties was
adverse to them and as he was in adverse possession for over the statutory period, the
suit was barred. Finally he contended that he had spent more than Rs 46,000 towards
improvement of the properties which was met partly from the income of his joint
ancestral property and partly from the assets of the third defendant. These
improvements, he alleged, were made by him bona fide in the belief that he had a
right to the suit properties and consequently he was entitled to the benefit of the
provisions of Section 51 of the Transfer of Property Act.
3. The first defendant admitted the claim of the plaintiff and also claimed a decree
against the other defendants in respect of her half share in the suit properties. The
other defendants, however, resisted her claim and in addition to what the second
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defendant has alleged in his written statement contended that she was estopped by
her conduct from claiming any share in the properties.
4. The trial court decreed the claim of the plaintiff but held that the first defendant
was estopped from claiming possession of her half share in the properties left by her
mother. The first defendant preferred an appeal before the High Court challenging the
correctness of the decision of the trial court. The other defendants also filed an appeal
before the High Court challenging the decision of the trial court in favour of the
plaintiff. It would appear that the plaintiff had also preferred some cross-objections.
All the matters were heard together in the High Court, which dismissed the appeal
preferred by Defendants 2 to 8 as well as the cross-objections lodged by the plaintiff
but decreed the appeal preferred by the first defendant and passed a decree in her
favour for possession of her half share in the suit properties, and future mesne profits
against the remaining defendants. Defendants 2 to 8 applied for a certificate from the
High Court under Articles 133(1)(a) and 133(1)(c) in respect of the decree of the High
Court in the two appeals. The High Court granted the certificate to Defendants 2 to 8
insofar as Defendant 1 was concerned but refused certificate insofar as the plaintiff
was concerned. We are, therefore, concerned with a limited question and that is
whether the High Court was right in awarding a decree to the first defendant for
possession of her half share and mesne profits.
5. Mr Venkatarangaiengar, who appears for the appellants accepts the position that
as the certificate was refused to Defendants 2 to 8 insofar as the plaintiff is concerned,
the only points which they are entitled to urge are those which concern the first
defendant alone and no other. The points which the learned counsel formulated are as
follows:
1. It is not open to a court to award future mesne profits to a party who did not
claim them in the suit;
2. No decree can be passed in favour of a defendant who has not asked for
transposition as plaintiff in the suit.
3. That the first defendant was estopped by her conduct from claiming
possession of her alleged half share of the properties.
6. We will consider the question of estoppel first. The conduct of the first defendant
from which the learned counsel wants us to draw the inference of estoppel consists of
her attitude when she was served with a notice by the plaintiff, her general attitude
respecting Bangalore properties as expressed in the letter dated 17th January, 1941,
written by her to her stepmother and the attestation by her and her husband on 3rd
October, 1944, of the will executed on 25th January, 1941 by Maddanappa. In the
notice dated 26th January, 1948, by the plaintiff's lawyer to the first defendant it was
stated that the plaintiff and the first defendant were joint owners of the suit properties
which were in the possession of their father and requested for the cooperation of the
first defendant in order to effect the division of the properties. A copy of this notice
was sent to Maddanappa and he sent a reply to it to the plaintiff's lawyers. The first
defendant, however, sent no reply at all. We find it difficult to construe the conduct of
the first defendant in not replying to the notice and in not cooperating with the
plaintiff in instituting a suit for obtaining possession of the properties as justifying the
inference of estoppel. It does not mean that she impliedly admitted that she had no
interest in the properties, It is true that in Ex. 15, which is a letter sent by her on 17th
January, 1941, to her stepmother she has observed thus:
“I have no desire whatsoever in respect of the properties which are at Bangalore.
Everything belongs to my father. He has the sole authority to do anything…. We
give our consent to anything done by our father. We will not do anything.”
But even these statements cannot assist the appellants because admittedly the father
knew the true legal position. That is to say, the father knew that these properties
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belonged to Puttananjamma and that he had no authority to deal with these
properties. No doubt, in his written statement Maddanappa had set up a case that the
properties belonged to him by virtue of the declaration made by Puttananjamma at the
time of her death, but that case has been negatived by the courts below. The father's
possession must, therefore, be deemed to have been, to his knowledge, on behalf of
the plaintiff and the first defendant. There was thus no possibility of an erroneous
belief about his title being created in the mind of Maddanappa because of what the
first defendant had said in her letter to her stepmother.
7. Insofar as the attestation of the will is concerned, the appellants' position is no
better. This “will” purports to make a disposition of the suit properties along with other
properties by Maddanappa in favour of Defendants 3 to 8. The attestation of the will by
the first defendant and her husband, would no doubt affix them with the knowledge of
what Maddanappa was doing, but it cannot operate as estoppel against them and in
favour of Defendants 3 to 8 or even in favour of Maddanappa. The will could take effect
only upon the death of Maddanappa and, therefore, no interest in the property had at
all accrued to Defendants 3 to 8 even on the date of the suit. So far as Maddanappa is
concerned, he, as already stated, knew the true position and therefore, could not say
that an erroneous belief about his title to the properties was created in his mind by
reason of the conduct of the first defendant and her husband in attesting the
document. Apart from that there is nothing on the record to show that by reason of
the conduct of the first defendant Maddanappa altered his position to his
disadvantage.
8. Mr Venkatarangaiengar, however, says that subsequent to the execution of the
will he had effected further improvements in the properties and for this purpose spent
his own moneys. According to him, he would not have done so in the absence of an
assurance like the one given by the first defendant and her husband to the effect that
they had no objection to the disposition of the suit properties by him in any way he
chose to make it. The short answer to this is that Maddanappa on his own allegations
was not only in possession and enjoyment of these properties ever since the death of
Putananjamma but had made improvements in the properties even before the
execution of the will. In these circumstances, it is clear that the provisions of Section
115 of the Indian Evidence Act, which contain the law of estoppel by representation do
not help him.
9. Mr Venkatarangaiengar, however, wanted us to hold that the law of estoppel by
representation is not confined to the provisions of Section 115 of the Evidence Act,
that apart from the provisions of this section there is what is called “equitable
estoppel” evolved by the English Judges and that the present case would come within
such “equitable estoppel”. In some decisions of the High Courts reference has been
made to “equitable estoppel” but we doubt whether the court while determining
whether the conduct of a particular party amounts to an estoppel, could travel beyond
the provisions of Section 115 of the Evidence Act. As was pointed out by Garth, C.J. in
Ganges Manufacturing Co. v. Saurjmull1 the provisions of Section 115 of the Evidence
Act are in one sense a rule of evidence and are founded upon the well known doctrine
laid down in Pickard v. Sears2 in which the rule was stated thus:
“Where one by his word of conduct wilfully causes another to believe for the
existence of a certain state of thing and induced him to act on that belief so as to
alter his own previous position, the former is concluded from averring against the
latter a different state of things as existing at the first time.”
The object of estoppel is to prevent fraud and secure justice between the parties by
promotion of honesty and good faith. Therefore, where one person makes a
misrepresentation to the other about a fact he would not be shut out by the rule of
estoppel, if that other person knew the true state of facts and must consequently not
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have been misled by the misrepresentation.
10. The general principle of estoppel is stated thus by the Lord Chancellor in
Cairneross v. Lorimer3 :
“The doctrine will apply, which is to be found, I believe, in the laws of all civilized
nations that if a man either by words or by conduct has intimated that he consents
to an act which has been done, and that he will offer no opposition to it, although it
could not have been lawfully done without his consent, and he thereby induces
others to do that from which they otherwise might have abstained, he cannot
question the legality of the act he had so sanctioned, to the prejudice of those who
have so given faith to his words or to the fair inference to be drawn from his
conduct…. I am of opinion that, generally speaking, if a party having an interest to
prevent an act being done has full notice of it being done, and acquiesces in it, so
as to induce a reasonable belief that he consents to it, and the position of others is
altered by their giving credit to his sincerity, he has no more right to challenge the
act to their prejudice than he would have had if it had, been done by his previous
license.”
11. It may further be mentioned that in Carr v. London & N.W. Ry. Co.4 four
propositions concerning an estoppel by conduct were laid down by Brett, J. (afterwards
Lord Esher) the third of which runs thus:
“If a man either in express terms or by conduct makes a representation to
another of the existence of a certain state of facts which he intends to be acted
upon in a certain way, and it be acted upon in the belief of the existence of such a
state of facts, to the damage of him who so believes and acts, the first is estopped
from denying the existence of such a state of facts.”
This also shows that the person claiming benefit of the doctrine must show that he has
acted to his detriment on the faith of the representation made to him.
12. This was quoted with approval in Sarad v. Gopal5 . It will thus be seen that here
also the person who sets up an estoppel against the other must show that: his
position was altered by reason of the representation or conduct of the latter and unless
he does that even the general principle of estoppel cannot be invoked by him. As
already stated no detriment resulted to any of the defendants as a result of what
Defendant 1 had stated in her letter to her stepmother or as a result of the attestation
by her and her husband of the will of Maddanappa.
13. Mr Venkatarangaiengar then tried to urge before us that it was a case of family
settlement by the father with a view to avoid disputes amongst his heirs and legal
representatives after his death and, therefore, the actions of Defendant 1 can be
looked at as acquiescence in the family settlement effected by the father. A case of
family settlement was never set up by the defendants either in the trial court or in the
High Court and we cannot allow a new case to be set up before us for the first time.
14. Finally on this aspect of the case the learned counsel referred to the
observations of Lord Granworth in Ramsden v. Dyson6 which are as follows:
“If a stranger begins to build on my land supposing it to be his own and I (the
real owner) perceiving his mistake, abstain from setting him right, and leave aim to
persevere in his error, a court of equity will not allow me afterwards to assert my
title to the land, on which he has expended money on the supposition, that the land
was his own. It considers that when I saw the mistake in which he had fallen, it
was my duty to be active and to state his adverse title; and that it would be
dishonest in me to remain wilfully passive on such an occasion in order afterwards
to profit by the mistake which I might have prevented.”
The doctrine of acquiescence cannot afford any help to the appellants for the simple
reason that Maddanappa who knew the true state of affairs could not say that any
mistaken belief was caused in his mind by reason of what the first defendant said or
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did. According to the learned counsel, even if the first defendant's claim to the half
share in the suit property cannot be denied to her she must at least be made to pay
for the improvements effected by Maddanappa, according to her proportionate share in
the suit property. As already stated the appellant was in enjoyment of these properties
after his wife's death and though fully aware of the fact that they belonged to the
daughters he dealt with them as he chose. When he spent moneys on those properties
he knew what he was doing and it is not open to him or to those who claim under him
to say that the real owners of the properties or either of them should be made to pay
for those improvements. No man who, knowing fully well that he has no title to
property spends money on improving it can be permitted to deprive the original owner
of his right to possession of the property except upon the payment for the
improvements which were not effected with the consent of that person. In our view,
therefore, neither was Defendant 1 estopped from claiming possession of half share of
the properties nor can she be made liable to pay half the costs of improvements
alleged to have been made by the second defendant.
15. Now regarding the second point, this objection is purely technical. The plaintiff
sued for partition of the suit properties upon the ground that they were inherited
jointly by her and by the first defendant and claimed possession of her share from the
other defendants who were wrongfully in possession of the properties. She also alleged
that the first defendant did not cooperate in the matter and so she had to institute the
suit. The first defendant admitted the plaintiffs title to half share in the properties and
claimed a decree also in her own favour to the extent of the remaining half share in
the properties. She could also have prayed for her transposition as a co-plaintiff and
under Order 1 Rule 10(2) CPC the Court could have transposed her as a co-plaintiff.
The power under this provision is exercisable by the Court even suo motu. As pointed
out by the Privy Council in Bhupender v. Rajeshwar7 the power ought to be exercised
by a court for doing complete justice between the parties. Here both the plaintiff and
the first defendant claim under the same title and though Defendants 2 to 8 had urged
special defences against the first defendant, they have been fully considered and
adjudicated upon by the High Court while allowing her appeal. Since the trial court
upheld the special defences urged by Defendants 3 to 8 and negatived the claim of the
first defendant it may have thought it unnecessary to order her transposition as
plaintiff. But the High Court could, while upholding her claim, well have done so.
Apparently it either over-looked the technical defect or felt that under Order 41 Rule
33 it had ample power to decree her claim. However that, may be the provisions of
Section 99 would be a bar to interfere here with the High Court's decree upon a
ground such as this.
16. The only other question for consideration is whether the High Court was
justified in awarding mesne profits to the first defendant even though she was not
transposed as a plaintiff. According to the learned counsel mesne profits cannot be
awarded to a successful party to a suit for possession unless a claim was made in
respect of them. The learned counsel is right insofar as mesne profits prior to the suit
are concerned but insofar as mesne profits subsequent to the date of the institution of
the suit, that is, future mesne profits are concerned, the position is governed by Order
20 Rule 12 CPC which is as follows:
“(1) Where a suit is for the recovery of possession of immovable property and for
rent or mesne profits, the court may pass a decree—
(a) for the possession of the property;
(b) for the rent or mesne profits which have accrued on the property during a
period prior to the institution of the suit or directing an inquiry as to such rent or
mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit
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until:
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor with notice to the
decree-holder through the court, or
(iii) the expiration of three years from the date of the decree, whichever event
first occurs.
(2) Where an inquiry is directed under clause (b) or clause (c) a final decree in
respect of the rent or mesne profits shall be passed in accordance with the result of
such inquiry.”
17. The learned counsel, however, relied upon the decision of this Court in Mohd.
Amin v. Vakil Ahmed8 . That was a suit for a declaration that a deed of settlement was
void and for possession of the property which was the subject-matter of the
settlement under that deed. The plaintiff's had not claimed mesne profits, at all in
their plaint but the High Court had passed a decree in the plaintiffs favour not only for
possession but also for mesne profits. In the appeal before this Court against the
decision of the High Court one of the points taken was that in a case of this kind, the
court has no power to award mesne profits. While upholding this contention Bhagwati,
J. who delivered the judgment of the Court has observed thus:
“The learned Solicitor-General appearing for the plaintiffs conceded that there
was no demand for mesne profits as such but urged that the claim for mesne profits
would be included within the expression ‘awarding possession and occupation of the
property aforesaid together with all the rights appertaining thereto’. We are afraid
that the claim for mesne profits cannot be included within this expression and the
High-Court was in error in awarding to the plaintiffs mesne profits though they had
not been claimed in the plaint. The provision in regard to the mesne profits will
therefore have to be deleted from the decree.”
18. In order to satisfy ourselves whether these observations related to the award of
past mesne profits or to the award of future mesne profits we sent for the original
record of this Court and we found that the High Court had awarded past as well as
future mesne profits. Mr S.T. Desai, appearing for Respondent 1 stated that a Full
Bench in Babburu Basavayya v. Babburu Guravayya9 following the decision of the
Judicial Committee in Fakharuddin Mohomed Ahsan v. Official Trustee10 has held that
even after the passing of the preliminary decree, it is open to the court to give
appropriate directions, amongst other matters regarding future mesne profits either
suo motu or on the application of the parties in order to prevent multiplicity of
litigation and to do complete justice between the parties. This decision has been
followed in a large number of cases. In Rachepalli Atchamma v. Yerragunta Rami
Reddy11 , Simma Krishnamma v. Nakka Latchumanaidu12 , Kasibhatla Satyanrayana
Sastrulu v. Kasibhatla Mallikarjuna Sastrulu13 and Ponnuswami Udayar v. Santhappa14
the decision of this Court was cited at the Bar and has been considered. The learned
Judges have said that the authority of the decision in Babburu Basavayya v. Babburu
Guravayya9 is not shaken by what this Court has said. One of the grounds given is that
the former relates to a suit for partition while the latter to a suit for possession
simpliciter. It is not necessary for us to consider whether the decision of this Court can
be distinguished upon this ground, but we feel that when a suitable occasion arises it
may become necessary to reconsider the decision of this Court as to future mesne
profits. In the present case the plaintiff did claim not only partition and separate
possession of her half share of the properties but also past mesne profits. Defendant 1
admitted the plaintiff's claim and in substance prayed for a similar decree in her
favour. The decision of this Court would, therefore, not apply to a case like the one
before us.
19. In the result therefore we uphold the decree of the High Court and dismiss the
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appeal with costs.
———
*
Appeal from the Judgment and Decree, dated 19th February, 1959, of the Mysore High Court in Regular Appeal
No. 208 of 1951-52
1
ILR 5 Cal 669
2 1832 A & E 469
3 3 HLC 829
4
LR 10 CP 307
5 19 IA 203
6 LR I HL App 129 (140)
7
581 A 228
8 1952 SCR 1133 (at page 1144)
9 ILR 1952 Madras 173
10
8 Cal 178 (PC)
11 AIR 1957 AP 52
12 AIR 1958 AP 520
13
AIR 1960 AP 45
14 AIR 1963 Mad 171

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Civil Appeal Nos. 20825-20826 of 2017
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal
2020 SCC OnLine SC 571

(BEFORE R.F. NARIMAN, S. RAVINDRA BHAT AND V. RAMASUBRAMANIAN, JJ.)
Civil Appeal Nos. 20825-20826 of 2017

Arjun Panditrao Khotkar … Appellant;
Versus
Kailash Kushanrao Gorantyal and Others … Respondents.
With
Civil Appeal No. 2407 of 2018
Civil Appeal No. 3696 of 2018
Civil Appeal Nos. 20825-20826 of 2017, Civil Appeal No. 2407 of 2018 and Civil
Appeal No. 3696 of 2018
Decided on July 14, 2020
R.F. NARIMAN, J.:— I.A. No. 134044 of 2019 for intervention in C.A. Nos. 20825-
20826 of 2017 is allowed.
2. These Civil Appeals have been referred to a Bench of three honourable Judges of
this Court by a Division Bench reference order dated 26.07.2019, dealing with the
interpretation of Section 65B of the Indian Evidence Act, 1872 (“Evidence Act”) by
two judgments of this Court. In the reference order, after quoting from Anvar P.V. v.
P.K. Basheer, (2014) 10 SCC 473 (a three Judge Bench decision of this Court), it was
found that a Division Bench judgment in SLP (Crl.) No. 9431 of 2011 reported as
Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801 may need
reconsideration by a Bench of a larger strength.
3. The brief facts necessary to appreciate the controversy in the present case, as
elucidated in Civil Appeals 20825-20826 of 2017, are as follows:
i. Two election petitions were filed by the present Respondents before the Bombay
High Court under Sections 80 and 81 of the Representation of the People Act,
1951, challenging the election of the present Appellant, namely, Shri Arjun
Panditrao Khotkar (who is the Returned Candidate [hereinafter referred to as the
“RC”] belonging to the Shiv Sena party from 101-Jalna Legislative Assembly
Constituency) to the Maharashtra State Legislative Assembly for the term
commencing November, 2014. Election Petition No. 6 of 2014 was filed by the
defeated Congress (I) candidate Shri Kailash Kishanrao Gorantyal, whereas
Election Petition No. 9 of 2014 was filed by one Shri Vijay Chaudhary, an elector
in the said constituency. The margin of victory for the RC was extremely narrow,
namely 296 votes - the RC having secured 45,078 votes, whereas Shri Kailash
Kishanrao Gorantyal secured 44,782 votes.
ii. The entirety of the case before the High Court had revolved around four sets of
nomination papers that had been filed by the RC. It was the case of the present
Respondents that each set of nomination papers suffered from defects of a
substantial nature and that, therefore, all four sets of nomination papers, having
been improperly accepted by the Returning Officer of the Election Commission,
one Smt. Mutha, (hereinafter referred to as the “RO”), the election of the RC be
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declared void. In particular, it was the contention of the present Respondents
that the late presentation of Nomination Form Nos. 43 and 44 by the RC-
inasmuch as they were filed by the RC after the stipulated time of 3.00 p.m. on
27.09.2014 - rendered such nomination forms not being filed in accordance with
the law, and ought to have been rejected.
iii. In order to buttress this submission, the Respondents sought to rely upon video-
camera arrangements that were made both inside and outside the office of the
RO. According to the Respondents, the nomination papers were only offered at
3.53 p.m. (i.e. beyond 3.00 p.m.), as a result of which it was clear that they had
been filed out of time. A specific complaint making this objection was submitted
by Shri Kailash Kishanrao Gorantyal before the RO on 28.09.2014 at 11.00 a.m.,
in which it was requested that the RO reject the nomination forms that had been
improperly accepted. This request was rejected by the RO on the same day,
stating that the nomination forms had, in fact, been filed within time.
4. Given the fact that allegations and counter allegations were made as to the time
at which the nomination forms were given to the RO, and that videography was
available, the High Court, by its order dated 16.03.2016, ordered the Election
Commission and the concerned officers to produce the entire record of the election of
this Constituency, including the original video recordings. A specific order was made
that this electronic record needs to be produced along with the ‘necessary certificates’.
5. In compliance with this order, such video recordings were produced by the
Election Commission, together with a certificate issued with regard to the CDs/VCDs,
which read as follows:
“Certificate
This is to certify that the CDs in respect of video recording done on two days of
filing nomination forms of date 26.9.2014 and 27.9.2014 which were present in the
record are produced.
Sd/- Sd/-
Asst. Returning Officer 101 Jalna Returning Officer 101 Jalna Legislative
Legislative Assembly Assembly Constituency/Tahsildar Jalna”
Constituency/Tahsildar Jalna
6. Transcripts of the contents of these CDs/VCDs were prepared by the High Court
itself. Issue nos. 6 and 7 as framed by the High Court (and its answers to these
issues) are important, and are set out in the impugned judgment dated 24.11.2017,
and extracted hereinbelow:
“Issues Findings
6. Whether the petitioner proves that the Affirmative. (nomination papers at Sr.
nomination papers at Sr. Nos. 43 and 44 Nos. 43 and 44 were not presented by RC
were not presented by before 3.00 p.m. of 27.9.2014.)
respondent/Returned candidate before
3.00 p.m. on 27/09/2014 ?
7. Whether the petitioner proves that the Affirmative. (A, B forms were presented
respondent/Returned candidate after 3.00 p.m. of 27.9.2014)”
submitted original forms A and B along
with nomination paper only on
27/09/2014 after 3.00 p.m. and along
with nomination paper at Sr. No. 44 ?
7. In answering issues 6 and 7, the High Court recorded:
“60. Many applications were given by the petitioner of Election Petition No.
6/2014 to get the copies of electronic record in respect of aforesaid incidents with
certificate as provided in section 65-B of the Evidence Act. The correspondence
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made with them show that even after leaving of the office by Smt. Mutha, the
Government machinery, incharge of the record, intentionally avoided to give
certificate as mentioned in section 65-B of the Evidence Act. After production of the
record in the Court in this regard, this Court had allowed to Election Commission by
order to give copies of such record to applicants, but after that also the authority
avoided to give copies by giving lame excuses. It needs to be kept in mind that the
RC is from political party which has alliance with ruling party, BJP, not only in the
State, but also at the center. It is unfortunate that the machinery which is expected
to be fair did not act fairly in the present matter. The circumstances of the present
matter show that the aforesaid two officers tried to cover up their mischief. However
the material gives only one inference that nomination forms Nos. 43 and 44 with A,
B forms were presented before the RO by RC after 3.00 p.m. of 27.9.2014 and they
were not handed over prior to 3.00 p.m. In view of objection of the learned counsels
of the RC to using the information contained in aforesaid VCDs, marked as Article
A1 to A6, this Court had made order on 11.7.2017 that the objections will be
considered in the judgment itself. This VCDs are already exhibited by this Court as
Exhs. 70 to 75. Thus, if the contents of the aforesaid VCDs can be used in the
evidence, then the petitioners are bound to succeed in the present matters.”
8. The High Court then set out Sections 65-A and 65-B of the Evidence Act, and
referred to this Court's judgment in Anvar P.V. (supra). The Court held in paragraph
65 of the impugned judgment that the CDs that were produced by the Election
Commission could not be treated as an original record and would, therefore, have to
be proved by means of secondary evidence. Finding that no written certificate as is
required by Section 65-B(4) of the Evidence Act was furnished by any of the election
officials, and more particularly, the RO, the High Court then held:
“69. In substantive evidence, in the cross examination of Smt. Mutha, it is
brought on the record that there was no complaint with regard to working of video
cameras used by the office. She has admitted that the video cameras were regularly
used in the office for recording the aforesaid incidents and daily VCDs were
collected of the recording by her office. This record was created as the record of the
activities of the Election Commission. It is brought on the record that on the first
floor of the building, arrangement was made by keeping electronic gazettes like
VCR players etc. and arrangement was made for viewing the recording. It is already
observed that under her instructions, the VCDs were marked of this recording.
Thus, on the basis of her substantive evidence, it can be said that the conditions
mentioned in section 65-B of the Evidence Act are fulfilled and she is certifying the
electronic record as required by section 65-B (4) of the Evidence Act. It can be said
that Election Commission, the machinery avoided to give certificate in writing as
required by section 65-B (4) of the Evidence Act. But, substantive evidence is
brought on record of competent officer in that regard. When the certificate expected
is required to be issued on the basis of best of knowledge and belief, there is
evidence on oath about it of Smt. Mutha. Thus, there is something more than the
contents of certificate mentioned in section 65-B (4) of the Evidence Act in the
present matters. Such evidence is not barred by the provisions of section 65-B of
the Evidence Act as that evidence is only on certification made by the responsible
official position like RO. She was incharge of the management of the relevant
activities and so her evidence can be used and needs to be used as the compliance
of the provision of section 65-B of the Evidence Act. This Court holds that there is
compliance of the provision of section 65-B of the Evidence Act in the present
matter in respect of aforesaid electronic record and so, the information contained in
the record can be used in the evidence.”
9. Based, therefore, on “substantial compliance” of the requirement of giving a
certificate under Section 65B of the Evidence Act, it was held that the CDs/VCDs were
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admissible in evidence, and based upon this evidence it was found that, as a matter of
fact, the nomination forms by the RC had been improperly accepted. The election of
the RC was therefore was declared void in the impugned judgment.
10. Shri Ravindra Adsure, learned advocate appearing on behalf of the Appellant,
submitted that the judgment in Anvar P.V. (supra) covered the case before us. He
argued that without the necessary certificate in writing and signed under Section 65B
(4) of the Evidence Act, the CDs/VCDs upon which the entirety of the judgment rested
could not have been admitted in evidence. He referred to Tomaso Bruno v. State of
Uttar Pradesh, (2015) 7 SCC 178, and argued that the said judgment did not notice
either Section 65B or Anvar P.V. (supra), and was therefore per incuriam. He also
argued that Shafhi Mohammad (supra), being a two-Judge Bench of this Court, could
not have arrived at a finding contrary to Anvar P.V. (supra), which was the judgment
of three Hon'ble Judges of this Court. In particular, he argued that it could not have
been held in Shafhi Mohammad (supra) that whenever the interest of justice required,
the requirement of a certificate could be done away with under Section 65B(4).
Equally, this Court's judgment dated 03.04.2018, reported as (2018) 5 SCC 311,
which merely followed the law laid down in Shafhi Mohammad (supra), being contrary
to the larger bench judgment in Anvar P.V. (supra), should also be held as not having
laid down good law. He further argued that the Madras High Court judgment in K.
Ramajyam v. Inspector of Police, (2016) Crl. LJ 1542, being contrary to Anvar P.V.
(supra), also does not lay down the law correctly, in that it holds that evidence
aliunde, that is outside Section 65B, can be taken in order to make electronic records
admissible. In the facts of the present case, he contended that since it was clear that
the requisite certificate had not been issued, no theory of “substantial compliance”
with the provisions of Section 65B(4), as was held by the impugned judgment, could
possibly be sustained in law.
11. Ms. Meenakshi Arora, learned Senior Advocate appearing on behalf of the
Respondents, has taken us in copious detail through the facts of this case, and has
argued that the High Court has directed the Election Commission to produce before
the Court the original CDs/VCDs of the video-recording done at the office of the RO,
along with the necessary certificate. An application dated 16.08.2016 was also made
to the District Election Commission and RO as well as the Assistant RO for the
requisite certificate under Section 65B. A reply was given on 14.09.2016, that this
certificate could not be furnished since the matter was sub-judice. Despite this, later
on, on 26.07.2017 her client wrote to the authorities again requesting for issuance of
certificate under Section 65B, but by replies dated 31.07.2017 and 02.08.2017, no
such certificate was forthcoming. Finally, after having run from pillar to post, her client
applied on 26.08.2017 to the Chief Election Commissioner, New Delhi, stating that the
authorities were refusing to give her client the necessary certificate under Section 65B
and that the Chief Election Commissioner should therefore ensure that it be given to
them. To this communication, no reply was forthcoming from the Chief Election
Commissioner, New Delhi. Given this, the High Court at several places had observed in
the course of the impugned judgment that the authorities deliberately refused, despite
being directed, to supply the requisite certificate under Section 65B, as a result of
which the impugned judgment correctly relied upon the oral testimony of the RO
herself. According to Ms. Arora, such oral testimony taken down in the form of writing,
which witness statement is signed by the RO, would itself amount to the requisite
certificate being issued under Section 65B(4) in the facts of this case, as was correctly
held by the High Court. Quite apart from this, Ms. Arora also stated that - independent
of the finding given by the High Court by relying upon CDs/VCDs - the High Court also
relied upon other documentary and oral evidence to arrive at the finding that the RC
had not handed over nomination forms directly to the RO at 2.20 p.m (i.e. before
3pm). In fact, it was found on the basis of this evidence that the nomination forms
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were handed over and accepted by the RO only after 3.00 p.m. and were therefore
improperly accepted, as a result of which, the election of the Appellant was correctly
set aside.
12. On law, Ms. Arora argued that it must not be forgotten that Section 65B is a
procedural provision, and it cannot be the law that even where a certificate is
impossible to get, the absence of such certificate should result in the denial of crucial
evidence which would point at the truth or falsehood of a given set of facts. She,
therefore, supported the decision in Shafhi Mohammad (supra), stating that Anvar P.V.
(supra) could be considered to be good law only in situations where it was possible for
the party to produce the requisite certificate. In cases where this becomes difficult or
impossible, the interest of justice would require that a procedural provision be not
exalted to such a level that vital evidence would be shut out, resulting in manifest
injustice.
13. Shri Vikas Upadhyay, appearing on behalf of the Intervenor, took us through
the various provisions of the Information Technology Act, 2000 along with Section 65B
of the Evidence Act, and argued that Section 65B does not refer to the stage at which
the certificate under Section 65B(4) ought to be furnished. He relied upon a judgment
of the High Court of Rajasthan as well as the High Court of Bombay, in addition to
Kundan Singh v. State, 2015 SCC OnLine Del 13647 of the Delhi High Court, to argue
that the requisite certificate need not necessarily be given at the time of tendering of
evidence but could be at a subsequent stage of the proceedings, as in cases where the
requisite certificate is not forthcoming due to no fault of the party who tried to produce
it, but who had to apply to a Judge for its production. He also argued that Anvar P.V.
(supra) required to be clarified to the extent that Sections 65A and 65B being a
complete code as to admissibility of electronic records, the “baggage” of Primary and
Secondary Evidence contained in Sections 62 and 65 of the Evidence Act should not at
all be adverted to, and that the drill of Section 65A and 65B alone be followed when it
comes to admissibility of information contained in electronic records.
14. It is now necessary to set out the relevant provisions of the Evidence Act and
the Information Technology Act, 2000. Section 3 of the Evidence Act defines
“document” as follows:
“Document.-- “Document” means any matter expressed or described upon any
substance by means of letters, figures or marks, or by more than one of those
means, intended to be used, or which may be used, for the purpose of recording
that matter.”
15. “Evidence” in Section 3 is defined as follows:
“Evidence.”-- “Evidence” means and includes—(1) all statements which the
Court permits or requires to be made before it by witnesses, in relation to matters
of fact under inquiry;
such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the
Court; such documents are called documentary evidence.”
16. The Evidence Act also declares that the expressions “Certifying Authority”,
“electronic signature”, “Electronic Signature Certificate”, “electronic form”, “electronic
records”, “information”, “secure electronic record”, “secure digital signature” and
“subscriber” shall have the meanings respectively assigned to them in the Information
Technology Act.
17. Section 22-A of the Evidence Act, which deals with the relevance of oral
admissions as to contents of electronic records, reads as follows:
“22A. When oral admission as to contents of electronic records are
relevant. -- Oral admissions as to the contents of electronic records are not
relevant, unless the genuineness of the electronic record produced is in question.”
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18. Section 45A of the Evidence Act, on the opinion of the Examiner of Electronic
Evidence, then states:
“45A. Opinion of Examiner of Electronic Evidence.--When in a proceeding,
the court has to form an opinion on any matter relating to any information
transmitted or stored in any computer resource or any other electronic or digital
form, the opinion of the Examiner of Electronic Evidence referred to in section 79A
of the Information Technology Act, 2000 (21 of 2000), is a relevant fact.
Explanation.-- For the purposes of this section, an Examiner of Electronic
Evidence shall be an expert.”
19. Sections 65-A and 65-B of the Evidence Act read as follows:
“65A. Special provisions as to evidence relating to electronic record.--The
contents of electronic records may be proved in accordance with the provisions of
section 65B.”
“65B. Admissibility of electronic records.— (1) Notwithstanding anything
contained in this Act, any information contained in an electronic record which is
printed on a paper, stored, recorded or copied in optical or magnetic media
produced by a computer (hereinafter referred to as the computer output) shall be
deemed to be also a document, if the conditions mentioned in this section are
satisfied in relation to the information and computer in question and shall be
admissible in any proceedings, without further proof or production of the original, as
evidence or any contents of the original or of any fact stated therein of which direct
evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output
shall be the following, namely:
(a) the computer output containing the information was produced by the
computer during the period over which the computer was used regularly to
store or process information for the purposes of any activities regularly carried
on over that period by the person having lawful control over the use of the
computer;
(b) during the said period, information of the kind contained in the electronic
record or of the kind from which the information so contained is derived was
regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating
properly or, if not, then in respect of any period in which it was not operating
properly or was out of operation during that part of the period, was not such
as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived
from such information fed into the computer in the ordinary course of the said
activities.
(3) Where over any period, the function of storing or processing information for
the purposes of any activities regularly carried on over that period as mentioned in
clause (a) of sub-section (2) was regularly performed by computers, whether—
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that
period; or
(d) in any other manner involving the successive operation over that period, in
whatever order, of one or more computers and one or more combinations of
computers,
all the computers used for that purpose during that period shall be treated
for the purposes of this section as constituting a single computer; and
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references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by
virtue of this section, a certificate doing any of the following things, that is to say,—
(a) identifying the electronic record containing the statement and describing the
manner in which it was produced;
(b) giving such particulars of any device involved in the production of that
electronic record as may be appropriate for the purpose of showing that the
electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-
section (2) relate,
and purporting to be signed by a person occupying a responsible official
position in relation to the operation of the relevant device or the management
of the relevant activities (whichever is appropriate) shall be evidence of any
matter stated in the certificate; and for the purposes of this subsection it shall
be sufficient for a matter to be stated to the best of the knowledge and belief
of the person stating it.
(5) For the purposes of this section,
(a) information shall be taken to be supplied to a computer if it is supplied
thereto in any appropriate form and whether it is so supplied directly or (with
or without human intervention) by means of any appropriate equipment; --
(b) whether in the course of activities carried on by any official, information is
supplied with a view to its being stored or processed for the purposes of those
activities by a computer operated otherwise than in the course of those
activities, that information, if duly supplied to that computer, shall be taken to
be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer
whether it was produced by it directly or (with or without human intervention)
by means of any appropriate equipment.
Explanation. -- For the purposes of this section any reference to information
being derived from other information shall be a reference to its being derived
therefrom by calculation, comparison or any other process.”
20. The following definitions as contained in Section 2 of the Information
Technology Act, 2000 are also relevant:
“(i) “computer” means any electronic, magnetic, optical or other high-speed data
processing device or system which performs logical, arithmetic, and memory
functions by manipulations of electronic, magnetic or optical impulses, and includes
all input, output, processing, storage, computer software or communication facilities
which are connected or related to the computer in a computer system or computer
network;”
“(j) “computer network” means the inter-connection of one or more computers or
computer systems or communication device through- (i) the use of satellite,
microwave, terrestrial line, wire, wireless or other communication media; and (ii)
terminals or a complex consisting of two or more interconnected computers or
communication device whether or not the inter-connection is continuously
maintained;”
“(l) “computer system” means a device or collection of devices, including input
and output support devices and excluding calculators which are not programmable
and capable of being used in conjunction with external files, which contain
computer programmes, electronic instructions, input data and output data, that
performs logic, arithmetic, data storage and retrieval, communication control and
other functions;”
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“(o) “data” means a representation of information, knowledge, facts, concepts or
instructions which are being prepared or have been prepared in a formalised
manner, and is intended to be processed, is being processed or has been processed
in a computer system or computer network, and may be in any form (including
computer printouts magnetic or optical storage media, punched cards, punched
tapes) or stored internally in the memory of the computer;”
“(r) “electronic form”, with reference to information, means any information
generated, sent, received or stored in media, magnetic, optical, computer memory,
micro film, computer generated micro fiche or similar device;”
“(t) “electronic record” means data, record or data generated, image or sound
stored, received or sent in an electronic form or micro film or computer generated
micro fiche;”
21. Sections 65A and 65B occur in Chapter V of the Evidence Act which is entitled
“Of Documentary Evidence”. Section 61 of the Evidence Act deals with the proof of
contents of documents, and states that the contents of documents may be proved
either by primary or by secondary evidence. Section 62 of the Evidence Act defines
primary evidence as meaning the document itself produced for the inspection of the
court. Section 63 of the Evidence Act speaks of the kind or types of secondary
evidence by which documents may be proved. Section 64 of the Evidence Act then
enacts that documents must be proved by primary evidence except in the
circumstances hereinafter mentioned. Section 65 of the Evidence Act is important, and
states that secondary evidence may be given of “the existence, condition or contents
of a document in the following cases…”.
22. Section 65 differentiates between existence, condition and contents of a
document. Whereas “existence” goes to “admissibility” of a document, “contents” of a
document are to be proved after a document becomes admissible in evidence. Section
65A speaks of “contents” of electronic records being proved in accordance with the
provisions of Section 65B. Section 65B speaks of “admissibility” of electronic records
which deals with “existence” and “contents” of electronic records being proved once
admissible into evidence. With these prefatory observations let us have a closer look at
Sections 65A and 65B.
23. It will first be noticed that the subject matter of Sections 65A and 65B of the
Evidence Act is proof of information contained in electronic records. The marginal note
to Section 65A indicates that “special provisions” as to evidence relating to electronic
records are laid down in this provision. The marginal note to Section 65B then refers to
“admissibility of electronic records”.
24. Section 65B(1) opens with a non-obstante clause, and makes it clear that any
information that is contained in an electronic record which is printed on a paper,
stored, recorded or copied in optical or magnetic media produced by a computer shall
be deemed to be a document, and shall be admissible in any proceedings without
further proof of production of the original, as evidence of the contents of the original or
of any facts stated therein of which direct evidence would be admissible. The deeming
fiction is for the reason that “document” as defined by Section 3 of the Evidence Act
does not include electronic records.
25. Section 65B(2) then refers to the conditions that must be satisfied in respect of
a computer output, and states that the test for being included in conditions 65B(2(a))
to 65(2(d)) is that the computer be regularly used to store or process information for
purposes of activities regularly carried on in the period in question. The conditions
mentioned in sub-sections 2(a) to 2(d) must be satisfied cumulatively.
26. Under Sub-section (4), a certificate is to be produced that identifies the
electronic record containing the statement and describes the manner in which it is
produced, or gives particulars of the device involved in the production of the electronic
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record to show that the electronic record was produced by a computer, by either a
person occupying a responsible official position in relation to the operation of the
relevant device; or a person who is in the management of “relevant activities” -
whichever is appropriate. What is also of importance is that it shall be sufficient for
such matter to be stated to the “best of the knowledge and belief of the person stating
it”. Here, “doing any of the following things…” must be read as doing all of the
following things, it being well settled that the expression “any” can mean “all” given
the context (see, for example, this Court's judgments in Bansilal Agarwalla v. State of
Bihar, (1962) 1 SCR 331 and Om Parkash v. Union of India, (2010) 4 SCC 172 ). This
being the case, the conditions mentioned in sub-section (4) must also be interpreted
as being cumulative.
27. It is now appropriate to examine the manner in which Section 65B was
interpreted by this Court. In Anvar P.V. (supra), a three Judge Bench of this Court,
after setting out Sections 65A and 65B of the Evidence Act, held:
“14. Any documentary evidence by way of an electronic record under the
Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance
with the procedure prescribed under Section 65-B. Section 65-B deals with the
admissibility of the electronic record. The purpose of these provisions is to sanctify
secondary evidence in electronic form, generated by a computer. It may be noted
that the section starts with a non obstante clause. Thus, notwithstanding anything
contained in the Evidence Act, any information contained in an electronic record
which is printed on a paper, stored, recorded or copied in optical or magnetic media
produced by a computer shall be deemed to be a document only if the conditions
mentioned under sub-section (2) are satisfied, without further proof or production
of the original. The very admissibility of such a document i.e. electronic record
which is called as computer output, depends on the satisfaction of the four
conditions under Section 65-B(2). Following are the specified conditions under
Section 65-B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced
by the computer during the period over which the same was regularly used to
store or process information for the purpose of any activity regularly carried on
over that period by the person having lawful control over the use of that
computer;
(ii) The information of the kind contained in electronic record or of the kind from
which the information is derived was regularly fed into the computer in the
ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating
properly and that even if it was not operating properly for some time, the
break or breaks had not affected either the record or the accuracy of its
contents; and
(iv) The information contained in the record should be a reproduction or
derivation from the information fed into the computer in the ordinary course of
the said activity.
15. Under Section 65-B(4) of the Evidence Act, if it is desired to give a
statement in any proceedings pertaining to an electronic record, it is permissible
provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing
the statement;
(b) The certificate must describe the manner in which the electronic record was
produced;
(c) The certificate must furnish the particulars of the device involved in the
production of that record;
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(d) The certificate must deal with the applicable conditions mentioned under
Section 65-B(2) of the Evidence Act; and (e) The certificate must be signed
by a person occupying a responsible official position in relation to the
operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that
the same is to the best of his knowledge and belief. Most importantly, such a
certificate must accompany the electronic record like computer printout, compact
disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a
statement is sought to be given in evidence, when the same is produced in
evidence. All these safeguards are taken to ensure the source and authenticity,
which are the two hallmarks pertaining to electronic record sought to be used as
evidence. Electronic records being more susceptible to tampering, alteration,
transposition, excision, etc. without such safeguards, the whole trial based on proof
of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65-B of the
Evidence Act, would the question arise as to the genuineness thereof and in that
situation, resort can be made to Section 45-A—opinion of Examiner of Electronic
Evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic
record by oral evidence if requirements under Section 65-B of the Evidence Act are
not complied with, as the law now stands in India.
xxx xxx xxx
20. Proof of electronic record is a special provision introduced by the IT Act
amending various provisions under the Evidence Act. The very caption of Section 65
-A of the Evidence Act, read with Sections 59 and 65-B is sufficient to hold that the
special provisions on evidence relating to electronic record shall be governed by the
procedure prescribed under Section 65-B of the Evidence Act. That is a complete
code in itself. Being a special law, the general law under Sections 63 and 65 has to
yield.
21. In State (NCT of Delhi) v. Navjot Sandhu a two-Judge Bench of this Court
had an occasion to consider an issue on production of electronic record as evidence.
While considering the printouts of the computerised records of the calls pertaining
to the cellphones, it was held at para 150 as follows: (SCC p. 714)
“150. According to Section 63, “secondary evidence” means and includes,
among other things, ‘copies made from the original by mechanical processes
which in themselves insure the accuracy of the copy, and copies compared with
such copies’. Section 65 enables secondary evidence of the contents of a
document to be adduced if the original is of such a nature as not to be easily
movable. It is not in dispute that the information contained in the call records is
stored in huge servers which cannot be easily moved and produced in the court.
That is what the High Court has also observed at para 276. Hence, printouts
taken from the computers/servers by mechanical process and certified by a
responsible official of the service-providing company can be led in evidence
through a witness who can identify the signatures of the certifying officer or
otherwise speak of the facts based on his personal knowledge. Irrespective of the
compliance with the requirements of Section 65-B, which is a provision dealing
with admissibility of electronic records, there is no bar to adducing secondary
evidence under the other provisions of the Evidence Act, namely, Sections 63
and 65. It may be that the certificate containing the details in sub-section (4) of
Section 65-B is not filed in the instant case, but that does not mean that
secondary evidence cannot be given even if the law permits such evidence to be
given in the circumstances mentioned in the relevant provisions, namely,
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Sections 63 and 65.”
It may be seen that it was a case where a responsible official had duly certified
the document at the time of production itself. The signatures in the certificate were
also identified. That is apparently in compliance with the procedure prescribed
under Section 65-B of the Evidence Act. However, it was held that irrespective of
the compliance with the requirements of Section 65-B, which is a special provision
dealing with admissibility of the electronic record, there is no bar in adducing
secondary evidence, under Sections 63 and 65, of an electronic record.”
22. The evidence relating to electronic record, as noted hereinbefore, being a
special provision, the general law on secondary evidence under Section 63 read with
Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non
derogant, special law will always prevail over the general law. It appears, the court
omitted to take note of Sections 59 and 65-A dealing with the admissibility of
electronic record. Sections 63 and 65 have no application in the case of secondary
evidence by way of electronic record; the same is wholly governed by Sections 65-A
and 65-B. To that extent, the statement of law on admissibility of secondary
evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu
case, does not lay down the correct legal position. It requires to be overruled and
we do so. An electronic record by way of secondary evidence shall not be admitted
in evidence unless the requirements under Section 65-B are satisfied. Thus, in the
case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in
terms of Section 65-B obtained at the time of taking the document, without which,
the secondary evidence pertaining to that electronic record, is inadmissible.
23. The appellant admittedly has not produced any certificate in terms of Section
65-B in respect of the CDs, Exts. P-4, P-8, P-9, P-10, P-12, P-13, P-15, P-20 and P-
22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set
up regarding the corrupt practice using songs, announcements and speeches fall to
the ground.
24. The situation would have been different had the appellant adduced primary
evidence, by making available in evidence, the CDs used for announcement and
songs. Had those CDs used for objectionable songs or announcements been duly
got seized through the police or Election Commission and had the same been used
as primary evidence, the High Court could have played the same in court to see
whether the allegations were true. That is not the situation in this case. The
speeches, songs and announcements were recorded using other instruments and by
feeding them into a computer, CDs were made therefrom which were produced in
court, without due certification. Those CDs cannot be admitted in evidence since the
mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is
clarified that notwithstanding what we have stated herein in the preceding
paragraphs on the secondary evidence of electronic record with reference to
Sections 59, 65-A and 65-B of the Evidence Act, if an electronic record as such is
used as primary evidence under Section 62 of the Evidence Act, the same is
admissible in evidence, without compliance with the conditions in Section 65-B of
the Evidence Act.”
28. Shri Upadhyay took exception to the language of paragraph 24 in this
judgment. According to the learned counsel, primary and secondary evidence as to
documents, referred to in Sections 61 to Section 65 of the Evidence Act, should be
kept out of admissibility of electronic records, given the fact that Sections 65A and
65B are a complete code on the subject.
29. At this juncture, it is important to note that Section 65B has its genesis in
Section 5 of the Civil Evidence Act 1968 (UK), which reads as follows:
“Admissibility of statements produced by computers.
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(1) In any civil proceedings a statement contained in a document produced by a
computer shall, subject to rules of court, be admissible as evidence of any fact
stated therein of which direct oral evidence would be admissible, if it is shown that
the conditions mentioned in subsection (2) below are satisfied in relation to the
statement and computer in question.
(2) The said conditions are—
(a) that the document containing the statement was produced by the computer
during a period over which the computer was used regularly to store or
process information for the purposes of any activities regularly carried on over
that period, whether for profit or not, by any body, whether corporate or not,
or by any individual;
(b) that over that period there was regularly supplied to the computer in the
ordinary course of those activities information of the kind contained in the
statement or of the kind from which the information so contained is derived;
(c) that throughout the material part of that period the computer was operating
properly or, if not, that any respect in which it was not operating properly or
was out of operation during that part of that period was not such as to affect
the production of the document or the accuracy of its contents; and
(d) that the information contained in the statement reproduces or is derived from
information supplied to the computer in the ordinary course of those activities.
(3) Where over a period the function of storing or processing information for the
purposes of any activities regularly carried on over that period as mentioned in
subsection (2)(a) above was regularly performed by computers, whether—
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that
period; or
(d) in any other manner involving the successive operation over that period, in
whatever order, of one or more computers and one or more combinations of
computers,
all the computers used for that purpose during that period shall be treated for
the purposes of this Part of this Act as constituting a single computer; and
references in this Part of this Act to a computer shall be construed accordingly.
(4) In any civil proceedings where it is desired to give a statement in evidence
by virtue of this section, a certificate doing any of the following things, that is to
say—
(a) identifying the document containing the statement and describing the
manner in which it was produced;
(b) giving such particulars of any device involved in the production of that
document as may be appropriate for the purpose of showing that the
document was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in
subsection (2) above relate,
and purporting to be signed by a person occupying a responsible position in
relation to the operation of the relevant device or the management of the relevant
activities (whichever is appropriate) shall be evidence of any matter stated in the
certificate; and for the purposes of this subsection it shall be sufficient for a matter
to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this Part of this Act—
(a) information shall be taken to be supplied to a computer if it is supplied
thereto in any appropriate form and whether it is so supplied directly or (with
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or without human intervention) by means of any appropriate equipment;

(b) where, in the course of activities carried on by any individual or body,
information is supplied with a view to its being stored or processed for the
purposes of those activities by a computer operated otherwise than in the
course of those activities, that information, if duly supplied to that computer,
shall be taken to be supplied to it in the course of those activities;
(c) a document shall be taken to have been produced by a computer whether it
was produced by it directly or (with or without human intervention) by means
of any appropriate equipment.
(6) Subject to subsection (3) above, in this Part of this Act “computer” means
any device for storing and processing information, and any reference to information
being derived from other information is a reference to its being derived therefrom
by calculation, comparison or any other process.”
30. It may be noticed that sub-sections (2) to (5) of Section 65B of the Evidence
Act are a reproduction of sub-sections (2) to (5) of Section 5 of the Civil Evidence Act,
1968, with minor changes3 . The definition of “computer” under Section 5(6) of the
Civil Evidence Act, 1968 was not, however, adopted by Section 2(i) of the Information
Technology Act, 2000, which as noted above, is a ‘means and includes’ definition of a
much more complex and intricate nature. It is also important to note Section 6(1) and
(5) of the Civil Evidence Act, 1968, which state as follows:
“(1) Where in any civil proceedings a statement contained in a document is
proposed to be given in evidence by virtue of section 2, 4 or 5 of this Act it may,
subject to any rules of court, be proved by the production of that document or
(whether or not that document is still in existence) by the production of a copy of
that document, or of the material part thereof, authenticated in such manner as the
court may approve.
xxx xxx xxx
(5) If any person in a certificate tendered in evidence in civil proceedings by
virtue of section 5(4) of this Act wilfully makes a statement material in those
proceedings which he knows to be false or does not believe to be true, he shall be
liable on conviction on indictment to imprisonment for a term not exceeding two
years or a fine or both.”
31. Section 6(1), in essence, maintains the dichotomy between proof by ‘primary’
and ‘secondary’ evidence - proof by production of the ‘document’ itself being primary
evidence, and proof by production of a copy of that document, as authenticated, being
secondary evidence. Section 6(5), which gives teeth to the person granting the
certificate mentioned in Section 5(4) of the Act, by punishing false statements wilfully
made in the certificate, has not been included in the Indian Evidence Act. These
sections have since been repealed by the Civil Evidence Act of 1995 (UK), pursuant to
a UK Law Commission Report published in September, 1993 (Law Com. No. 216), by
which the strict rule as to hearsay evidence was relaxed, and hearsay evidence was
made admissible in the circumstances mentioned by the Civil Evidence Act of 1995.
Sections 8, 9 and 13 of this Act are important, and are set out hereinbelow:
“8. Proof of statements contained in documents.
(1) Where a statement contained in a document is admissible as evidence in civil
proceedings, it may be proved—
(a) by the production of that document, or
(b) whether or not that document is still in existence, by the production of a
copy of that document or of the material part of it,
authenticated in such manner as the court may approve.
(2) It is immaterial for this purpose how many removes there are between a
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copy and the original.
9. Proof of records of business or public authority.
(1) A document which is shown to form part of the records of a business or
public authority may be received in evidence in civil proceedings without further
proof.
(2) A document shall be taken to form part of the records of a business or public
authority if there is produced to the court a certificate to that effect signed by an
officer of the business or authority to which the records belong. For this purpose—
(a) a document purporting to be a certificate signed by an officer of a business or
public authority shall be deemed to have been duly given by such an officer
and signed by him; and
(b) a certificate shall be treated as signed by a person if it purports to bear a
facsimile of his signature.
(3) The absence of an entry in the records of a business or public authority may
be proved in civil proceedings by affidavit of an officer of the business or authority
to which the records belong.
(4) In this section—
“records” means records in whatever form;
“business” includes any activity regularly carried on over a period of time,
whether for profit or not, by any body (whether corporate or not) or by an
individual;
“officer” includes any person occupying a responsible position in relation to
the relevant activities of the business or public authority or in relation to its
records; and
“public authority” includes any public or statutory undertaking, any
government department and any person holding office under Her Majesty.
(5) The court may, having regard to the circumstances of the case, direct that all
or any of the above provisions of this section do not apply in relation to a particular
document or record, or description of documents or records.”
32. Section 13 of this Act defines “document” as follows:
“document” means anything in which information of any description is recorded,
and “copy”, in relation to a document, means anything onto which information
recorded in the document has been copied, by whatever means and whether
directly or indirectly;”
33. Section 15(2) of this Act repeals enactments mentioned in Schedule II therein;
and Schedule II repeals Part I of the Civil Evidence Act, 1968 - of which Sections 5
and 6 were a part. The definition of “records” and “document” in this Act would show
that electronic records are considered to be part of “document” as defined, needing no
separate treatment as to admissibility or proof. It is thus clear that in UK law, as at
present, no distinction is made between computer generated evidence and other
evidence either qua the admissibility of, or the attachment of weight to, such
evidence.
34. Coming back to Section 65B of the Indian Evidence Act, subsection (1) needs
to be analysed. The sub-section begins with a nonobstante clause, and then goes on to
mention information contained in an electronic record produced by a computer, which
is, by a deeming fiction, then made a “document”. This deeming fiction only takes
effect if the further conditions mentioned in the Section are satisfied in relation to both
the information and the computer in question; and if such conditions are met, the
“document” shall then be admissible in any proceedings. The words “…without further
proof or production of the original…” make it clear that once the deeming fiction is
given effect by the fulfilment of the conditions mentioned in the Section, the “deemed
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document” now becomes admissible in evidence without further proof or production of
the original as evidence of any contents of the original, or of any fact stated therein of
which direct evidence would be admissible.
35. The non-obstante clause in sub-section (1) makes it clear that when it comes to
information contained in an electronic record, admissibility and proof thereof must
follow the drill of Section 65B, which is a special provision in this behalf - Sections 62
to 65 being irrelevant for this purpose. However, Section 65B(1) clearly differentiates
between the “original” document - which would be the original “electronic record”
contained in the “computer” in which the original information is first stored-and the
computer output containing such information, which then may be treated as evidence
of the contents of the “original” document. All this necessarily shows that Section 65B
differentiates between the original information contained in the “computer” itself and
copies made therefrom - the former being primary evidence, and the latter being
secondary evidence.
36. Quite obviously, the requisite certificate in sub-section (4) is unnecessary if the
original document itself is produced. This can be done by the owner of a laptop
computer, a computer tablet or even a mobile phone, by stepping into the witness box
and proving that the concerned device, on which the original information is first
stored, is owned and/or operated by him. In cases where “the computer”, as defined,
happens to be a part of a “computer system” or “computer network” (as defined in the
Information Technology Act, 2000) and it becomes impossible to physically bring such
network or system to the Court, then the only means of proving information contained
in such electronic record can be in accordance with Section 65B(1), together with the
requisite certificate under Section 65B(4). This being the case, it is necessary to clarify
what is contained in the last sentence in paragraph 24 of Anvar P.V. (supra) which
reads as “…if an electronic record as such is used as primary evidence under Section
62 of the Evidence Act…”. This may more appropriately be read without the words
“under Section 62 of the Evidence Act…”,. With this minor clarification, the law stated
in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.
37. In fact, in Vikram Singh v. State of Punjab, (2017) 8 SCC 518, a three-Judge
Bench of this Court followed the law in Anvar P.V. (supra), clearly stating that where
primary evidence in electronic form has been produced, no certificate under Section
65B would be necessary. This was so stated as follows:
“25. The learned counsel contended that the tape-recorded conversation has
been relied on without there being any certificate under Section 65-B of the
Evidence Act, 1872. It was contended that audio tapes are recorded on magnetic
media, the same could be established through a certificate under Section 65-B and
in the absence of the certificate, the document which constitutes electronic record,
cannot be deemed to be a valid evidence and has to be ignored from consideration.
Reliance has been placed by the learned counsel on the judgment of this Court in
Anvar P.V. v. P.K. Basheer. The conversation on the landline phone of the
complainant situate in a shop was recorded by the complainant. The same cassette
containing conversation by which ransom call was made on the landline phone was
handed over by the complainant in original to the police. This Court in its judgment
dated 25-1-2010 has referred to the aforesaid fact and has noted the said fact to
the following effect:
“5. The cassette on which the conversations had been recorded on the landline
was handed over by Ravi Verma to SI Jiwan Kumar and on a replay of the tape,
the conversation was clearly audible and was heard by the police.”
26. The tape-recorded conversation was not secondary evidence which required
certificate under Section 65-B, since it was the original cassette by which ransom
call was tape-recorded, there cannot be any dispute that for admission of secondary
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evidence of electronic record a certificate as contemplated by Section 65-B is a
mandatory condition.”4
38. Despite the law so declared in Anvar P.V. (supra), wherein this Court made it
clear that the special provisions of Sections 65A and 65B of the Evidence Act are a
complete Code in themselves when it comes to admissibility of evidence of information
contained in electronic records, and also that a written certificate under Section 65B
(4) is a sine qua non for admissibility of such evidence, a discordant note was soon
struck in Tomaso Bruno (supra). In this judgment, another three Judge Bench dealt
with the admissibility of evidence in a criminal case in which CCTV footage was sought
to be relied upon in evidence. The Court held:
“24. With the advancement of information technology, scientific temper in the
individual and at the institutional level is to pervade the methods of investigation.
With the increasing impact of technology in everyday life and as a result, the
production of electronic evidence in cases has become relevant to establish the guilt
of the accused or the liability of the defendant. Electronic documents stricto sensu
are admitted as material evidence. With the amendment to the Evidence Act in
2000, Sections 65-A and 65-B were introduced into Chapter V relating to
documentary evidence. Section 65-A provides that contents of electronic records
may be admitted as evidence if the criteria provided in Section 65-B is complied
with. The computer generated electronic records in evidence are admissible at a
trial if proved in the manner specified by Section 65-B of the Evidence Act. Sub-
section (1) of Section 65-B makes admissible as a document, paper printout of
electronic records stored in optical or magnetic media produced by a computer,
subject to the fulfilment of the conditions specified in subsection (2) of Section 65-
B. Secondary evidence of contents of document can also be led under Section 65 of
the Evidence Act. PW 13 stated that he saw the full video recording of the fateful
night in the CCTV camera, but he has not recorded the same in the case diary as
nothing substantial to be adduced as evidence was present in it.
25. The production of scientific and electronic evidence in court as contemplated
under Section 65-B of the Evidence Act is of great help to the investigating agency
and also to the prosecution. The relevance of electronic evidence is also evident in
the light of Mohd. Ajmal Amir Kasab v. State of Maharashtra [(2012) 9 SCC 1],
wherein production of transcripts of internet transactions helped the prosecution
case a great deal in proving the guilt of the accused. Similarly, in State (NCT of
Delhi) v. Navjot Sandhu, the links between the slain terrorists and the masterminds
of the attack were established only through phone call transcripts obtained from the
mobile service providers.”
39. What is clear from this judgment is that the judgment of Anvar P.V. (supra)
was not referred to at all. In fact, the judgment in State v. Navjot Sandhu, (2005) 11
SCC 600 was adverted to, which was a judgment specifically overruled by Anvar P.V.
(supra). It may also be stated that Section 65B(4) was also not at all adverted to by
this judgment. Hence, the declaration of law in Tomaso Bruno (supra) following Navjot
Sandhu (supra) that secondary evidence of the contents of a document can also be led
under Section 65 of the Evidence Act to make CCTV footage admissible would be in
the teeth of Anvar P.V., (supra) and cannot be said to be a correct statement of the
law. The said view is accordingly overruled.
40. We now come to the decision in Shafhi Mohammad (supra). In this case, by an
order dated 30.01.2018 made by two learned Judges of this Court, it was stated:
“21. We have been taken through certain decisions which may be referred to. In
Ram Singh v. Ram Singh [Ram Singh v. Ram Singh, 1985 Supp SCC 611], a three-
Judge Bench considered the said issue. English judgments in R. v. Maqsud Ali [R. v.
Maqsud Ali, (1966) 1 QB 688] and R. v. Robson [R. v. Robson, (1972) 1 WLR 651]
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and American Law as noted in American Jurisprudence 2d (Vol. 29) p. 494, were
cited with approval to the effect that it will be wrong to deny to the law of evidence
advantages to be gained by new techniques and new devices, provided the
accuracy of the recording can be proved. Such evidence should always be regarded
with some caution and assessed in the light of all the circumstances of each case.
Electronic evidence was held to be admissible subject to safeguards adopted by the
Court about the authenticity of the same. In the case of tape-recording, it was
observed that voice of the speaker must be duly identified, accuracy of the
statement was required to be proved by the maker of the record, possibility of
tampering was required to be ruled out. Reliability of the piece of evidence is
certainly a matter to be determined in the facts and circumstances of a fact
situation. However, threshold admissibility of an electronic evidence cannot be ruled
out on any technicality if the same was relevant.
22. In Tukaram S. Dighole v. Manikrao Shivaji Kokate [(2010) 4 SCC 329], the
same principle was reiterated. This Court observed that new techniques and devices
are the order of the day. Though such devices are susceptible to tampering, no
exhaustive rule could be laid down by which the admission of such evidence may be
judged. Standard of proof of its authenticity and accuracy has to be more stringent
than other documentary evidence.
23. In Tomaso Bruno v. State of U.P. [(2015) 7 SCC 178], a three-Judge Bench
observed that advancement of information technology and scientific temper must
pervade the method of investigation. Electronic evidence was relevant to establish
facts. Scientific and electronic evidence can be a great help to an investigating
agency. Reference was made to the decisions of this Court in Mohd. Ajmal Amir
Kasab v. State of Maharashtra [(2012) 9 SCC 1] and State (NCT of Delhi) v. Navjot
Sandhu.
24. We may, however, also refer to the judgment of this Court in Anvar P.V. v.
P.K. Basheer, delivered by a three-Judge Bench. In the said judgment in para 24 it
was observed that electronic evidence by way of primary evidence was covered by
Section 62 of the Evidence Act to which procedure of Section 65-B of the Evidence
Act was not admissible. However, for the secondary evidence, procedure of Section
65-B of the Evidence Act was required to be followed and a contrary view taken in
Navjot Sandhu that secondary evidence of electronic record could be covered under
Sections 63 and 65 of the Evidence Act, was not correct. There are, however,
observations in para 14 to the effect that electronic record can be proved only as
per Section 65-B of the Evidence Act.
25. Though in view of the three-Judge Bench judgments in Tomaso Bruno and
Ram Singh [1985 Supp SCC 611], it can be safely held that electronic evidence is
admissible and provisions under Sections 65-A and 65-B of the Evidence Act are by
way of a clarification and are procedural provisions. If the electronic evidence is
authentic and relevant the same can certainly be admitted subject to the Court
being satisfied about its authenticity and procedure for its admissibility may depend
on fact situation such as whether the person producing such evidence is in a
position to furnish certificate under Section 65-B(4).
26. Sections 65-A and 65-B of the Evidence Act, 1872 cannot be held to be a
complete code on the subject. In Anvar P.V., this Court in para 24 clarified that
primary evidence of electronic record was not covered under Sections 65-A and 65-
B of the Evidence Act. Primary evidence is the document produced before the Court
and the expression “document” is defined in Section 3 of the Evidence Act to mean
any matter expressed or described upon any substance by means of letters, figures
or marks, or by more than one of those means, intended to be used, or which may
be used, for the purpose of recording that matter.
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27. The term “electronic record” is defined in Section 2(1) (t) of the Information
Technology Act, 2000 as follows:
“2.(1)(t) “electronic record” means data, record or data generated, image or
sound stored, received or sent in an electronic form or micro film or computer
generated micro fiche;”
28. The expression “data” is defined in Section 2(1)(o) of the Information
Technology Act as follows:
“2.(1)(o) “data” means a representation of information, knowledge, facts,
concepts or instructions which are being prepared or have been prepared in a
formalised manner, and is intended to be processed, is being processed or has
been processed in a computer system or computer network, and may be in any
form (including computer printouts magnetic or optical storage media, punched
cards, punched tapes) or stored internally in the memory of the computer;”
29. The applicability of procedural requirement under Section 65-B(4) of the
Evidence Act of furnishing certificate is to be applied only when such electronic
evidence is produced by a person who is in a position to produce such certificate
being in control of the said device and not of the opposite party. In a case where
electronic evidence is produced by a party who is not in possession of a device,
applicability of Sections 63 and 65 of the Evidence Act cannot be held to be
excluded. In such case, procedure under the said sections can certainly be invoked.
If this is not so permitted, it will be denial of justice to the person who is in
possession of authentic evidence/witness but on account of manner of proving, such
document is kept out of consideration by the court in the absence of certificate
under Section 65-B(4) of the Evidence Act, which party producing cannot possibly
secure. Thus, requirement of certificate under Section 65-B(4) is not always
mandatory.
30. Accordingly, we clarify the legal position on the subject on the admissibility
of the electronic evidence, especially by a party who is not in possession of device
from which the document is produced. Such party cannot be required to produce
certificate under Section 65-B(4) of the Evidence Act. The applicability of
requirement of certificate being procedural can be relaxed by the court wherever
interest of justice so justifies.”
41. It may be noted that the judgments referred to in paragraph 21 of Shafhi
Mohammed (supra) are all judgments before the year 2000, when Amendment Act 21
of 2000 first introduced Sections 65A and 65B into the Evidence Act and can,
therefore, be of no assistance on interpreting the law as to admissibility into evidence
of information contained in electronic records. Likewise, the judgment cited in
paragraph 22, namely Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC
329 is also a judgment which does not deal with Section 65B. In fact, paragraph 20 of
the said judgment states the issues before the Court as follows:
“20. However, in the present case, the dispute is not whether a cassette is a
public document but the issues are whether:
(i) the finding by the Tribunal that in the absence of any evidence to show that
the VHS cassette was obtained by the appellant from the Election
Commission, the cassette placed on record by the appellant could not be
treated as a public document is perverse; and
(ii) a mere production of an audio cassette, assuming that the same is a certified
copy issued by the Election Commission, is per se conclusive of the fact that
what is contained in the cassette is the true and correct recording of the
speech allegedly delivered by the respondent or his agent?”
42. The second issue was answered referring to judgments which did not deal with
Section 65B at all.
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43. Much succour was taken from the three Judge Bench decision in Tomaso Bruno
(supra) in paragraph 23, which, as has been stated hereinabove, does not state the
law on Section 65B correctly. Anvar P.V. (supra) was referred to in paragraph 24, but
surprisingly, in paragraph 26, the Court held that Sections 65A and 65B cannot be
held to be a complete Code on the subject, directly contrary to what was stated by a
three Judge Bench in Anvar P.V. (supra). It was then “clarified” that the requirement
of a certificate under Section 64B(4), being procedural, can be relaxed by the Court
wherever the interest of justice so justifies, and one circumstance in which the interest
of justice so justifies would be where the electronic device is produced by a party who
is not in possession of such device, as a result of which such party would not be in a
position to secure the requisite certificate.
44. Quite apart from the fact that the judgment in Shafhi Mohammad (supra)
states the law incorrectly and is in the teeth of the judgment in Anvar P.V. (supra),
following the judgment in Tomaso Bruno (supra) - which has been held to be per
incuriam hereinabove - the underlying reasoning of the difficulty of producing a
certificate by a party who is not in possession of an electronic device is also wholly
incorrect.
45. As a matter of fact, Section 165 of the Evidence Act empowers a Judge to order
production of any document or thing in order to discover or obtain proof of relevant
facts. Section 165 of the Evidence Act states as follows:
“Section 165. Judge's power to put questions or order production.— The
Judge may, in order to discover or to obtain proper proof of relevant facts, ask any
question he pleases, in any form, at any time, of any witness, or of the parties
about any fact relevant or irrelevant; and may order the production of any
document or thing; and neither the parties nor their agents shall be entitled to
make any objection to any such question or order, nor, without the leave of the
Court, to cross-examine any witness upon any answer given in reply to any such
question.
Provided that the judgment must be based upon facts declared by this Act to be
relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any
witness to answer any question or to produce any document which such witness
would be entitled to refuse to answer or produce under sections 121 to 131, both
inclusive, if the question were asked or the document were called for by the
adverse party; nor shall the Judge ask any question which it would be improper
for any other person to ask under section 148 or 149; nor shall he dispense with
primary evidence of any document, except in the cases hereinbefore excepted.
46. Likewise, under Order XVI of the Civil Procedure Code, 1908 (“CPC”) which
deals with ‘Summoning and Attendance of Witnesses’, the Court can issue the
following orders for the production of documents:
“6. Summons to produce document.—Any person may be summoned to
produce a document, without being summoned to give evidence; and any person
summoned merely to produce a document shall be deemed to have complied with
the summons if he causes such document to be produced instead of attending
personally to produce the same.
7. Power to require persons present in Court to give evidence or produce
document.—Any person present in Court may be required by the Court to give
evidence or to produce any document then and there in his possession or power.
xxx xxx xxx
10. Procedure where witness fails to comply with summons.—(1) Where a
person has been issued summons either to attend to give evidence or to produce a
document, fails to attend or to produce the document in compliance with such
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summons, the Court— (a) shall, if the certificate of the serving officer has not been
verified by the affidavit, or if service of the summons has affected by a party or his
agent, or (b) may, if the certificate of the serving officer has been so verified,
examine on oath the serving officer or the party or his agent, as the case may be,
who has effected service, or cause him to be so examined by any Court, touching
the service or non-service of the summons.
(2) Where the Court sees reason to believe that such evidence or production is
material, and that such person has, without lawful excuse, failed to attend or to
produce the document in compliance with such summons or has intentionally
avoided service, it may issue a proclamation requiring him to attend to give
evidence or to produce the document at a time and place to be named therein; and
a copy of such proclamation shall be affixed on the outer door or other conspicuous
part of the house in which he ordinarily resides.
(3) In lieu of or at the time of issuing such proclamation, or at any time
afterwards, the Court may, in its discretion, issue a warrant, either with or without
bail, for the arrest of such person, and may make an order for the attachment of his
property to such amount as it thinks fit, not exceeding the amount of the costs of
attachment and of any fine which may be imposed under rule 12:
Provided that no Court of Small Causes shall make an order for the
attachment of immovable property.”
47. Similarly, in the Code of Criminal Procedure, 1973 (“CrPC”), the Judge
conducting a criminal trial is empowered to issue the following orders for production of
documents:
“91. Summons to produce document or other thing.— (1) Whenever any
Court or any officer in charge of a police station considers that the production of any
document or other thing is necessary or desirable for the purposes of any
investigation, inquiry, trial or other proceeding under this Code by or before such
Court or officer, such Court may issue a summons, or such officer a written order, to
the person in whose possession or power such document or thing is believed to be,
requiring him to attend and produce it, or to produce it, at the time and place
stated in the summons or order.
(2) Any person required under this section merely to produce a document or
other thing shall be deemed to have complied with the requisition if he causes such
document or thing to be produced instead of attending personally to produce the
same.
(3) Nothing in this section shall be deemed— (a) to affect sections 123 and 124
of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act,
1891 (13 of 1891), or (b) to apply to a letter, postcard, telegram or other document
or any parcel or thing in the custody of the postal or telegraph authority.”
“349. Imprisonment or committal of person refusing to answer or
produce document.—If any witness or person called to produce a document or
thing before a Criminal Court refuses to answer such questions as are put to him or
to produce any document or thing in his possession or power which the Court
requires him to produce, and does not, after a reasonable opportunity has been
given to him so to do, offer any reasonable excuse for such refusal, such Court may,
for reasons to be recorded in writing, sentence him to simple imprisonment, or by
warrant under the hand of the Presiding Magistrate or Judge commit him to the
custody of an officer of the Court for any term not exceeding seven days, unless in
the meantime, such person consents to be examined and to answer, or to produce
the document or thing and in the event of his persisting in his refusal, he may be
dealt with according to the provisions of section 345 or section 346.”
48. Thus, it is clear that the major premise of Shafhi Mohammad (supra) that such
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certificate cannot be secured by persons who are not in possession of an electronic
device is wholly incorrect. An application can always be made to a Judge for
production of such a certificate from the requisite person under Section 65B(4) in
cases in which such person refuses to give it.
49. Resultantly, the judgment dated 03.04.2018 of a Division Bench of this Court
reported as (2018) 5 SCC 311, in following the law incorrectly laid down in Shafhi
Mohammed (supra), must also be, and is hereby, overruled.
50. However, a caveat must be entered here. The facts of the present case show
that despite all efforts made by the Respondents, both through the High Court and
otherwise, to get the requisite certificate under Section 65B(4) of the Evidence Act
from the authorities concerned, yet the authorities concerned wilfully refused, on some
pretext or the other, to give such certificate. In a fact-circumstance where the
requisite certificate has been applied for from the person or the authority concerned,
and the person or authority either refuses to give such certificate, or does not reply to
such demand, the party asking for such certificate can apply to the Court for its
production under the provisions aforementioned of the Evidence Act, CPC or CrPC.
Once such application is made to the Court, and the Court then orders or directs that
the requisite certificate be produced by a person to whom it sends a summons to
produce such certificate, the party asking for the certificate has done all that he can
possibly do to obtain the requisite certificate. Two Latin maxims become important at
this stage. The first is lex non cogit ad impossibilia i.e. the law does not demand the
impossible, and impotentia excusat legem i.e. when there is a disability that makes it
impossible to obey the law, the alleged disobedience of the law is excused. This was
well put by this Court in Re: Presidential Poll, (1974) 2 SCC 33 as follows:
“14. If the completion of election before the expiration of the term is not possible
because of the death of the prospective candidate it is apparent that the election
has commenced before the expiration of the term but completion before the
expiration of the term is rendered impossible by an act beyond the control of
human agency. The necessity for completing the election before the expiration of
the term is enjoined by the Constitution in public and State interest to see that the
governance of the country is not paralysed by non-compliance with the provision
that there shall be a President of India.
15. The impossibility of the completion of the election to fill the vacancy in the
office of the President before the expiration of the term of office in the case of death
of a candidate as may appear from Section 7 of the 1952 Act does not rob Article 62
(1) of its mandatory character. The maxim of law impotentia excusat legam is
intimately connected with another maxim of law lex non cogit ad impossibilia.
Impotentia excusat legam is that when there is a necessary or invincible disability
to perform the mandatory part of the law that impotentia excuses. The law does not
compel one to do that which one cannot possibly perform. “Where the law creates a
duty or charge, and the party is disabled to perform it, without any default in him,
and has no remedy over it, there the law will in general excuse him.” Therefore,
when it appears that the performance of the formalities prescribed by a statute has
been rendered impossible by circumstances over which the persons interested had
no control, like the act of God, the circumstances will be taken as a valid excuse.
Where the act of God prevents the compliance of the words of a statute, the
statutory provision is not denuded of its mandatory character because of
supervening impossibility caused by the act of God. (See Broom's Legal Maxims 10th
Edn. at pp. 162-163 and Craies on Statute Law 6th Edn. at p. 268).”
51. It is important to note that the provision in question in Re Presidential Poll
(supra) was also mandatory, which could not be satisfied owing to an act of God, in
the facts of that case. These maxims have been applied by this Court in different
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situations in other election cases - see Chandra Kishore Jha v. Mahavir Prasad, (1999)
8 SCC 266 (at paragraphs 17 and 21); Special Reference 1 of 2002 (2002) 8 SCC
237 (at paragraphs 130 and 151) and Raj Kumar Yadav v. Samir Kumar Mahaseth,
(2005) 3 SCC 601 (at paragraphs 13 and 14).
52. These Latin maxims have also been applied in several other contexts by this
Court. In Cochin State Power and Light Corporation v. State of Kerala, (1965) 3 SCR
187, a question arose as to the exercise of an option of purchasing an undertaking by
the State Electricity Board under Section 6(4) of the Indian Electricity Act, 1910. The
provision required a notice of at least 18 months before the expiry of the relevant
period to be given by such State Electricity Board to the State Government. Since this
mandatory provision was impossible of compliance, it was held that the State
Electricity Board was excused from giving such notice, as follows:
“Sub-section (1) of Section 6 expressly vests in the State Electricity Board the
option of purchase on the expiry of the relevant period specified in the license. But
the State Government claims that under sub-section (2) of Section 6 it is now
vested with the option. Now, under sub-section (2) of Section 6, the State
Government would be vested with the option only “where a State Electricity Board
has not been constituted, or if constituted, does not elect to purchase the
undertaking”. It is common case that the State Electricity Board was duly
constituted. But the State Government claims that the State Electricity Board did
not elect to purchase the undertaking. For this purpose, the State Government
relies upon the deeming provisions of sub-section (4) of Section 6, and contends
that as the Board did not send to the State Government any intimation in writing of
its intention to exercise the option as required by the sub-section, the Board must
be deemed to have elected not to purchase the undertaking. Now, the effect of sub-
section (4) read with sub-section (2) of Section 6 is that on failure of the Board to
give the notice prescribed by sub-section (4), the option vested in the Board under
sub-section (1) of Section 6 was liable to be divested. Sub-section (4) of Section 6
imposed upon the Board the duty of giving after the coming into force of Section 6
a notice in writing of its intention to exercise the option at least 18 months before
the expiry of the relevant period. Section 6 came into force on September 5, 1959,
and the relevant period expired on December 3, 1960. In the circumstances, the
giving of the requisite notice of 18 months in respect of the option of purchase on
the expiry of December 2, 1960, was impossible from the very commencement of
Section 6. The performance of this impossible duty must be excused in accordance
with the maxim, lex non cogitia ad impossibilia (the law does not compel the doing
of impossibilities), and sub-section (4) of Section 6 must be construed as not being
applicable to a case where compliance with it is impossible. We must therefore,
hold that the State Electricity Board was not required to give the notice under sub-
section (4) of Section 6 in respect of its option of purchase on the expiry of 25
years. It must follow that the Board cannot be deemed to have elected not to
purchase the undertaking under subsection (4) of Section 6. By the notice served
upon the appellant, the Board duly elected to purchase the undertaking on the
expiry of 25 years. Consequently, the State Government never became vested with
the option of purchasing the undertaking under sub-section (2) of Section 6. The
State Government must, therefore, be restrained from taking further action under
its notice, Ex. G, dated November 20, 1959.”5
53. In Raj Kumar Dubey v. Tarapada Dey, (1987) 4 SCC 398, the maxim non cogit
ad impossibilia was applied in the context of the applicability of a mandatory provision
of the Registration Act, 1908, as follows:
“6. We have to bear in mind two maxims of equity which are well settled,
namely, actus curiae neminem gravabit — An act of the Court shall prejudice no
man. In Broom's Legal Maxims, 10th Edn., 1939 at page 73 this maxim is explained
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that this maxim was founded upon justice and good sense; and afforded a safe and
certain guide for the administration of the law. The above maxim should, however,
be applied with caution. The other maxim is lex non cogit ad impossibilia (Broom's
Legal Maxims — page 162) — The law does not compel a man to do that which he
cannot possibly perform. The law itself and the administration of it, said Sir W.
Scott, with reference to an alleged infraction of the revenue laws, must yield to that
to which everything must bend, to necessity; the law, in its most positive and
peremptory injunctions, is understood to disclaim, as it does in its general
aphorisms, all intention of compelling impossibilities, and the administration of laws
must adopt that general exception in the consideration of all particular cases.
7. In this case indisputably during the period from 26-7-1978 to December 1982
there was subsisting injunction preventing the arbitrators from taking any steps.
Furthermore, as noted before the award was in the custody of the court, that is to
say, 28-1-1978 till the return of the award to the arbitrators on 24-11-1983,
arbitrators or the parties could not have presented the award for its registration
during that time. The award as we have noted before was made on 28-11-1977 and
before the expiry of the four months from 28-11-1977, the award was filed in the
court pursuant to the order of the court. It was argued that the order made by the
court directing the arbitrators to keep the award in the custody of the court was
wrong and without jurisdiction, but no arbitrator could be compelled to disobey the
order of the court and if in compliance or obedience with court of doubtful
jurisdiction, he could not take back the award from the custody of the court to take
any further steps for its registration then it cannot be said that he has failed to get
the award registered as the law required. The aforesaid two legal maxims — the law
does not compel a man to do that which he cannot possibly perform and an act of
the court shall prejudice no man would, apply with full vigour in the facts of this
case and if that is the position then the award as we have noted before was
presented before the Sub-Registrar, Arambagh on 25-11-1983 the very next one
day of getting possession of the award from the court. The Sub-Registrar pursuant
to the order of the High Court on 24-6-1985 found that the award was presented
within time as the period during which the judicial proceedings were pending that is
to say, from 28-1-1978 to 24-11-1983 should be excluded in view of the principle
laid down in Section 15 of the Limitation Act, 1963. The High Court, therefore, in
our opinion, was wrong in holding that the only period which should be excluded
was from 26-7-1978 till 20-12-1982. We are unable to accept this position. 26-7-
1978 was the date of the order of the learned Munsif directing maintenance of
status quo and 20-12-1982 was the date when the interim injunction was vacated,
but still the award was in the custody of the court and there is ample evidence as it
would appear from the narration of events hereinbefore made that the arbitrators
had tried to obtain the custody of the award which the court declined to give to
them.”
54. These maxims have also been applied to tenancy legislation - see B.P. Khemka
Pvt. Ltd. v. Birendra Kumar Bhowmick, (1987) 2 SCC 407 (at paragraph 12), and have
also been applied to relieve authorities of fulfilling their obligation to allot plots when
such plots have been found to be un-allottable, owing to the contravention of Central
statutes - see Hira Tikoo v. U.T., Chandigarh, (2004) 6 SCC 765 (at paragraphs 23 and
24).
55. On an application of the aforesaid maxims to the present case, it is clear that
though Section 65B(4) is mandatory, yet, on the facts of this case, the Respondents,
having done everything possible to obtain the necessary certificate, which was to be
given by a third-party over whom the Respondents had no control, must be relieved of
the mandatory obligation contained in the said sub-section.
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56. We may hasten to add that Section 65B does not speak of the stage at which
such certificate must be furnished to the Court. In Anvar P.V. (supra), this Court did
observe that such certificate must accompany the electronic record when the same is
produced in evidence. We may only add that this is so in cases where such certificate
could be procured by the person seeking to rely upon an electronic record. However, in
cases where either a defective certificate is given, or in cases where such certificate
has been demanded and is not given by the concerned person, the Judge conducting
the trial must summon the person/persons referred to in Section 65B(4) of the
Evidence Act, and require that such certificate be given by such person/persons. This,
the trial Judge ought to do when the electronic record is produced in evidence before
him without the requisite certificate in the circumstances aforementioned. This is, of
course, subject to discretion being exercised in civil cases in accordance with law, and
in accordance with the requirements of justice on the facts of each case. When it
comes to criminal trials, it is important to keep in mind the general principle that the
accused must be supplied all documents that the prosecution seeks to rely upon
before commencement of the trial, under the relevant sections of the CrPC.
57. In a recent judgment, a Division Bench of this Court in State of Karnataka v.
M.R. Hiremath, (2019) 7 SCC 515, after referring to Anvar P.V. (supra) held:
“16. The same view has been reiterated by a two-Judge Bench of this Court in
Union of India v. Ravindra V. Desai [(2018) 16 SCC 273]. The Court emphasised
that non-production of a certificate under Section 65-B on an earlier occasion is a
curable defect. The Court relied upon the earlier decision in Sonu v. State of
Haryana [(2017) 8 SCC 570], in which it was held:
“32. … The crucial test, as affirmed by this Court, is whether the defect could
have been cured at the stage of marking the document. Applying this test to the
present case, if an objection was taken to the CDRs being marked without a
certificate, the court could have given the prosecution an opportunity to rectify
the deficiency.”
17. Having regard to the above principle of law, the High Court erred in coming
to the conclusion that the failure to produce a certificate under Section 65-B(4) of
the Evidence Act at the stage when the charge-sheet was filed was fatal to the
prosecution. The need for production of such a certificate would arise when the
electronic record is sought to be produced in evidence at the trial. It is at that stage
that the necessity of the production of the certificate would arise.”
58. It is pertinent to recollect that the stage of admitting documentary evidence in
a criminal trial is the filing of the charge-sheet. When a criminal court summons the
accused to stand trial, copies of all documents which are entered in the charge-
sheet/final report have to be given to the accused. Section 207 of the CrPC, which
reads as follows, is mandatory6 . Therefore, the electronic evidence, i.e. the computer
output, has to be furnished at the latest before the trial begins. The reason is not far
to seek; this gives the accused a fair chance to prepare and defend the charges
levelled against him during the trial. The general principle in criminal proceedings
therefore, is to supply to the accused all documents that the prosecution seeks to rely
upon before the commencement of the trial. The requirement of such full disclosure is
an extremely valuable right and an essential feature of the right to a fair trial as it
enables the accused to prepare for the trial before its commencement.
59. In a criminal trial, it is assumed that the investigation is completed and the
prosecution has, as such, concretised its case against an accused before
commencement of the trial. It is further settled law that the prosecution ought not to
be allowed to fill up any lacunae during a trial. As recognised by this Court in Central
Bureau of Investigation v. R.S. Pai, (2002) 5 SCC 82, the only exception to this
general rule is if the prosecution had ‘mistakenly’ not filed a document, the said
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document can be allowed to be placed on record. The Court held as follows:
“7. From the aforesaid sub-sections, it is apparent that normally, the
investigating officer is required to produce all the relevant documents at the time of
submitting the charge-sheet. At the same time, as there is no specific prohibition, it
cannot be held that the additional documents cannot be produced subsequently. If
some mistake is committed in not producing the relevant documents at the time of
submitting the report or the charge-sheet, it is always open to the investigating
officer to produce the same with the permission of the court.”
60. Therefore, in terms of general procedure, the prosecution is obligated to supply
all documents upon which reliance may be placed to an accused before
commencement of the trial. Thus, the exercise of power by the courts in criminal trials
in permitting evidence to be filed at a later stage should not result in serious or
irreversible prejudice to the accused. A balancing exercise in respect of the rights of
parties has to be carried out by the court, in examining any application by the
prosecution under Sections 91 or 311 of the CrPC or Section 165 of the Evidence Act.
Depending on the facts of each case, and the Court exercising discretion after seeing
that the accused is not prejudiced by want of a fair trial, the Court may in appropriate
cases allow the prosecution to produce such certificate at a later point in time. If it is
the accused who desires to produce the requisite certificate as part of his defence, this
again will depend upon the justice of the case - discretion to be exercised by the Court
in accordance with law.
61. The High Court of Rajasthan in Paras Jain v. State of Rajasthan, 2015 SCC
OnLine Raj 8331, decided a preliminary objection that was raised on the applicability
of Section 65B to the facts of the case. The preliminary objection raised was framed as
follows:
“3. (i) Whether transcriptions of conversations and for that matter CDs of the
same filed alongwith the charge-sheet are not admissible in evidence even at this
stage of the proceedings as certificate as required u/Sec. 65-B of the Evidence Act
was not obtained at the time of procurement of said CDs from the concerned service
provider and it was not produced alongwith charge-sheet in the prescribed form and
such certificate cannot be filed subsequently.”
62. After referring to Anvar P.V. (supra), the High Court held:
“15. Although, it has been observed by Hon'ble Supreme Court that the requisite
certificate must accompany the electronic record pertaining to which a statement is
sought to be given in evidence when the same is produced in evidence, but in my
view it does not mean that it must be produced alongwith the charge-sheet and if it
is not produced alongwith the charge-sheet, doors of the Court are completely shut
and it cannot be produced subsequently in any circumstance. Section 65-B of the
Evidence Act deals with admissibility of secondary evidence in the form of electronic
record and the procedure to be followed and the requirements be fulfilled before
such an evidence can be held to be admissible in evidence and not with the stage
at which such a certificate is to be produced before the Court. One of the principal
issues arising for consideration in the above case before Hon'ble Court was the
nature and manner of admission of electronic records.
16. From the facts of the above case it is revealed that the election of the
respondent to the legislative assembly of the State of Kerala was challenged by the
appellant-Shri Anwar P.V. by way of an election petition before the High Court of
Kerala and it was dismissed vide order dated 16.11.2011 by the High Court and
that order was challenged by the appellant before Hon'ble Supreme Court. It
appears that the election was challenged on the ground of corrupt practices
committed by the respondent and in support thereof some CDs were produced
alongwith the election petition, but even during the course of trial certificate as
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required under Section 65-B of the Evidence Act was not produced and the question
of admissibility of the CDs as secondary evidence in the form of electronic record in
absence of requisite certificate was considered and it was held that such electronic
record is not admissible in evidence in absence of the certificate. It is clear from the
facts of the case that the question of stage at which such electronic record is to be
produced was not before the Hon'ble Court.
17. It is to be noted that it has been clarified by Hon'ble Court that observations
made by it are in respect of secondary evidence of electronic record with reference
to Sections 59, 65-A and 65-B of the Evidence Act and if an electronic record as
such is used as primary evidence under Section 62 of the Evidence Act, the same is
admissible in evidence without compliance with the conditions in Section 65-B of
the Evidence Act.
18. To consider the issue raised on behalf of the petitioners in a proper manner, I
pose a question to me whether an evidence and more particularly evidence in the
form of a document not produced alongwith the charge-sheet cannot be produced
subsequently in any circumstances. My answer to the question is in negative and in
my opinion such evidence can be produced subsequently also as it is well settled
legal position that the goal of a criminal trial is to discover the truth and to achieve
that goal, the best possible evidence is to be brought on record.
19. Relevant portion of sub-sec. (1) of Sec. 91 Cr.P.C. provides that whenever
any Court considers that the production of any document is necessary or desirable
for the purposes of any trial under the Code by or before such Court, such Court
may issue a summons to the person in whose possession or power such document
is believed to be, requiring him to attend and produce it or to produce it, at the
time and place stated in the summons. Thus, a wide discretion has been conferred
on the Court enabling it during the course of trial to issue summons to a person in
whose possession or power a document is believed to be requiring him to produce
before it, if the Court considers that the production of such document is necessary
or desirable for the purposes of such trial. Such power can be exercised by the
Court at any stage of the proceedings before judgment is delivered and the Court
must exercise the power if the production of such document is necessary or
desirable for the proper decision in the case. It cannot be disputed that such
summons can also be issued to the complainant/informer/victim of the case on
whose instance the FIR was registered. In my considered view when under this
provision Court has been empowered to issue summons for the producment of
document, there can be no bar for the Court to permit a document to be taken on
record if it is already before it and the Court finds that it is necessary for the proper
disposal of the case irrespective of the fact that it was not filed along with the
charge-sheet. I am of the further view that it is the duty of the Court to take all
steps necessary for the production of such a document before it.
20. As per Sec. 311 Cr.P.C., any Court may, at any stage of any trial under the
Code, summon any person as a witness, or examine any person in attendance,
though not summoned as a witness, or recall or re-examine any person already
examined; and the Court shall summon and examine or recall and re-examine any
such person if his evidence appears to it to be essential to the just decision of the
case. Under this provision also wide discretion has been conferred upon the Court to
exercise its power and paramount consideration is just decision of the case. In my
opinion under this provision it is permissible for the Court even to order production
of a document before it if it is essential for the just decision of the case.
21. As per Section 173(8) Cr.P.C. carrying out a further investigation and
collection of additional evidence even after filing of charge-sheet is a statutory right
of the police and for that prior permission of the Magistrate is not required. If
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during the course of such further investigation additional evidence, either oral or
documentary, is collected by the Police, the same can be produced before the Court
in the form of supplementary charge-sheet. The prime consideration for further
investigation and collection of additional evidence is to arrive at the truth and to do
real and substantial justice. The material collected during further investigation
cannot be rejected only because it has been filed at the stage of the trial.
22. As per Section 231 Cr.P.C., the prosecution is entitled to produce any person
as a witness even though such person is not named in the charge-sheet.
23. When legal position is that additional evidence, oral or documentary, can be
produced during the course of trial if in the opinion of the Court production of it is
essential for the proper disposal of the case, how it can be held that the certificate
as required under Section 65-B of the Evidence Act cannot be produced
subsequently in any circumstances if the same was not procured alongwith the
electronic record and not produced in the Court with the charge-sheet. In my
opinion it is only an irregularity not going to the root of the matter and is curable. It
is also pertinent to note that certificate was produced alongwith the charge-sheet
but it was not in a proper form but during the course of hearing of these petitioners,
it has been produced on the prescribed form.”
63. In Kundan Singh (supra), a Division Bench of the Delhi High Court held:
“50. Anwar P.V. (supra) partly overruled the earlier decision of the Supreme
Court on the procedure to prove electronic record(s) in Navjot Sandhu (supra),
holding that Section 65B is a specific provision relating to the admissibility of
electronic record(s) and, therefore, production of a certificate under Section 65B(4)
is mandatory. Anwar P.V. (supra) does not state or hold that the said certificate
cannot be produced in exercise of powers of the trial court under Section 311 Cr.P.C
or, at the appellate stage under Section 391 Cr.P.C. Evidence Act is a procedural
law and in view of the pronouncement in Anwar P.V. (supra) partly overruling
Navjot Sandhu (supra), the prosecution may be entitled to invoke the
aforementioned provisions, when justified and required. Of course, it is open to the
court/presiding officer at that time to ascertain and verify whether the responsible
officer could issue the said certificate and meet the requirements of Section 65B.”
64. Subject to the caveat laid down in paragraphs 50 and 54 above, the law laid
down by these two High Courts has our concurrence. So long as the hearing in a trial
is not yet over, the requisite certificate can be directed to be produced by the learned
Judge at any stage, so that information contained in electronic record form can then
be admitted, and relied upon in evidence.
65. It may also be seen that the person who gives this certificate can be anyone
out of several persons who occupy a ‘responsible official position’ in relation to the
operation of the relevant device, as also the person who may otherwise be in the
‘management of relevant activities’ spoken of in Sub-section (4) of Section 65B.
Considering that such certificate may also be given long after the electronic record has
actually been produced by the computer, Section 65B(4) makes it clear that it is
sufficient that such person gives the requisite certificate to the “best of his knowledge
and belief” (Obviously, the word “and” between knowledge and belief in Section 65B
(4) must be read as “or”, as a person cannot testify to the best of his knowledge and
belief at the same time).
66. We may reiterate, therefore, that the certificate required under Section 65B(4)
is a condition precedent to the admissibility of evidence by way of electronic record, as
correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed
(supra). Oral evidence in the place of such certificate cannot possibly suffice as
Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle
in Taylor v. Taylor, (1876) 1 Ch.D 426, which has been followed in a number of the
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judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act
clearly states that secondary evidence is admissible only if lead in the manner stated
and not otherwise. To hold otherwise would render Section 65B(4) otiose.
67. In view of the above, the decision of the Madras High Court in K. Ramajyam
(supra), which states that evidence aliunde can be given through a person who was in
-charge of a computer device in the place of the requisite certificate under Section 65B
(4) of the Evidence Act is also an incorrect statement of the law and is, accordingly,
overruled.
68. While on the subject, it is relevant to note that the Department of
Telecommunication's license conditions [i.e. under the ‘License for Provision of Unified
Access Services’ framed in 2007, as also the subsequent ‘License Agreement for
Unified License’ and the ‘License Agreement for provision of internet service’] generally
oblige internet service providers and providers of mobile telephony to preserve and
maintain electronic call records and records of logs of internet users for a limited
duration of one year7 . Therefore, if the police or other individuals (interested, or party
to any form of litigation) fail to secure those records-or secure the records but fail to
secure the certificate - within that period, the production of a post-dated certificate
(i.e. one issued after commencement of the trial) would in all probability render the
data unverifiable. This places the accused in a perilous position, as, in the event the
accused wishes to challenge the genuineness of this certificate by seeking the opinion
of the Examiner of Electronic Evidence under Section 45A of the Evidence Act, the
electronic record (i.e. the data as to call logs in the computer of the service provider)
may be missing.
69. To obviate this, general directions are issued to cellular companies and internet
service providers to maintain CDRs and other relevant records for the concerned period
(in tune with Section 39 of the Evidence Act) in a segregated and secure manner if a
particular CDR or other record is seized during investigation in the said period.
Concerned parties can then summon such records at the stage of defence evidence, or
in the event such data is required to cross-examine a particular witness. This direction
shall be applied, in criminal trials, till appropriate directions are issued under relevant
terms of the applicable licenses, or under Section 67C of the Information Technology
Act, which reads as follows:
“67C. Preservation and retention of information by intermediaries.- (1)
Intermediary shall preserve and retain such information as may be specified for
such duration and in such manner and format as the Central Government may
prescribe.
(2) any intermediary who intentionally or knowingly contravenes the provisions
of sub-section (1) shall be punished with an imprisonment for a term which may
extend to three years and also be liable to fine.”
70. It is also useful, in this context, to recollect that on 23 April 2016, the
conference of the Chief Justices of the High Courts, chaired by the Chief Justice of
India, resolved to create a uniform platform and guidelines governing the reception of
electronic evidence. The Chief Justices of Punjab and Haryana and Delhi were required
to constitute a committee to “frame Draft Rules to serve as model for adoption by High
Courts”. A five-Judge Committee was accordingly constituted on 28 July, 20188 . After
extensive deliberations, and meetings with several police, investigative and other
agencies, the Committee finalised its report in November 2018. The report suggested
comprehensive guidelines, and recommended their adoption for use in courts, across
several categories of proceedings. The report also contained Draft Rules for the
Reception, Retrieval, Authentication and Preservation of Electronic Records. In the
opinion of the Court, these Draft Rules should be examined by the concerned
authorities, with the object of giving them statutory force, to guide courts in regard to
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preservation and retrieval of electronic evidence.
71. We turn now to the facts of the case before us. In the present case, by the
impugned judgment dated 24.11.2017, Election Petition 6/2014 and Election Petition
9/2014 have been allowed and partly allowed respectively, the election of the RC
being declared to be void under Section 100 of the Representation of the People Act,
1951, inter alia, on the ground that as nomination papers at serial numbers 43 and 44
were not presented by the RC before 3.00 p.m. on 27.09.2014, such nomination
papers were improperly accepted.
72. However, by an order dated 08.12.2017, this Court admitted the Election
Appeal of the Appellant, and stayed the impugned judgment and order.
73. We have heard this matter after the five year Legislative Assembly term is over
in November 2019. This being the case, ordinarily, it would be unnecessary to decide
on the merits of the case before us, as the term of the Legislative Assembly is over.
However, having read the impugned judgment, it is clear that the learned Single
Judge was anguished by the fact that the Election Commission authorities behaved in
a partisan manner by openly favouring the Appellant. Despite the fact that the reason
given of “substantial compliance” with Section 65B(4) in the absence of the requisite
certificate being incorrect in law, yet, considering that the Respondent had done
everything in his power to obtain the requisite certificate from the appropriate
authorities, including directions from the Court to produce the requisite certificate, no
such certificate was forthcoming. The horse was directed to be taken to the water to
drink - but it refused to drink, leading to the consequence pointed out in paragraph 49
of this judgment (supra).
74. Even otherwise, apart from evidence contained in electronic form, the High
court arrived at the following conclusion:
“48. The evidence in cross examination of Smt. Mutha shows that when Labade
was sent to the passage for collecting nomination forms, she continued to accept
the nomination forms directly from intending candidates and their proposers in her
office. Her evidence shows that on 27.9.2014 the last nomination form which was
directly presented to her was form No. 38 of Anand Mhaske. The time of receipt of
this form was mentioned in the register of nomination forms as 2.55 p.m. In
respect of subsequent nomination forms from Sr. Nos. 39 to 64, the time of
acceptance is mentioned as 3.00 p.m. Smt. Mutha admits that the candidates of
nomination form Nos. 39 to 64 (form No. 64 was the last form filed) were not
present before her physically at 3.00 p.m. At the cost of repetition, it needs to be
mentioned here that form numbers of RC are 43 and 44. The oral evidence and the
record like register of nomination forms does not show that form Nos. 43 and 44
were presented to RO at 2.20 p.m. of 27.9.2014. As per the evidence of Smt. Mutha
and the record, one Arvind Chavan, a candidate having form Nos. 33, 34 and 35
was present before her between 2.15 p.m. and 2.30 p.m. In nomination form
register, there is no entry showing that any nomination form was received at 2.20
p.m. Form Nos. 36 and 37 of Sunil Khare were entered in the register at 2.40 p.m.
Thus, according to Smt. Mutha, form No. 38, which was accepted by her directly
from the candidate was tendered to her at 2.55 p.m. of 27.9.2014 and after that
she had done preliminary examination of form No. 38 and check list was given by
her to that candidate. Thus, it is not possible that form Nos. 43 and 44 were directly
handed over to Smt. Mutha by RC at 2.20 p.m. or even at 3.00 p.m. of 27.9.2014.
50. Smt. Mutha (PW 2) did not show the time as 2.20 p.m. of handing over the
check list to RC and she showed the time as 3.00 p.m., but this time was shown in
respect of all forms starting from Sr. Nos. 39 to 64. Thus, substantive evidence of
Smt. Mutha and the aforesaid record falsifies the contention of the RC made in the
pleading that he had handed over the nomination forms (form Nos. 43 and 44)
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directly to RO prior to 3.00 p.m., at 2.20 p.m.”
75. Thus, it is clear that apart from the evidence in the form of electronic record,
other evidence was also relied upon to arrive at the same conclusion. The High Court's
judgment therefore cannot be faulted.
76. Shri Adsure, however, attacked the impugned judgment when it held that the
improper acceptance of the nomination form of the RC himself being involved in the
matter, no further pleadings and particulars on whether the election is “materially
affected” were required, as it can be assumed that if such plea is accepted, the
election would be materially affected, as the election would then be set aside. He cited
a Division Bench judgment of this Court in Rajendra Kumar Meshram v. Vanshmani
Prasad Verma, (2016) 10 SCC 715, wherein an election petition was filed against the
appellant, inter alia, on the ground that as the appellant - the returned candidate -
was a Government servant, his nomination had been improperly accepted. The Court
held that the requirement of Section 100(1)(d) of the Representation of People Act,
1951, being that the election can be set aside only if such improper acceptance of the
nomination has “materially affected” the result of the election, and there being no
pleading or evidence to this effect, the election petition must fail. This Court stated:
“9. As Issues 1 and 2 extracted above, have been answered in favour of the
returned candidate and there is no cross-appeal, it is only the remaining issues that
survive for consideration. All the said issues centre round the question of improper
acceptance of the nomination form of the returned candidate. In this regard, Issue
6 which raises the question of material effect of the improper acceptance of
nomination of the returned candidate on the result of the election may be
specifically noticed.
10. Under Section 100(1)(d), an election is liable to be declared void on the
ground of improper acceptance of a nomination if such improper acceptance of the
nomination has materially affected the result of the election. This is in distinction to
what is contained in Section 100(1)(c) i.e. improper rejection of a nomination which
itself is a sufficient ground for invalidating the election without any further
requirement of proof of material effect of such rejection on the result of the election.
The above distinction must be kept in mind. Proceeding on the said basis, we find
that the High Court did not endeavour to go into the further question that would be
required to be determined even if it is assumed that the appellant returned
candidate had not filed the electoral roll or a certified copy thereof and, therefore,
had not complied with the mandatory provisions of Section 33(5) of the 1951 Act.
11. In other words, before setting aside the election on the above ground, the
High Court ought to have carried out a further exercise, namely, to find out whether
the improper acceptance of the nomination had materially affected the result of the
election. This has not been done notwithstanding Issue 6 framed which is
specifically to the above effect. The High Court having failed to determine the said
issue i.e. Issue 6, naturally, it was not empowered to declare the election of the
appellant returned candidate as void even if we are to assume that the acceptance
of the nomination of the returned candidate was improper.”
77. On the other hand, Ms. Meenakshi Arora cited a Division Bench judgment in
Mairembam Prithviraj v. Pukhrem Sharatchandra Singh, (2017) 2 SCC 487. In this
judgment, several earlier judgments of this Court were cited on the legal effect of not
pleading or proving that the election had been “materially affected” by the improper
acceptance of a nomination under Section 100(1)(d)(i) of the Representation of People
Act, 1951. After referring to Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC 45
and Jagjit Singh v. Dharam Pal Singh, 1995 Supp (1) SCC 422, this Court then
referred to a three-Judge Bench judgment in Vashist Narain Sharma v. Dev Chandra,
1955 (1) SCR 509 as under:
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“25. It was held by this Court in Vashist Narain Sharma v. Dev Chandra [(1955)
1 SCR 509] as under:
“9. The learned counsel for the respondents concedes that the burden of
proving that the improper acceptance of a nomination has materially affected the
result of the election lies upon the petitioner but he argues that the question can
arise in one of three ways:
(1) where the candidate whose nomination was improperly accepted had
secured less votes than the difference between the returned candidate and
the candidate securing the next highest number of votes,
(2) where the person referred to above secured more votes, and
(3) where the person whose nomination has been improperly accepted is the
returned candidate himself.
It is agreed that in the first case the result of the election is not materially
affected because if all the wasted votes are added to the votes of the candidate
securing the highest votes, it will make no difference to the result and the returned
candidate will retain the seat. In the other two cases it is contended that the result
is materially affected. So far as the third case is concerned it may be readily
conceded that such would be the conclusion…”
78. This Court then concluded:
“26. Mere finding that there has been an improper acceptance of the nomination
is not sufficient for a declaration that the election is void under Section 100(1) (d).
There has to be further pleading and proof that the result of the election of the
returned candidate was materially affected. But, there would be no necessity of any
proof in the event of the nomination of a returned candidate being declared as
having been improperly accepted, especially in a case where there are only two
candidates in the fray. If the returned candidate's nomination is declared to have
been improperly accepted it would mean that he could not have contested the
election and that the result of the election of the returned candidate was materially
affected need not be proved further…”
79. None of the earlier judgments of this Court referred to in Mairembam Prithviraj
(supra) have been adverted to in Rajendra Kumar Meshram (supra) cited by Shri
Adsure. In particular, the judgment of three learned Judges of this Court in Vashist
Narain Sharma (supra) has specifically held that where the person whose nomination
has been improperly accepted is the returned candidate himself, it may be readily
conceded that the conclusion has to be that the result of the election would be
“materially affected”, without there being any necessity to plead and prove the same.
The judgment in Rajendra Kumar Meshram (supra), not having referred to these
earlier judgments of a larger strength binding upon it, cannot be said to have declared
the law correctly. As a result thereof, the impugned judgment of the High Court is
right in its conclusion on this point also.
80. The reference is thus answered by stating that:
(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this
Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno
(supra), being per incuriam, does not lay down the law correctly. Also, the
judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra)
and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay
down the law correctly and are therefore overruled.
(b) The clarification referred to above is that the required certificate under Section
65B(4) is unnecessary if the original document itself is produced. This can be
done by the owner of a laptop computer, computer tablet or even a mobile
phone, by stepping into the witness box and proving that the concerned device,
on which the original information is first stored, is owned and/or operated by
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him. In cases where the “computer” happens to be a part of a “computer

system” or “computer network” and it becomes impossible to physically bring
such system or network to the Court, then the only means of providing
information contained in such electronic record can be in accordance with Section
65B(1), together with the requisite certificate under Section 65B(4). The last
sentence in Anvar P.V. (supra) which reads as “…if an electronic record as such is
used as primary evidence under Section 62 of the Evidence Act…” is thus
clarified; it is to be read without the words “under Section 62 of the Evidence
Act…”, With this clarification, the law stated in paragraph 24 of Anvar P.V.
(supra) does not need to be revisited.
(c) The general directions issued in paragraph 62 (supra) shall hereafter be followed
by courts that deal with electronic evidence, to ensure their preservation, and
production of certificate at the appropriate stage. These directions shall apply in
all proceedings, till rules and directions under Section 67C of the Information
Technology Act and data retention conditions are formulated for compliance by
telecom and internet service providers.
(d) Appropriate rules and directions should be framed in exercise of the Information
Technology Act, by exercising powers such as in Section 67C, and also framing
suitable rules for the retention of data involved in trial of offences, their
segregation, rules of chain of custody, stamping and record maintenance, for the
entire duration of trials and appeals, and also in regard to preservation of the
meta data to avoid corruption. Likewise, appropriate rules for preservation,
retrieval and production of electronic record, should be framed as indicated
earlier, after considering the report of the Committee constituted by the Chief
Justice's Conference in April, 2016.
81. These appeals are dismissed with costs of INR One Lakh each to be paid by Shri
Arjun Panditrao Khotkar (i.e. the Appellant in C.A. Nos. 20825-20826 of 2017) to both
Shri Kailash Kushanrao Gorantyal and Shri Vijay Chaudhary.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 20825-20826 OF 2017
Arjun Panditrao Khotkar … Appellant
Versus
Kailash Kushanrao Gorantyal and Others … Respondents
WITH
CIVIL APPEAL NO. 2407 OF 2018
CIVIL APPEAL NO. 3696 OF 2018
JUDGMENT
V. RAMASUBRAMANIAN, J.:— While I am entirely in agreement with the opinion
penned by R.F. Nariman, J. I also wish to add a few lines about (i) the reasons for the
acrimony behind Section 65B of the Indian Evidence Act, 1872 (hereinafter “Evidence
Act”) (ii) how even with the existing rules of procedure, the courts fared well, without
any legislative interference, while dealing with evidence in analogue form, and (iii)
how after machines in analogue form gave way to machines in electronic form, certain
jurisdictions of the world changed their legal landscape, over a period of time, by
suitably amending the law, to avoid confusions and conflicts.
I. Reasons for the acrimony behind Section 65B
83. Documentary evidence, in contrast to oral evidence, is required to pass through
certain check posts, such as (i) admissibility (ii) relevancy and (iii) proof, before it is
allowed entry into the sanctum. Many times, it is difficult to identify which of these
check posts is required to be passed first, which to be passed next and which to be
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passed later. Sometimes, at least in practice, the sequence in which evidence has to
go through these three check posts, changes. Generally and theoretically, admissibility
depends on relevancy. Under Section 136 of the Evidence Act, relevancy must be
established before admissibility can be dealt with. Therefore if we go by Section 136, a
party should first show relevancy, making it the first check post and admissibility the
second one. But some documents, such as those indicated in Section 68 of the
Evidence Act, which pass the first check post of relevancy and the second check post
of admissibility may be of no value unless the attesting witness is examined. Proof of
execution of such documents, in a manner established by law, thus constitutes the
third check post. Here again, proof of execution stands on a different footing than
proof of contents.
84. It must also be noted that whatever is relevant may not always be admissible,
if the law imposes certain conditions. For instance, a document, whose contents are
relevant, may not be admissible, if it is a document requiring stamping and
registration, but had not been duly stamped and registered. In other words, if
admissibility is the cart, relevancy is the horse, under Section 136. But certain
provisions of law place the cart before the horse and Section 65B appears to be one of
them.
85. Section 136 which confers a discretion upon the Judge to decide as to the
admissibility of evidence reads as follows:
136. Judge to decide as to admissibility of evidence. --
When either party proposes to give evidence of any fact, the Judge may ask
the party proposing to give the evidence in what manner the alleged fact, if
proved, would be relevant; and the Judge shall admit the evidence if he thinks
that the fact, if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only
upon proof of some other fact, such last-mentioned fact must be proved before
evidence is given of the fact first-mentioned, unless the party undertakes to give
proof of such fact, and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact being
first proved, the Judge may, in his discretion, either permit evidence of the first
fact to be given before the second fact is proved, or require evidence to be given
of the second fact before evidence is given of the first fact.
86. There are three parts to Section 136. The first part deals with the discretion of
the Judge to admit the evidence, if he thinks that the fact sought to be proved is
relevant. The second part of Section 136 states that if the fact proposed to be proved
is one, of which evidence is admissible only upon proof of some other fact, such last
mentioned fact must be proved before evidence is given of the fact first mentioned.
But this rule is subject to a small concession, namely, that if the party undertakes
to produce proof of the last mentioned fact later and the Court is satisfied
about such undertaking, the Court may proceed to admit evidence of the first
mentioned fact. The third part of Section 136 deals with the relevancy of one alleged
fact, which depends upon another alleged fact being first proved. The third part of
Section 136 has no relevance for our present purpose.
87. Illustration (b) under Section 136 provides an easy example of the second part
of Section 136. Illustration (b) reads as follows:
(b) It is proposed to prove, by a copy, the contents of a document said to be
lost.
The fact that the original is lost must be proved by the person proposing to
produce the copy, before the copy is produced.
88. What is laid down in Section 65B as a precondition for the admission of an
electronic record, resembles what is provided in the second part of Section 136. For
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example, if a fact is sought to be proved through the contents of an electronic record

(or information contained in an electronic record), the Judge is first required to see if it
is relevant, if the first part of Section 136 is taken to be applicable.
89. But Section 65B makes the admissibility of the information contained in the
electronic record subject to certain conditions, including certification. The certification
is for the purpose of proving that the information which constitutes the computer
output was produced by a computer which was used regularly to store or process
information and that the information so derived was regularly fed into the computer in
the ordinary course of the said activities.
90. In other words, if we go by the requirements of Section 136, the computer
output becomes admissible if the fact sought to be proved is relevant. But such a fact
is admissible only upon proof of some other fact namely, that it was extracted from a
computer used regularly etc. In simple terms, what is contained in the computer
output can be equated to the first mentioned fact and the requirement of a
certification can be equated to the last mentioned fact, referred to in the
second part of Section 136 read with Illustration (b) thereunder.
91. But Section 65B(1) starts with a non-obstante clause excluding the application
of the other provisions and it makes the certification, a precondition for admissibility.
While doing so, it does not talk about relevancy. In a way, Sections 65A and 65B, if
read together, mix-up both proof and admissibility, but not talk about relevancy.
Section 65A refers to the procedure prescribed in Section 65B, for the purpose of
proving the contents of electronic records, but Section 65B speaks entirely about
the preconditions for admissibility. As a result, Section 65B places admissibility as
the first or the outermost check post, capable of turning away even at the border, any
electronic evidence, without any enquiry, if the conditions stipulated therein are not
fulfilled.
92. The placement by Section 65B, of admissibility as the first or the border check
post, coupled with the fact that a number of ‘computer systems’ (as defined in Section
2(l) of the Information Technology Act, 2000) owned by different individuals, may get
involved in the production of an electronic record, with the ‘originator’ (as defined in
Section 2(za) of the Information Technology Act, 2000) being different from the
recipients or the sharers, has created lot of acrimony behind Section 65B, which is
evident from the judicial opinion swinging like a pendulum.
II. How the courts dealt with evidence in analogue form without legislative
interference and the shift
93. It is a matter of fact and record that courts all over the world were quick to
adapt themselves to evidence in analogue form, within the framework of archaic,
centuries old rules of evidence. It was not as if evidence in analogue form was
incapable of being manipulated. But the courts managed the show well by applying
time tested rules for sifting the actual from the manipulated.
94. It is no doubt true that the felicity with which courts adapted themselves to
appreciating evidence in analogue form was primarily due to the fact that in analogue
technology, one is able to see and/or perceive something that is happening. In
analogue technology, a wave is recorded or used in its original form. When someone
speaks or sings, a signal is taken directly by the microphone and laid onto a tape, if
we take the example of an analogue tape recorder. Both, the wave from the
microphone and the wave on the tape, are analogue and the wave on the tape can be
read, amplified and sent to a speaker to produce the sound. In digital technology, the
analogue wave is sampled at some interval and then turned into numbers that are
stored in a digital device. Therefore, what are stored, are in terms of numbers and
they are, in turn, converted into voltage waves to produce what was stored.
95. The difference between something in analogue form and the same thing in
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digital form and the reason why digital format throws more challenges, was presented
pithily in an article titled ‘Electronic evidence and the meaning of “original”’,9 by
Stephen Mason (Barrister and recognised authority on electronic signatures and
electronic evidence). Taking the example of a photograph in both types of form, the
learned author says the following:
For instance, a photograph taken with an analogue camera (that is, a camera
with a film) can only remain a single object. It cannot be merged into other
photographs, and split off again. It remains a physical object. A photograph taken
with a digital camera differs markedly. The digital object, made up of a series of
zeros and the number one, can be, and frequently is, manipulated and altered
(especially in fashion magazines and for advertisements). Things can be taken out
and put in to the image, in the same way the water droplets can merge and form a
single, larger droplet. The new, manipulated digital image can also be divided back
into its constituent parts.
Herein lies the interesting point: when three droplets of water fuse and then
separate into three droplets, it is to be questioned whether the three droplets that
merge from the bigger droplet were the identical droplets that existed before they
merged. In the same way, consider a digital object that has been manipulated and
added to, and the process is then reversed. The original object that was used
remains (unless it was never saved independently, and the changes made to the
image were saved in the original file), but another object, with the identical image
(or near identical, depending on the system software and application software) now
exists. Conceptually, it is possible to argue that the two digital images are different:
one is the original, the other a copy of the original that was manipulated and
returned to its original state (whatever “original” means). But both images are
identical, apart from some additional meta data that might, or might not be
conclusive. However, it is apparent that the images, if viewed together, are identical
- will be identical, and the viewer will not be able to determine which is the original,
and which image was manipulated. In this respect, the digital images are no
different from the droplets of rain that fall, merge, then divide: there is no telling
whether the droplets that split are identical to the droplets that came together to
form the larger droplet.
96. That courts did not have a problem with the evidence in analogue form is
established by several judicial precedents, in U.K., which were also followed by our
courts. A device used to clandestinely record a conversation between two individuals
was allowed in Harry Parker v. Mason10 in proving fraud on the part of the plaintiff.
While Harry Parker was a civil proceeding, the principle laid down therein found
acceptance in a criminal trial in R. v. Burr and Sullivan.11 The High Court of Judiciary in
Scotland admitted in evidence, the tape record of a conversation between the
complainant and a black mailer, in Hopes and Lavery v. H.M. Advocate.12 A
conversation recorded in police cell overheard without any deception, beyond setting
up a tape recorder without warning, was admitted in evidence in R. v. Mills.13
97. Then came R. v. Maqsud Ali14 where Marshall J. drew an analogy between tape-
recordings and photographs and held that just as evidence of things seen through
telescopes or binoculars have been admitted, despite the fact that those
things could not be picked up by the naked eye, the devices used for recording
conversations could also be admitted, provided the accuracy of the recording
can be proved and the voices recorded properly identified.
98. Following the above precedents, this Court also held in S. Pratap Singh v. State
of Punjab,15 Yusaffalli Esmail Nagree v. State of Maharashtra,16 N. Sri Rama Reddy v.
V.V. Giri,17 R.M. Malkani v. State of Maharashtra,18 Ziyauddin Burhanuddin Bukhari v.
Brijmohan Ramdass Mehra,19 Ram Singh v. Col. Ram Singh,20 Tukaram S. Dighole v.
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Manikrao Shivaji Kokate,21 that tape records of conversations and speeches are
admissible in evidence under the Indian Evidence Act, subject to certain conditions. In
Ziyauddin Burhanuddin Bukhari and Tukaram S. Dighole, this Court further held that
tape records constitute “document” within the meaning of the expression under
Section 3 of the Evidence Act. Thus, without looking up to the law makers to come up
with necessary amendments from time to time, the courts themselves developed
certain rules, over a period of time, to test the authenticity of these documents in
analogue form and these rules have in fact, worked well.
99. There was also an important question that bothered the courts while dealing
with evidence in analogue form. It was as to whether such evidence was direct or
hearsay. In The Statute of Liberty, Sapporo Maru M/S (Owners) v. Steam Tanker
Statute of Liberty (Owners),22 the film recording of a radar set of echoes of ships
within its range was held to be real evidence. The court opined that there was no
distinction between a photographer operating a camera manually and the observations
of a barometer operator or its equivalent operation by a recording mechanism. The
Judge rejected the contention that the evidence was hearsay.
100. But when it comes to a computer output, one of the earliest of cases where
the Court of Appeal had to deal with evidence in the form of a printout from a
computer was in R. v. Pettigrew.23 In that case, the printout from a computer operated
by an employee of the Bank of England was held to be hearsay. But the academic
opinion about the correctness of the decision was sharply divided. While Professor
Smith24 considered the evidence in this case as direct and not hearsay, Professor
Tapper25 took the view that the printout was partly hearsay and partly not. Professor
Seng26 thought that both views were plausible.
101. But the underlying theory on the basis of which academicians critiqued the
above judgment is that wherever the production of the output was made possible
without human intervention, the evidence should be taken as direct. This is how the
position was explained in Castle v. Cross,27 in which the printout from the Intoximeter
was held to be direct and not hearsay, on the ground that the breath alcohol value in
the printout comprised information produced by the Intoximeter without the data
being processed through a human brain.
102. In R v. Robson Mitchell and Richards,28 a printout of telephone calls made on a
mobile telephone was taken as evidence of the calls made and received in association
with the number. The Court held “where a machine observes a fact and records it,
that record states a fact. It is evidence of what the machine recorded and this
was printed out. The record was not the fact but the evidence of the fact”.
103. But the facility of operating in anonymity in the cyber space, has made
electronic records more prone to manipulation and consequently to a greater degree of
suspicion. Therefore, law makers interfered, sometimes making things easy for courts
and sometimes creating a lot of confusion. But over a period of time, certain
jurisdictions have come up with reasonably good solutions. Let us now take a look at
them.
III. Legislative developments in U.S.A., U.K. and Canada on the admissibility
of electronic records
POSITION IN USA
104. The Federal Rules of Evidence (FRE) of the United States of America as
amended with effect from 01.12.2017 recognise the availability of more than one
option to a person seeking to produce an electronic record. Under the amended rules,
a person can follow either the traditional route under Rule 901 or the route of self-
authentication under Rule 902 whereunder a certificate of authenticity will elevate its
status. Rules 901 and 902 of FRE read as follows:
Rule 901. Authenticating or Identifying Evidence
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(a) In General. To satisfy the requirement of authenticating or identifying an
item of evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.
(b) Examples. The following are examples only —not a complete list—of evidence
that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it
is claimed to be.
(2) Non expert Opinion About Handwriting. A non expert's opinion that
handwriting is genuine, based on a familiarity with it that was not acquired
for the current litigation.
(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with
an authenticated specimen by an expert witness or the trier of fact.
(4) Distinctive Characteristics and the Like. The appearance, contents,
substance, internal patterns, or other distinctive characteristics of the item,
taken together with all the circumstances.
(5) Opinion About a Voice. An opinion identifying a person's voice—whether
heard firsthand or through mechanical or electronic transmission or
recording—based on hearing the voice at any time under circumstances
that connect it with the alleged speaker.
(6) Evidence About a Telephone Conversation. For a telephone conversation,
evidence that a call was made to the number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show
that the person answering was the one called; or
(B) a particular business, if the call was made to a business and the call
related to business reasonably transacted over the telephone.
(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by
law; or
(B) a purported public record or statement is from the office where items of
this kind are kept.
(8) Evidence About Ancient Documents or Data Compilations. For a document
or data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 20 years old when offered.
(9) Evidence About a Process or System. Evidence describing a process or
system and showing that it produces an accurate result.
(10) Methods Provided by a Statute or Rule. Any method of authentication or
identification allowed by a federal statute or a rule prescribed by the
Supreme Court.
Rule 902. Evidence That Is Self-Authenticating
The following items of evidence are self-authenticating; they require no extrinsic
evidence of authenticity in order to be admitted:
(1) Domestic Public Documents That Are Sealed and Signed. A document that
bears:
(A) a seal purporting to be that of the United States; any state, district,
commonwealth, territory, or insular possession of the United States; the
former Panama Canal Zone; the Trust Territory of the Pacific Islands; a
political subdivision of any of these entities; or a department, agency, or
officer of any entity named above; and
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(B) a signature purporting to be an execution or attestation.
(2) Domestic Public Documents That Are Not Sealed but Are Signed and
Certified. A document that bears no seal if:
(A) it bears the signature of an officer or employee of an entity named in Rule
902(1)(A); and
(B) another public officer who has a seal and official duties within that same
entity certifies under seal—or its equivalent—that the signer has the official
capacity and that the signature is genuine.
(3) Foreign Public Documents. A document that purports to be signed or attested
by a person who is authorized by a foreign country's law to do so. The
document must be accompanied by a final certification that certifies the
genuineness of the signature and official position of the signer or attester—or
of any foreign official whose certificate of genuineness relates to the signature
or attestation or is in a chain of certificates of genuineness relating to the
signature or attestation. The certification may be made by a secretary of a
United States embassy or legation; by a consul general, vice consul, or
consular agent of the United States; or by a diplomatic or consular official of
the foreign country assigned or accredited to the United States. If all parties
have been given a reasonable opportunity to investigate the document's
authenticity and accuracy, the court may, for good cause, either:
(A) order that it be treated as presumptively authentic without final
certification; or
(B) allow it to be evidenced by an attested summary with or without final
certification.
(4) Certified Copies of Public Records. A copy of an official record—or a copy of a
document that was recorded or filed in a public office as authorized by law—if
the copy is certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute,
or a rule prescribed by the Supreme Court.
(5) Official Publications. A book, pamphlet, or other publication purporting to be
issued by a public authority.
(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or
periodical.
(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting
to have been affixed in the course of business and indicating origin,
ownership, or control.
(8) Acknowledged Documents. A document accompanied by a certificate of
acknowledgment that is lawfully executed by a notary public or another officer
who is authorized to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, a signature on
it, and related documents, to the extent allowed by general commercial law.
(10) Presumptions Under a Federal Statute. A signature, document, or anything
else that a federal statute declares to be presumptively or prima facie genuine
or authentic.
(11) Certified Domestic Records of a Regularly Conducted Activity. The original or
a copy of a domestic record that meets the requirements of Rule 803(6)(A)-
(C), as shown by a certification of the custodian or another qualified person
that complies with a federal statute or a rule prescribed by the Supreme
Court. Before the trial or hearing, the proponent must give an adverse party
reasonable written notice of the intent to offer the record—and must make the
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record and certification available for inspection —so that the party has a fair
opportunity to challenge them.
(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case,
the original or a copy of a foreign record that meets the requirements of Rule
902(11), modified as follows: the certification, rather than complying with a
federal statute or Supreme Court rule, must be signed in a manner that, if
falsely made, would subject the maker to a criminal penalty in the country
where the certification is signed. The proponent must also meet the notice
requirements of Rule 902(11).
(13) Certified Records Generated by an Electronic Process or System. A record
generated by an electronic process or system that produces an accurate
result, as shown by a certification of a qualified person that complies with the
certification requirements of Rule 902(11) or (12). The proponent must also
meet the notice requirements of Rule 902(11).
(14) Certified Data Copied from an Electronic Device, Storage Medium, or File.
Data copied from an electronic device, storage medium, or file, if
authenticated by a process of digital identification, as shown by a certification
of a qualified person that complies with the certification requirements of Rule
902(11) or (12). The proponent also must meet the notice requirements of
Rule 902(11).
105. An important decision in the American jurisprudence on this issue was
delivered by Chief Magistrate Judge of District of Maryland in Lorraine v. Markel
American Insurance Co.29 In this case, Paul Grimm, J. while dealing with a challenge
to an arbitrator's decision in an insurance dispute, dealt with the issue whether emails
discussing the insurance policy in question, were admissible as evidence. The Court,
while extending the applicability of Rules 901 and 902 of FRE to electronic evidence,
laid down a broad test for admissibility of electronically stored information.30 This
decision was rendered in 2007 and the FRE were amended in 2017.
106. Sub-rules (13) and (14) were incorporated in Rule 902 under the amendment
of the year 2017. Until then, a person seeking to produce electronic records had to fall
back mostly upon Rule 901 (except in few cases covered by sub-rules (11) and (12) of
Rule 902). It means that the benefit of self-authentication was not available until then
[until the advent of sub-rules (13) and (14), except in cases covered by sub-rules
(11) and (12)]. Nevertheless, the introduction of sub-rules (13) and (14) in Rule 902
did not completely exclude the application of the general provisions of Rule 901.
107. Rule 901 applies to all evidence across the board. It is a general provision. But
Rule 902 is a special provision dealing with evidence that is self-authenticating.
Records generated by an electronic process or system and data copied from an
electronic device, storage medium or file, are included in sub-rules (13) and (14) of
Rule 902 of the Federal Rules of Evidence.
108. But FRE 902 does not exclude the application of FRE 901. It is only when a
party seeks to invoke the benefit of self-authentication that Rule 902 applies. If a
party chooses not to claim the benefit of self-authentication, he is free to come under
Rule 901, even if the evidence sought to be adduced is of an electronically stored
information (ESI).
109. In an article titled ‘E-Discovery: Authenticating Common Types of ESI Chart’,
authored by Paul W. Grimm (the Judge who delivered the verdict in Lorraine) and co-
authored by Gregory P. Joseph and published by Thomson Reuters (2017), the learned
authors have given a snapshot of the different methods of authentication of various
types of ESI (electronically stored information). In a subsequent article (2018) titled
‘Admissibility of Electronic Evidence’ published under the caption ‘Grimm-Brady
Chart’ (referring to Paul W. Grimm and Kevin F. Brady) on the website
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“complexdiscovery.com”, a condensed chart is provided which throws light on the
different methods of authentication of ESI. The chart is reproduced in the form of a
table, with particular reference to the relevant sub-rules of Rules 901 and 902 of the
Federal Rules of Evidence as follows:
S. No. Type of ESI Potential Authentication
Methods
1. Email, Text Messages, and ■ Witness with personal
Instant Messages knowledge (901(b)(1))
■ Expert testimony or
comparison with
authenticated examples
(901(b)(3))
■ Distinctive characteristics
including circumstantial
evidence (901(b)(4))
■ System or process capable
of proving reliable and
dependable result (901(b)
(9))
■ Trade inscriptions (902
(7))
■ Certified copies of
business record (902(11))
■ Certified records
generated by an electronic
process or system (902
(13))
■ Certified data copied from
an electronic device, storage
medium, or file (902(14))
2. Chat Room Postings, Blogs, ■ Witness with personal
Wikis, and Other Social knowledge (901(b)(1))
Media Conversations ■ Expert testimony or
comparison with
(901(b)(3))
(9))
■ Official publications (902
(5))
■ Newspapers and
periodicals (902(6))
(13))
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3. Social Media Sites ■ Witness with personal
(Facebook, LinkedIn, knowledge (901(b)(1))
Twitter, Instagram, and ■ Expert testimony or
Snapchat) comparison with
(901(b)(3))
■ Public records (901(b)(7))
(9))
(5))
(13))
4. Digitally Stored Data and ■ Witness with personal
Internet of Things knowledge (901(b)(1))
■ Expert testimony or
comparison with
(901(b)(3))
(9))
(13))
5. Computer Processes, ■ Witness with personal
Animations, Virtual Reality, knowledge (901(b)(1))
and Simulations ■ Expert testimony or
comparison with
(901(b)(3))
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(9))
(13))
6. Digital Photographs ■ Witness with personal
knowledge (901(b)(1))
of providing reliable and
(9))
(5))
(13))
110. It is interesting to note that while the Indian Evidence Act is of the year 1872,
the Federal Rules of Evidence were adopted by the order of the Supreme Court of the
United States exactly 100 years later, in 1972 and they were enacted with
amendments made by the Congress to take effect on 01.07.1975. Yet, the Rules were
found inadequate to deal with emerging situations and hence, several amendments
were made, including the one made in 2017 that incorporated specific provisions
relating to electronic records under sub-rules (13) and (14) of FRE 902. After this
amendment, a lot of options have been made available to litigants seeking to rely
upon electronically stored information, one among them being the route provided by
sub-rules (13) and (14) of FRE 902. This development of law in the US demonstrates
that, unlike in India, law has kept pace with technology to a great extent.
POSITION IN UK
111. As pointed out in the main opinion, Section 65B, in its present form, is a poor
reproduction of Section 5 of the UK Civil Evidence Act, 1968. The language employed
in sub-sections (2), (3), (4) and (5) of Section 65B is almost in pari materia (with
minor differences) with sub-sections (2) to (5) of Section 5 of the UK Civil Evidence
Act, 1968. However, sub-section (1) of Section 65B is substantially different from sub-
section (1) of Section 5 of the UK Civil Evidence Act, 1968. But it also contains certain
additional words in sub-section (1) namely “without further proof or production of the
original”. For easy comparison and appreciation, subsection (1) of Section 65B of the
Indian Evidence Act and sub-section (1) of Section 5 of UK Civil Evidence Act, 1968
are presented in a tabular form as follows:
Section 65B(1), Indian Evidence Act, Section 5(1), Civil Evidence Act, 1968
1872 [UK]
Notwithstanding anything contained in In any civil proceedings a statement
this Act, any information contained in an contained in a document produced by a
electronic record which is printed on a computer shall, subject to rules of court,
paper, stored, recorded or copied in be admissible as evidence of any fact
optical or magnetic media produced by a stated therein of which direct oral
computer (hereinafter referred to as the evidence would be admissible, if it is
computer output) shall be deemed to be shown that the conditions mentioned in
also a document, if the conditions subsection (2) below are satisfied in
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mentioned in this section are satisfied in relation to the statement and computer
relation to the information and computer in question.
in question and shall be admissible in
any proceedings, without further proof or
production of the original, as evidence of
any contents of the original or of any fact
stated therein of which direct evidence
would be admissible.
112. But the abovementioned Section 5 of the U.K. Act of 1968 was repealed by
the Civil Evidence Act, 1995. Section 15(2) of the Civil Evidence Act, 1995 repealed
the enactments specified in Schedule II therein. Under Schedule II of the 1995 Act,
Part I of the 1968 Act containing Sections 1-10 were repealed. The effect is that when
Section 65B was incorporated in the Indian Evidence Act, by Act 21 of 2000, by
copying subsections (2) to (5) of Section 5 of the UK Civil Evidence Act, 1968, Section
5 itself was not there in the U.K. statute book, as a result of its repeal under the 1995
Act.
113. The repeal of Section 5 under the 1995 Act was a sequel to the
recommendations made by the Law Commission in September 1993. Part III of the
Law Commission's report titled ‘The Hearsay Rule in Civil Proceedings’ noted the
problems with the 1968 Act, one of which concerned computer records. Paragraphs
3.14 to 3.21 in Part III of the Law Commission's report read as follows:
Computer records
3.14 A fundamental mistrust and fear of the potential for error or mechanical
failure can be detected in the elaborate precautions governing computer records in
section 5 of the 1968 Act. The Law Reform Committee had not recommended
special provisions for such records, and section 5 would appear to have
been something of an afterthought with its many safeguards inserted in
order to gain acceptance of what was then a novel form of evidence. Twenty-
five years later, technology has developed to an extent where computers and
computer-generated documents are relied on in every area of business and have
long been accepted in banking and other important record-keeping fields. The
conditions have been widely criticised, and it has been said that they are
aimed at operations based on the type of mainframe operations common in
the mid 1960s, which were primarily intended to process in batches
thousands of similar transactions on a daily basis.
3.15 So far as the statutory conditions are concerned, there is a heavy reliance
on the need to prove that the document has been produced in the normal course of
business and in an uninterrupted course of activity. It is at least questionable
whether these requirements provide any real safeguards in relation to the
reliability of the hardware or software concerned. In addition, they are capable
of operating to exclude wide categories of documents, particularly those which are
produced as the result of an original or a “one off” piece of work. Furthermore, they
provide no protection against the inaccurate inputting of data.
3.16 We have already referred to the overlap between sections 4 and 5. If
compliance with section 5 is a prerequisite, then computer-generated documents
which pass the conditions setout in section 5(2) “shall” be admissible,
notwithstanding the fact that they originated from a chain of human sources and
that it has not been established that the persons in the chain acted under a duty. In
other words, the record provisions of section 4, which exist to ensure the reliability
of the core information, are capable of being disapplied. In the context of our
proposed reforms, we do not consider that this apparent discrepancy is of any
significance, save that it illustrates the fact that section 5 was something of an
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afterthought.
3.17 Computer-generated evidence falls into two categories. First, there
is the situation envisaged by the 1968 Act, where the computer is used to
file and store information provided to it by human beings. Second, there is
the case where the record has itself been produced by the computer,
sometimes entirely by itself but possibly with the involvement of some other
machine. Examples of this situation are computers which are fed information by
monitoring devices. A particular example is automatic stock control systems, which
are now in common use and which allow for purchase orders to be automatically
produced. Under such systems evidence of contract formation will lie solely in the
electronic messages automatically generated by the seller's and buyer's computers.
It is easy to see how uncertainty as to how the courts may deal with the
proof and enforceability of such contracts is likely to stifle the full
development and effective use of such technology. Furthermore, uncertainty
may deter parties from agreeing that contracts made in this way are to be governed
by English law and litigated in the English courts.
3.18 It is interesting to compare the technical manner in which the admissibility
of computer-generated records has developed, compared with cases concerning
other forms of sophisticated technologically produced evidence, for example radar
records (See Sapporo Maru (Owners) v. Statue of Liberty (Owners) [1968] 1 W.L.R.
739). In the Statue of Liberty case radar records, produced without human
involvement and reproduced in photographic form, were held to be admissible to
establish how a collision of two ships had occurred. It was held that this was “real”
evidence, no different in kind from a monitored tape recording of a conversation.
Furthermore, in these cases, no extra tests of reliability need be met and the
common law rebuttable presumption is applied, that the machine was in order at
the material time. The same presumption has been applied to intoximeter printouts
(Castle v. Cross [1984] 1 W.L.R. 1372).
3.19 There are a number of cases which establish the way in which courts have
sought to distinguish between types of computer-generated evidence, by finding in
appropriate cases that the special procedures are inapplicable because the evidence
is original or direct evidence. As might be expected, case law on computer-
generated evidence is more likely to be generated by criminal cases of theft or
fraud, where the incidence of such evidence is high and the issue of admissibility is
more likely to be crucial to the outcome and hence less liable to be agreed. For
example, even in the first category of cases, where human involvement exists, a
computer-generated document may not be considered to be hearsay if the
computer has been used as a mere tool, to produce calculations from data fed to it
by humans, no matter how complex the calculations, or how difficult it may be for
humans to reproduce its work, provided the computer was not “contributing its own
knowledge” (R v. Wood (1983) 76 Cr. App. R. 23).
3.20 There was no disagreement with the view that the provisions
relating to computer records were outdated and that there was no good
reason for distinguishing between different forms of record keeping or
maintaining a different regime for the admission of computer-generated
documents. This is the position in Scotland under the 1988 Act. Furthermore, we
were informed of fears that uncertainty over the treatment of such records in civil
litigation in the United Kingdom was a significant hindrance to commerce and
needed reform.
3.21 Consultees considered that the real issue for concern was
authenticity that this was a matter which was best dealt with by a vigilant
attitude that concentrated upon the weight to be attached to the evidence,
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in the circumstances of the individual case, rather than by reformulating
complex and inflexible conditions as to admissibility.
(emphasis supplied)
114. In Part IV of the 1993 Report, titled ‘Recommendations for Reform’, Paragraph
4.43 dealt with the recommendations of the Law Commission in relation to computer
records. Paragraph 4.43 of the Law Commission's report along with Recommendation
Nos. 13, 14 and 15 are reproduced for easy reference:
(b) Computerised records
4.43 In the light of the criticisms of the present provisions and the response on
consultation, we have decided to recommend that no special provisions be made in
respect of computerised records. This is the position in Scotland under the 1988 Act
and reflects the overwhelming view of commentators, practitioners and others. That
is not to say that we do not recognise that, as familiarity with and confidence in the
inherent reliability of computers has grown, so has concern over the potential for
misuse, through the capacity to hack, corrupt, or alter information, in manner which
is undetectable. We do not underestimate these dangers. However the current
provisions of section 5 do not afford any protection and it is not possible to legislate
protectively. Nothing in our proposals will either encourage abuse, or prevent a
proper challenge to the admissibility of computerised records, where abuse is
suspected. Security and authentication are problems that experts in the field are
constantly addressing and it is a fast evolving area. The responses from experts in
this field, such as the C.B.I., stressed that, whilst computer-generated information
should be treated similarly to other records, such evidence should be weighed
according to its reliability, with parties being encouraged to provide information as
to the security of their systems. We have proposed a wide definition for the word
“document”. This will cover documents in any form and in particular will be wide
enough to cover computer-generated information.
We therefore recommend that:
13. Documents, including those stored by computer, which form part
of the records of a business or public authority should be admissible as
hearsay evidence under clause 1 of our draft Bill and the ordinary notice
and weighing provisions should apply.
14. The current provisions governing the manner of proof of business
records should be replaced by a simpler regime which allows, unless the
court otherwise directs, for a document to be taken to form part of the
records of a business or public authority, if it is certified as such, and
received in evidence without being spoken to in court. No special
provisions should be made in respect of the manner of proof of
computerized records.
15. The absence of an entry should be capable of being formally proved
by affidavit of an officer of the business or authority to which the records
belong.
(emphasis in original)
115. The above recommendations of the Law Commission (U.K.) made in 1993, led
to the repeal of Section 5 of the 1968 Act, under the 1995 Act. The rules of evidence
in civil cases, in so far as electronic records are concerned, thus got liberated in U.K. in
1995 with the repeal of Section 5 of the U.K. Civil Evidence Act, 1968.
116. But there is a separate enactment in the U.K., containing the rules of evidence
in criminal proceedings and that is the Police and Criminal Evidence Act, 1984. Section
69 of the said Act laid down rules for determining when a statement in a document
produced by a computer shall not be admissible as evidence of any fact stated therein.
Section 69 of the said Act laid down three conditions (there are too many negatives in
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the language employed in Section 69). In simple terms, they require that it must be
shown (i) that there are no reasonable grounds for believing that the statement is not
inaccurate because of improper use of the computer; (ii) that at all material times the
computer was operating properly and (iii) that the additional conditions specified in
the rules made by the court are also satisfied.
117. The abovementioned Section 69 of the Police and Criminal Evidence Act, 1984
(PACE) was repealed by Section 60 of the Youth Justice and Criminal Evidence Act,
1999. This repeal was also a sequel to the recommendations made by the Law
Commission in June 1997 under its report titled “Evidence in Criminal Proceedings:
Hearsay and Related Topics”. Part 13 of the Law Commission's Report dealt with
computer evidence in extenso. The problems with Section 69 of the 1984 Act, the
response during the Consultative Process and the eventual recommendations of the
U.K. Law Commission are contained in paragraphs 13.1 to 13.23. They are usefully
extracted as follows:
13.1 In Minors ([1989] 1 WLR 441, 443D-E.) Steyn J summed up the major
problem posed for the rules of evidence by computer output:
Often the only record of the transaction, which nobody can be expected to
remember, will be in the memory of a computer… If computer output cannot
relatively readily be used as evidence in criminal cases, much crime (and notably
offences involving dishonesty) would in practice be immune from prosecution. On
the other hand, computers are not infallible. They do occasionally malfunction.
Software systems often have “bugs”. …Realistically, therefore, computers must
be regarded as imperfect devices.
13.2 The legislature sought to deal with this dilemma by section 69 of PACE,
which imposes important additional requirements that must be satisfied before
computer evidence is adduced - whether it is hearsay or not Shephard ([1993] AC
380).
13.3 In practice, a great deal of hearsay evidence is held on computer, and so
section 69 warrants careful attention. It must be examined against the requirement
that the use of computer evidence should not be unnecessarily impeded, while
giving due weight to the fallibility of computers.
PACE, SECTION 69
13.4 In the consultation paper we dealt in detail with the requirements of
section 69: in essence it provides that a document produced by a computer may
not be adduced as evidence of any fact stated in the document unless it is shown
that the computer was properly operating and was not being improperly used. If
there is any dispute as to whether the conditions in section 69 have been satisfied,
the court must hold a trial within the trial to decide whether the party seeking to
rely on the document has established the foundation requirements of section 69.
13.5 In essence, the party relying on computer evidence must first prove that
the computer is reliable - or, if the evidence was generated by more than one
computer, that each of them is reliable (Cochrane [1993] Crim LR 48). This can be
proved by tendering a written certificate, or by calling oral evidence. It is not
possible for the party adducing the computer evidence to rely on a presumption
that the computer is working correctly Shephard ([1993] AC 380, 384E). It is also
necessary for the computer records themselves to be produced to the court (Burr v.
DPP [1996] Crim LR 324).
The problems with the present law
13.6 In the consultation paper we came to the conclusion that the present law
was unsatisfactory, for five reasons.
13.7 First, section 69 fails to address the major causes of inaccuracy in computer
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evidence. As Professor Tapper has pointed out, “most computer error is either
immediately detectable or results from error in the data entered into the machine”.
13.8 Secondly, advances in computer technology make it increasingly
difficult to comply with section 69: it is becoming “increasingly impractical
to examine (and therefore certify) all the intricacies of computer operation”.
These problems existed even before networking became common.
13.9 A third problem lies in the difficulties confronting the recipient of a
computer-produced document who wishes to tender it in evidence: the recipient
may be in no position to satisfy the court about the operation of the computer. It
may well be that the recipient's opponent is better placed to do this.
13.10 Fourthly, it is illogical that section 69 applies where the document is
tendered in evidence Shephard [1993] AC 380), but not where it is used by an
expert in arriving at his or her conclusions (Golizadeh [1995] Crim LR 232), nor
where a witness uses it to refresh his or her memory (Sophocleous v. Ringer [1988]
RTR 52). If it is safe to admit evidence which relies on and incorporates the output
from the computer, it is hard to see why that output should not itself be
admissible; and conversely, if it is not safe to admit the output, it can hardly be
safe for a witness to rely on it.
13.11 At the time of the publication of the consultation paper there was also a
problem arising from the interpretation of section 69. It was held by the Divisional
Court in McKeown v. DPP ([1995] Crim LR 69) that computer evidence is
inadmissible if it cannot be proved that the computer was functioning properly -
even though the malfunctioning of the computer had no effect on the accuracy of
the material produced. Thus, in that case, computer evidence could not be relied on
because there was a malfunction in the clock part of an Intoximeter machine,
although it had no effect on the accuracy of the material part of the printout (the
alcohol reading). On appeal, this interpretation has now been rejected by the House
of Lords: only malfunctions that affect the way in which a computer processes,
stores or retrieves the information used to generate the statement are relevant to
section 69 (DPP v. McKeown; DPP v. Jones [1997] 1 WLR 295).
13.12 In coming to our conclusion that the present law did not work
satisfactorily, we noted that in Scotland, some Australian states, New
Zealand, the United States and Canada, there is no separate scheme for
computer evidence, and yet no problems appear to arise. Our provisional view
was that section 69 fails to serve any useful purpose, and that other systems
operate effectively and efficiently without it.
13.13 We provisionally proposed that section 69 of PACE be repealed without
replacement. Without section 69, a common law presumption comes into play
(Phipson, para 23-14, approved by the Divisional Court in Castle v. Cross [1984] 1
WLR 1372, 1377B):
In the absence of evidence to the contrary, the courts will presume that
mechanical instruments were in order at the material time.
13.14 Where a party sought to rely on the presumption, it would not need to
lead evidence that the computer was working properly on the occasion in question
unless there was evidence that it may not have been - in which case the party
would have to prove that it was (beyond reasonable doubt in the case of the
prosecution, and on the balance of probabilities in the case of the defence). The
principle has been applied to such devices as speedometers (Nicholas v. Penny
[1950] 2 KB 466) and traffic lights (Tingle Jacobs & Co. v. Kennedy [1964] 1 WLR
638), and in the consultation paper we saw no reason why it should not apply to
computers.
The response on consultation
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13.15 On consultation, the vast majority of those who dealt with this point
agreed with us. A number of those in favour said that section 69 had caused
much trouble with little benefit.
13.16 The most cogent contrary argument against our proposal came from David
Ormerod. In his helpful response, he contended that the common law presumption
of regularity may not extend to cases in which computer evidence is central. He
cites the assertion of the Privy Council in Dillon v. R ([1982] AC 484) that “it is well
established that the courts will not presume the existence of facts which are central
to an offence”. If this were literally true it would be of great importance in cases
where computer evidence is central, such as Intoximeter cases (R v. Medway
Magistrates' Court, ex p Goddard [1995] RTR 206). But such evidence has often
been permitted to satisfy a central element of the prosecution case. Some of these
cases were decided before section 69 was introduced (Castle v. Cross [1984] 1 WLR
1372); others have been decided since its introduction, but on the assumption
(now held to be mistaken) Shephard ([1993] AC 380) that it did not apply because
the statement produced by the computer was not hearsay Spiby (1990) 91 Cr App
R 186; Neville [1991] Crim LR 288). The presumption must have been applicable;
yet the argument successfully relied upon in Dillon does not appear to have been
raised.
13.17 It should also be noted that Dillon was concerned not with the
presumption regarding machines but with the presumption of the regularity of
official action. This latter presumption was the analogy on which the presumption
for machines was originally based; but it is not a particularly close analogy, and the
two presumptions are now clearly distinct.
13.18 Even where the presumption applies, it ceases to have any effect once
evidence of malfunction has been adduced. The question is, what sort of evidence
must the defence adduce, and how realistic is it to suppose that the defence will be
able to adduce it without any knowledge of the working of the machine? On the one
hand the concept of the evidential burden is a flexible one: a party cannot be
required to produce more by way of evidence than one in his or her position could
be expected to produce. It could therefore take very little for the presumption to be
rebutted, if the party against whom the evidence was adduced could not be
expected to produce more. For example, in Cracknell v. Willis ([1988] AC 450) the
House of Lords held that a defendant is entitled to challenge an Intoximeter
reading, in the absence of any signs of malfunctioning in the machine itself, by
testifying (or calling others to testify) about the amount of alcohol that he or she
had drunk.
13.19 On the other hand it may be unrealistic to suppose that in such
circumstances the presumption would not prevail. In Cracknell v. Willis Lord
Griffiths ([1988] AC 450 at p 468C-D) said:
If Parliament wishes to provide that either there is to be an irrebuttable
presumption that the breath testing machine is reliable or that the presumption
can only be challenged by a particular type of evidence then Parliament must
take the responsibility of so deciding and spell out its intention in clear language.
Until then I would hold that evidence which, if believed, provides material from
which the inference can reasonably be drawn that the machine was unreliable is
admissible.
But his Lordship went on:
I am myself hopeful that the good sense of the magistrates and the realisation
by the motoring public that approved breath testing machines are proving
reliable will combine to ensure that few defendants will seek to challenge a
breath analysis by spurious evidence of their consumption of alcohol. The
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magistrates will remember that the presumption of law is that the machine is
reliable and they will no doubt look with a critical eye on evidence such as was
produced by Hughes v. McConnell ([1985] RTR 244) before being persuaded that
it is not safe to rely upon the reading that it produces ([1988] AC 450, 468D-E).
13.20 Lord Goff did not share Lord Griffiths' optimism that motorists would not
seek to challenge the analysis by spurious evidence of their consumption of alcohol,
but did share his confidence in the good sense of magistrates who, with their
attention drawn to the safeguards for defendants built into the Act …, will no doubt
give proper scrutiny to such defences, and will be fully aware of the strength of the
evidence provided by a printout, taken from an approved device, of a specimen of
breath provided in accordance with the statutory procedure (([1988] AC 450 at p
472B-C).
13.21 These dicta may perhaps be read as implying that evidence which merely
contradicts the reading, without directly casting doubt on the reliability of the
device, may be technically admissible but should rarely be permitted to succeed.
However, it is significant that Lord Goff referred in the passage quoted to the
safeguards for defendants which are built into the legislation creating the drink-
driving offences. In the case of other kinds of computer evidence, where (apart from
section 69) no such statutory safeguards exist, we think that the courts can be
relied upon to apply the presumption in such a way as to recognise the difficulty
faced by a defendant who seeks to challenge the prosecution's evidence but is not
in a position to do so directly. The presumption continues to apply to machines
other than computers (and until recently was applied to non-hearsay statements by
computers) without the safeguard of section 69; and we are not aware of any cases
where it has caused injustice because the evidential burden cast on the defence
was unduly onerous. Bearing in mind that it is a creature of the common law, and a
comparatively modern one, we think it is unlikely that it would be permitted to work
injustice.
13.22 Finally it should not be forgotten that section 69 applies equally to
computer evidence adduced by the defence. A rule that prevents a defendant from
adducing relevant and cogent evidence, merely because there is no positive
evidence that it is reliable, is in our view unfair.
Our recommendation
13.23 We are satisfied that section 69 serves no useful purpose. We are
not aware of any difficulties encountered in those jurisdictions that have no
equivalent. We are satisfied that the presumption of proper functioning would
apply to computers, thus throwing an evidential burden on to the opposing party,
but that that burden would be interpreted in such a way as to ensure that the
presumption did not result in a conviction merely because the defence had failed to
adduce evidence of malfunction which it was in no position to adduce. We believe,
as did the vast majority of our respondents, that such a regime would work fairly.
We recommend the repeal of section 69 of PACE. (Recommendation 50)
(emphasis supplied)
118. Based on the above recommendations of the U.K. Law Commission, Section 69
of the PACE, 1984, was declared by Section 60 of the Youth Justice and Criminal
Evidence Act, 1999, to have ceased to have effect. Section 60 of the 1999 Act reads as
follows:
“Section 69 of the Police and Criminal Evidence Act, 1984 (evidence from
computer records inadmissible unless conditions relating to proper use and
operation of computer shown to be satisfied) shall cease to have effect”
119. It will be clear from the above discussion that when our lawmakers passed the
Information Technology Bill in the year 2000, adopting the language of Section 5 of
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the UK Civil Evidence Act, 1968 to a great extent, the said provision had already been
repealed by the UK Civil Evidence Act, 1995 and even the Police and Criminal Evidence
Act, 1984 was revamped by the 1999 Act to permit hearsay evidence, by repealing
Section 69 of PACE, 1984.
POSITION IN CANADA
120. Pursuant to a proposal mooted by the Canadian Bar Association hundred years
ago, requesting all Provincial Governments to provide for the appointment of
Commissioners to attend conferences organised for the purpose of promoting
uniformity of legislation among the provinces, a meeting of the Commissioners took
place in Montreal in 1918. In the said meeting, a Conference of Commissioners on
Uniformity of Laws throughout Canada was organised. In 1974, its name was changed
to Uniform Law Conference of Canada. The objective of the Conference is primarily to
achieve uniformity in subjects covered by existing legislations. The said Conference
recommended a model law on Uniform Electronic Evidence in September 1998.
121. The above recommendations of the Uniform Law Conference later took shape
in the form of amendments to the Canada Evidence Act, 1985. Section 31.1 of the said
Act deals with authentication of electronic documents and it reads as follows:
Authentication of electronic documents
31.1 Any person seeking to admit an electronic document as evidence has the
burden of proving its authenticity by evidence capable of supporting a finding that
the electronic document is that which it is purported to be.
122. Section 31.2 deals with the application of ‘best evidence rule’ in relation to
electronic documents and it reads as follows:
Application of best evidence rule — electronic documents
31.2(1) The best evidence rule in respect of an electronic document is satisfied
(a) on proof of the integrity of the electronic documents system by or in which
the electronic document was recorded or stored; or
(b) if an evidentiary presumption established under section 31.4 applies.
Printouts
(2) Despite subsection (1), in the absence of evidence to the contrary, an
electronic document in the form of a printout satisfies the best evidence rule if the
printout has been manifestly or consistently acted on, relied on or used as a record
of the information recorded or stored in the printout.
123. Section 31.3 indicates the method of proving the integrity of an electronic
documents system, by or in which an electronic document is recorded or stored.
Section 31.3 reads as follows:
Presumption of integrity
31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the
contrary, the integrity of an electronic documents system by or in which an
electronic document is recorded or stored is proven
(a) by evidence capable of supporting a finding that at all material times the
computer system or other similar device used by the electronic documents
system was operating properly or, if it was not, the fact of its not operating
properly did not affect the integrity of the electronic document and there are
no other reasonable grounds to doubt the integrity of the electronic
documents system;
(b) if it is established that the electronic document was recorded or stored by a
party who is adverse in interest to the party seeking to introduce it; or
(c) if it is established that the electronic document was recorded or stored in the
usual and ordinary course of business by a person who is not a party and who
did not record or store it under the control of the party seeking to introduce it.
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124. Section 31.5 is an interesting provision which permits evidence to be

presented in respect of any standard, procedure, usage or practice concerning
the manner in which electronic documents are to be recorded or stored. This is
for the purpose of determining under any rule of law whether an electronic document
is admissible. Section 31.5 reads as follows:
Standards may be considered
31.5 For the purpose of determining under any rule of law whether an electronic
document is admissible, evidence may be presented in respect of any standard,
procedure, usage or practice concerning the manner in which electronic documents
are to be recorded or stored, having regard to the type of business, enterprise or
endeavour that used, recorded or stored the electronic document and the nature
and purpose of the electronic document.
125. Under Section 31.6(1), matters covered by Section 31.2(2), namely the
printout of an electronic document, the matters covered by Section 31.3, namely the
integrity of an electronic documents system, and matters covered by Section 31.5,
namely evidence in respect of any standard, procedure, usage or practice, may be
established by affidavit. Section 31.6 reads as follows:
Proof by affidavit
31.6(1) The matters referred to in subsection 31.2(2) and sections 31.3 and
31.5 and in regulations made under section 31.4 may be established by affidavit.
Cross-examination
(2) A party may cross-examine a deponent of an affidavit referred to in
subsection (1) that has been introduced in evidence
(a) as of right, if the deponent is an adverse party or is under the control of an
adverse party; and
(b) with leave of the court, in the case of any other deponent.
126. Though a combined reading of Sections 31.3 and 31.6(1) of the Canada
Evidence Act, 1985, gives an impression as though a requirement similar to the one
under Section 65B of Indian Evidence Act, 1872 also finds a place in the Canadian law,
there is a very important distinction found in the Canadian law. Section 31.3(b)
takes care of a contingency where the electronic document was recorded or
stored by a party who is adverse in interest to the party seeking to produce it.
Similarly, Section 31.3(c) gives leverage for the party relying upon an
electronic document to establish that the same was recorded or stored in the
usual and ordinary course of business by a person who is not a party and who
did not record or store it under the control of the party seeking to introduce it.
IV. Conclusion
127. It will be clear from the above discussion that the major jurisdictions of the
world have come to terms with the change of times and the development of
technology and fine-tuned their legislations. Therefore, it is the need of the hour that
there is a relook at Section 65B of the Indian Evidence Act, introduced 20 years ago,
by Act 21 of 2000, and which has created a huge judicial turmoil, with the law
swinging from one extreme to the other in the past 15 years from Navjot Sandhu31 to
Anvar P.V.32 to Tomaso Bruno33 to Sonu34 to Shafhi Mohammad.35
128. With the above note, I respectfully agree with conclusions reached by R.F.
Nariman, J. that the appeals are to be dismissed with costs as proposed.
———
1 “3. The first contention is based on an assumption that the word “any one” in Section 76 means only “one of
the directors, and only one of the shareholders”. This question as regards the interpretation of the word “any
one” in Section 76 was raised in Criminal Appeals Nos. 98 to 106 of 1959 (Chief Inspector of Mines, etc.) and it
has been decided there that the word “any one” should be interpreted there as “every one”. Thus under Section
76 every one of the shareholders of a private company owning the mine, and every one of the directors of a
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public company owning the mine is liable to prosecution. No question of violation of Article 14 therefore arises.”
2 “70. Perusal of the opinion of the Full Bench in B.R. Gupta-I [Balak Ram Gupta v. Union of India, AIR 1987 Del
239] would clearly indicate with regard to interpretation of the word “any” in Explanation 1 to the first proviso to
Section 6 of the Act which expands the scope of stay order granted in one case of landowners to be
automatically extended to all those landowners, whose lands are covered under the notifications issued under
Section 4 of the Act, irrespective of the fact whether there was any separate order of stay or not as regards
their lands. The logic assigned by the Full Bench, the relevant portions whereof have been reproduced
hereinabove, appear to be reasonable, apt, legal and proper.”
(emphasis added)
3 Section 69 of the UK Police and Criminal Evidence Act, 1984 dealt with evidence from computer records in
criminal proceedings. Section 69 read thus:
“69.-(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as
evidence of any fact stated therein unless it is shown-
(a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper
use of that computer;
(b) that at all material times the computer was operating properly, or if not, that any respect in which it was
not operating properly or was out of operation was not such as to affect the production of the document or
the accuracy of its contents; and
(c) that any relevant conditions specified in rules of court under subsection (2) below are satisfied.
(2) Provision may be made by rules of court requiring that in any proceedings where it is desired to give a
statement in evidence by virtue of this section such information concerning the statement as may be required
by the rules shall be provided in such form and at such time as may be so required.”
By Section 70, Sections 68 and 69 of this Act had to be read with Schedule 3 thereof, the provisions of which
had the same force in effect as Sections 68 and 69. Part I of Schedule 3 supplemented Section 68.
Notwithstanding the importance of Part I of Schedule 3, we propose to refer to only two provisions of it, namely:
“1. Section 68(1) above applies whether the information contained in the document was supplied directly or
indirectly but, if it was supplied indirectly, only if each person through whom it was supplied was acting under a
duty; and applies also where the person compiling the record is himself the person by whom the information is
supplied.”
“6. Any reference in Section 68 above or this Part of this Schedule to a person acting under a duty includes a
reference to a person acting in the course of any trade, business, profession or other occupation in which he is
engaged or employed or for the purposes of any paid or unpaid office held by him.”
Part II supplemented Section 69 in important respects. Two provisions of it are relevant, namely-
“8. In any proceedings where it is desired to give a statement in evidence in accordance with section 69 above,
a certificate -
(a) identifying the document containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that document as may be appropriate for
the purpose of showing that the document was produced by a computer;
(c) dealing with any of the matters mentioned in Section 69(1) above; and
(d) purporting to be signed by a person occupying a reasonable position in relation to the operation of the
computer, shall be evidence of anything stated in it; and for the purposes of this paragraph it shall be sufficient
for a matter to be stated to the best of the knowledge and belief of the person stating it.
9. Notwithstanding paragraph 8 above, a court may require oral evidence to be given of anything of which
evidence could be given by a certificate under that paragraph.”
4 The definition of “data”, “electronic form” and “electronic record” under the Information Technology Act, 2000
(as set out hereinabove) makes it clear that “data” and “electronic form” includes “magnetic or optical storage
media”, which would include the audio tape/cassette discussed in Vikram Singh (supra).
5 (1965) 3 SCR 187, at 193.
6
“Section 207. Supply to the accused of copy of police report and other documents.- In any case where
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused,
free of costs, a copy of each of the following:—
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution
proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such
exclusion has been made by the police officer under sub-section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under
sub-section (5) of section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii)
and considering the reasons given by the police officer for the request, direct that a copy of that part of the
statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he
shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it
either personally or through pleader in Court.”
7
See, Clause 41.17 of the ‘License Agreement for Provision of Unified Access Services’: “The LICENSEE shall
maintain all commercial records with regard to the communications exchanged on the network. Such records
shall be archived for at least one year for scrutiny by the Licensor for security reasons and may be destroyed
thereafter unless directed otherwise by the licensor”; Clause 39.20 of the ‘License Agreement for Unified
License’: “The Licensee shall maintain all commercial records/Call Detail Record (CDR)/Exchange Detail Record
(EDR)/IP Detail Record (IPDR) with regard to the 39 communications exchanged on the network. Such records
shall be archived for at least one year for scrutiny by the Licensor for security reasons and may be destroyed
thereafter unless directed otherwise by the Licensor. Licensor may issue directions/instructions from time to
time with respect to CDR/IPDR/EDR.”
8
The Committee comprised of Rajesh Bindal, S. Muralidhar, Rajiv Sahai Endlaw, Rajiv Narain Raina and R.K.
Gauba, JJ.
9
Stephen Mason, Electronic evidence and the meaning of “original”, 79 Amicus Curiae 26 (2009)
10 [1940] 2 KB 590
11 [1956] Crim LR 442
12 [1960] Crim LR 566
13 [1962] 3 All ER 298
14
[1965] 2 All ER 464
15 (1964) 4 SCR 753
16 (1967) 3 SCR 720
17 AIR 1972 SC 1162
18 (1973) 1 SCC 471 : AIR 1973 SC 157
19
(1976) 2 SCC 17
20 1985 Supp SCC 611 : AIR 1986 SC 3
21 (2010) 4 SCC 329
22 [1968] 2 All ER 195
23 [1980] 71 Cr. App. R. 39
24Professor Smith was a well-known authority on criminal law and law of evidence; J. C. Smith, The admissibility
of statements by computer, Crim LR 387, 388 (1981).
25 Professor Tapper is a well-known authority on law of evidence; Colin Tapper, Reform of the law of evidence in
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
relation to the output from computers, 3 IntlJ L & Info Tech 87 (1995).
26Professor Seng is an Associate Professor at the National University of Singapore; Daniel K B Seng, Computer
output as evidence, Sing JLS 139 (1997).
27
[1984] 1 WLR 1372
28 [1991] Crim LR 360
29 241 FRD 534 (2007)
30Paragraph 2: “Whenever ESI is offered as evidence, either at trial or in summary judgment, the following
evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any
tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise
would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that
the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by
Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI
that is being offered as evidence an original or duplicate under the original writing rule, of if not, is there
admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and (5) is the probative
value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified
by Rule 403, such that it should be excluded despite its relevance.”
31
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600
32 Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473
33 Tomaso Bruno v. State of UP, (2015) 7 SCC 178
34
Sonu v. State of Haryana, (2017) 8 SCC 570
35 Shafhi Mohammad v. The State of Himachal Pradesh, (2018) 2 SCC 801
Judicial Discretion in Relation to Confessions
Author(s): C. R. Williams
Source: Oxford Journal of Legal Studies, Vol. 3, No. 2 (Summer, 1983), pp. 222-252
Published by: Oxford University Press
Stable URL: https://www.jstor.org/stable/764235
Accessed: 01-04-2020 06:20 UTC
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JUDICIAL DISCRETION IN RELATION
TO CONFESSIONS
C. R. WILLIAMS*
'[D]iscretion, when applied to a Court of Justice, means sound

discretion guided by law. It must be governed by rule, not by
humour: it must not be arbitrary, vague and fanciful; but legal
and regular.'
Lord Mansfield in R v Wilkes (1770) 4 Burr 2527, 2539; 98 ER 327, 334-
I. INTRODUCTION
The legal requirements for the admissibility of a confession,

the sense of not having been obtained as the result of oppre
of a threat or promise exercised or held out by a person in a
subject of exhaustive treatment by judges and by academic
important, however, is the power which resides in a
confession legally admissible.
This topic has, however, been comparatively neglected. Th
article is twofold. First, to consider the nature of jud
application to confessions, the functions it serves and t
accorded to it. Secondly, to analyse the principles and
influence and guide the courts in their exercise of this discre
The English and Australian courts in particular have adop
approaches to the exercise of discretion. A comparison
approaches, and the argument will be presented that the A
more with principle and reflects a truer understanding of t
of judicial discretion.
II. THE NATURE OF JUDICIAL DISCRETION
I. The contexts in which the discretion arises
In England and Australia the existence of a judicial discretion to excl

admissible evidence has been established in five contexts:' (a) con
*Senior Lecturer in Law, Monash University, Melbourne, Australia.

i See generally M. S. Weinberg, 'The Judicial Discretion to Exclude Relevant Evid
LJ x (1975).
222
Oxford Journal of Legal Studies Vol. 3, No. 2
C. R. WILLIAMS 223
admissions;2 (b) illegally and impro

made in the presence of the accu
examination of the accused as to char
It is in relation to similar fact evidence that the discretion to exclude is most
frequently exercised. What is involved in this context is an attempt to balance the
probative value or weight of the evidence against its potential for prejudice.7
Prejudice is here used in the sense adopted by Wigmore, that is:
(i) The over-strong tendency to believe the defendant guilty of the charge merely because
he is a likely person to do such acts; (2) The tendency to condemn, not because he is
believed guilty of the present charge, but because he has escaped unpunished from other
offences; both of these represent the principle of Undue Prejudice.8
If the risk of prejudice is great, and the probative value small by comparison, the
evidence should be rejected. If the probative value is great, and the risk of
prejudice slight by comparison, the evidence should be admitted.
The possibility of prejudice is also the key factor in relation to the discretion not
to allow cross-examination as to character and the discretion to exclude
statements made in the presence of the accused. Where cross-examination as t
character is permitted, it may properly be used only for the purpose of attacki
the credit of the accused, and not for the purpose of leading to the conclusion
he is guilty of the crime charged.' However, there is always the danger that t
2 Ibrahim v R [1914] AC 599, 614; R v Voisin [1918] I KB 531, 539; Cornelius v R (1936) 55
235, 252; McDermott v R (1948) 76 CLR 5oI, 507, 512-515; R v Lee (1950) 82 CLR 133,
148.
3 Kuruma v R [I955] AC 197, 203; Benney v Dowling [i959] VR 237, 239; R v Court [1962] Crim
LR 697; R v Payne [1963] I All ER 848; R v McNamara [1963] VR 402; Callis v Gunn [1964] I
QB 495, 5ox; R v MaqsudAli [1965] 2 All ER 464, 469; King v R [1968] 2 All ER 6io, 614; R v
Ireland(1970) 126 CLR 321; Bunning v Cross (1977) 141 CLR 54-
4 R v Christie[1914] AC 545, 559-560; R v Doolan [1962] Qd R 449-
5 Noor Mohamed v R [11949] AC 182, 192; Harris v Director of Public Prosecutions [1952] AC 694,
707; R v Fitzpatrick [1962] 3 All ER 840; R v Tait [1963] VR 520, 524; R v Doyle [1967] VR 698;
R v Boardman [1975] AC 421.
6 Criminal Evidence Act 1898 (UK) s i(f). Similar provisions exist in each of the Australian
jurisdictions with the exception of New South Wales: Crimes Act 1958 (Vic) s 399(6); Evidence
Act I929 (SA) s z8(vi); Evidence Ordinance 1971 (ACT) s 70; Evidence Act 1977 (Qld) s I5(2);
Evidence Act 1906 (WA) s 8(r)(e); Evidence Act 19io (Tas) s 85(i)(e). In Victoria and Queensland
the discretion is specifically conferred by statute. In England and the other Australian jurisdictions
it has been judicially created. See generally Curwood v R (1944) 69 CLR 561, 578, 580; Stirland v
Director of Public Prosecutions [ 1944 AC 315, 327; R v Brown [ 1960 VR 382, 383, 398; Dawson
v R (I96x) io6 CLR 1, 5; Jones v Director of Public Prosecutions [1962] AC 635, 692; Selvey v
Director of Public Prosecutions [1970] AC 304; Donnini v R (1972) 128 CLR 1x4; R v Beech
(1978) 20 SASR 410, 416-423. As to the position in New South Wales, see Crimes Act 1900
(NSW) ss 4T3A, 4i3B.
7 See generally C. Tapper, 'Proof and Prejudice' in E. Campbell and L. Waller, Well and Truly
Tried: Essays on Evidence in Honour of Sir Richard Eggleston Law Book Co (Australia 1982).
8 Wigmore on Evidence 3rd ed (Little Brown and Co, Boston 1940), vol I 650.
9 Donniniv R (1972) 128 CLR I14.
224 JUDICIAL DISCRETION IN RELATION TO CONFESSIONS
jury will misuse such evidence and treat it as bearing directly on the accu
guilt. A statement or accusation made in the presence of the accused only beco
evidence against him if he, by his words or conduct, accepts the truth o
statement or exhibits what is termed a 'consciousness of guilt'.'" However, th
fact that such accusations were made may be misused by the jury and treate
evidence of guilt.
Illegally and improperly obtained evidence and confessions and admissi
however, stand on a different footing in that a weighing of probative value
prejudice plays comparatively little part in the exercise of discretion. The fact
real evidence is obtained as a consequence of unlawful or improper police acti
in no way lessens the probative value of the evidence, nor does it inves
evidence with any element of prejudice. The fact that a confession has
obtained as a consequence of improper activity on the part of the police may
some cases bear on the reliability of the confession. However, in most cases a
impropriety not sufficient to render a confession legally inadmissible w
unlikely to render a confession unreliable. This is especially so given the
interpretation which has been given to the expression 'threat or promise' in
Ibrahim formulation." Confessions and admissions likewise normally rais
questions of prejudice. Analogies not possible in respect of the other situatio
which discretion arises may thus be drawn between these two classes of case.
2. The rationale of discretion in relation to confessions

The legal requirements for admissibility of a confession clearly find their prim
justification in the fear that an involuntary confession may be untrue.
consideration was termed 'the reliability principle' by the Criminal Law Revi
Committee in its Eleventh Report.'2
In two of the Australian jurisdictions (Victoria and the ACT), and in N
Zealand, the reliability principle has been strengthened by statutory provision
the effect that a confession shall not be rejected on the ground that a prom
threat was held out to the accused unless the trial judge is of opinion that th
inducement was really likely to cause an untrue admission of guilt to be made.
their Eleventh Report the Criminal Law Revision Committee recommen
adoption of similar provisions in England.'4
Io R v Christie [1914] AC 545, 565; Woon v R (1964) o09 CLR 529; R v Ireland (1970) 126
321; R v Thomas [1970o] VR 674, 679; Hall v R [1971] WLR 298; Barca v R (975) 133
82; Parkes v R [1976] 1 WLR 1251; R v Strausz (i977) 17 SASR 197, 204-205.
II Ibrahim v R [1914] AC 599, 609. See R v Smith [1959] 2 QB 35; Sparks v R [1964] AC
Commissioners of Customs and Excise v Harz and Power [1967] I AC 760, 820; R v Rich
(1967) 51 Cr App Rep 266, 268-269; R v Northam (1967) 52 Cr App Rep 97, o2-o105
Plotzki[t972] Qd R 379, 384-385.
12 Evidence (General) (1972) Cmnd 4991, 35.
13 Evidence Act 1958 (Vic) s 149; Evidence Ordinance 1971 (ACT) s 68; Evidence Act 19o8
20. For discussion of the Victorian provision, see Cornelius v R (1936) 55 CLR 235; R
(1950) 82 CLR 133.
14 Op cit 43-4.
C. R. WILLIAMS 225
In the area of legal admissibility

further principles. First, the consid
be received in evidence the police w
by means of inducements or oth
rules of evidence to discourage i
Criminal Law Revision Committee
Secondly, by the somewhat vague
have his own statements used again
The principle of 'unfairness' i
considerations similar to tho
incrimination.'6
In the area of discretion, how
paramount. What is involved in
desirability of placing cogent evid
the one hand and, on the other, th
and improper treatment at the han
evidence the nature of this balanci
Australian High Court. Referring
Ireland,'7 in Bunning v Cross Steph
What Ireland involves is no simple que

the weighing against each other of tw
seeking to resolve the apparent con
conviction the wrongdoer and the
encouragement, being given to the un
the law. This being the aim of the di
that it by no means takes as its centr
is, on the contrary, concerned with b
the accused being only one factor whic
of consideration.18
The Australian courts have general

in relation to confessions.'9
The notion of 'fairness', as a conc
although frequently referred to
15 Ibid., 35-
I6 See Z. Cowen and P. B. Carter, Essays on the Law of Evidence (Clarendon Press, Oxford 1956)
44-51. Note the remarks of Frankfurter J, delivering the judgment of the Supreme Court of the
United States in Rogers v Richmond 365 US 534, 540-541 (I960).
17 (197o) 126 CLR 321.
18 (1977) 14i CLR 54, 74-
19 See per Mitchell J, R v Barker (1978) 19 SASR 448, 450-451; R v Killick (1979) 21 SASR 32i,
327; per Walters J and per White J, R v Lavery (No. 2) (1979) 20 SASR 430, 432-433, 468-470;
per Hogarth, Mitchell and Mohr JJ in R v Austin (i 979) 21 SASR 315, 318; Collins v R (1980) 31
ALR 257. Contra per Wells J in R v Barker (i978) 19 SASR 448, 455-457 and R v Lavery (No.
2) (i979) 20 SASR 430, 462-466.
significant role in the exercise of discretion. Thus in R v Lee2" the High Court
squarely rejected an argument that the accused's confession should be rejected
since police questioning had prevented her from doing justice to her 'real position',
i.e. the position adopted at the trial. Similarly, evidence of incriminating
statements obtained by eavesdropping upon conversations between the accused
and third persons has been received.2 The rejection of 'fairness' as a separate
criteria affecting the exercise of discretion is in principle correct. The prosecution
of criminals is not a sporting activity requiring that the quarry be given a 'fair'
chance.
A variation of the 'unfairness' argument is adopted by Dr Ashworth, who

argues for what he terms 'the protective principle'.22 If the legal system lays down
standards for the conduct of criminal investigations, then citizens should be
regarded as having corresponding rights to be treated in accordance with these
standards. These rights should, Dr Ashworth argues, be respected by the courts
normally exercising their discretion so as to exclude improperly obtained evidence.
This argument does not, however, involve a real advance on the disciplinary
argument. The fact that an accused's rights have been infringed does not
necessarily imply that relevant evidence obtained by such impropriety should be
excluded. The legal system may equally choose to protect the suspect's rights
through the medium of civil remedies or collateral proceedings against the
offending police officers. Dr Ashworth recognizes this, accepting that in limited
circumstances improperly obtained evidence ought to be admitted." The question
thus becomes in which cases should the accused's rights be respected by the
courts rejecting the evidence and in which cases should they be protected by other
means. The answer to this question must depend upon a balancing of the
desirability of placing probative evidence before the court and protecting the
citizen from improper treatment at the hands of the police. Dr Ashworth's
argument certainly differs in emphasis from the disciplinary argument in that he
favours rejection of the evidence as the norm rather than the exception. However,
the nature of the balancing process involved is essentially the same.
The reliability principle does play a subsidiary role in the area of discretion to
the extent that if the trial judge is of the view that 'the unlawful or improper
conduct complained of is unlikely to have produced a false confession, that is a
good reason though not a conclusive one, for allowing the evidence to be given'.24
To place the factor of reliability in the balance scales in such a manner is perfectly
proper; it is obviously a more drastic step to reject a wholly reliable confession
than to reject one of doubtful value. However, it must be stressed that reliability is
20 (1950) 82 CLR 133-

21 R v Keeton (1970) 54 Cr App Rep 267; R v Stewart [1970] i All ER 689.
22 'Excluding Evidence as Protecting Rights' [x977] Crim L Rev 723.
23 Ibid., 731-732, 733-
24 R v Banner [I9701] VR 240, 251. See also R v Lee (1950) 82 CLR 133, 153; R v Hart and Others
(1977) 17 SASR Ioo, iio.
C. R. WILLIAMS 227
a subsidiary factor; the primary c

competing principles of public policy
3. Judicial attitudes to excluding evi

The English courts have been slow to
potential for prejudice.25 In relati
evidence, Lord Goddard CJ stated
judge always has a discretion to
admissibility would operate unfairly
statements to this effect have been
only two reported cases has illegally
rejected in the exercise of discretion.2
The decision of the House of Lords
close to abolishing discretion in r
accused and a co-accused were indicte
United States banknotes. They plea
invited the trial judge to conduct a v
involvement had come about as a res
Counsel hoped that he could then
discretion to exclude any prosecution
incited. The judge, doubting the exis
to argue the point on the assum
established. After argument, the jud
accused and the co-accused then chang
The accused appealed unsuccessfully
House of Lords. Both courts were una
judge has a discretion to prevent the
commission of an offence where t
entrapment. It is established that the
25 In Canada the view had been adopted by

evidence on grounds other than its potent
DLR (3d) 673. The Canada Act 1982 (UK),
Freedoms. Section 24(2) of the Charter pro
which infringes or denies any rights or fr
be excluded if it is established that, having r
the proceedings would bring the administrat
26 [1955] AC 197, 204. See J. D. Heydon, 'Ille
27 E.g. Callis v Gunn [1964] 1 QB 495, 502;
490, 498.
28 R v Court [1962] Crim L Rev 848; R v Payne [1963] i WLR 637-
29 [I98o] AC 402. See generally J. D. Heydon, 'Entrapment and Unfairly Obtained Evidence in the
House of Lords' [i980] Crim L Rev 124; R. Pattenden, 'The Exclusion of Unfairly Obtained
Evidence in England, Canada and Australia' 29 Int and Comp LQ 664 (1980); M. H. Yeo, 'The
Discretion to Exclude Illegally and Improperly Obtained Evidence: A choice of Approaches' I3
Melbourne UL Rev 31 (198I).
English law,30 and to have accepted counsel's argument would have amoun
recognizing such a defence as being available but only at the discretion
court.
The House of Lords went beyond the issue of entrapment, and gave gene
consideration to the nature and scope of the discretion of a trial judge to rejec
legally admissible evidence. Their Lordships all affirmed the existence o
discretion to refuse to admit evidence where its prejudicial effect outweighs it
probative value.3 However, they took an extremely narrow view of any discretio
to reject evidence on the ground that it was illegally or improperly obtained. Lo
Diplock, with whom Viscount Dilhorne agreed, stated: 'Save with regard
admissions and confessions and generally with regard to evidence obtained fro
the accused after commission of the offence, he has no discretion to refuse to
admit relevant admissible evidence on the ground that it was obtained b
improper or unfair means. The court is not concerned with how it was obtained.
Lord Salmon, Lord Fraser and Lord Scarman agreed, but each added slight
different qualifications to their judgment. Lord Salmon stated that the categor
of cases in which it is the duty of a trial judge to ensure that the accused receive
fair trial cannot be regarded as closed.33 Lord Fraser stated that a discretion to
exclude exists in relation 'to evidence and documents obtained from an accused
person or from premises occupied by him'.34 Lord Scarman stated that
discretion to exclude exists in relation to evidence obtained from the accused.35
Although their Lordships all stated that they did not intend their judgments
affect the right of a trial judge to reject evidence of admissions and confessions
the exercise of discretion,36 it seems that their decision must carry implications
to the scope of this discretion also. If, subject to the qualifications made by Lo
Salmon, Fraser and Scarman, the trial judge is to have no discretion to rej
evidence which is illegally or improperly obtained since such evidence is in no w
prejudicial, it is difficult to see why a discretion to exclude should exist in relat
to admissions and confessions. Logically the two should stand on the sam
footing.
Coupled with the tendency of the English courts to narrow the ambit of judicial
discretion has gone a general lack of willingness to give guidance as to the way in
which discretion should be exercised in cases where it exists.
Illustrative is R v Selvey.37 The House of Lords was concerned with the
discretion of the trial judge to allow cross-examination of the accused as to
character under section i(f) of the Criminal Evidence Act 1898. The accused was
30 R v McEvilly (1973) 60 Cr App Rep 150; R v Mealey (1974) 60 Cr App Rep 59.
31 [ 1980] AC 402, 436-437, 439, 445, 447, 451-452.
32 Ibid., 437-
33 Ibid., 445-
34 Ibid., 450.
35 Ibid., 456.
36 Ibid., 436, 445, 449, 453-
37 [ 1970] AC 304.
C. R. WILLIAMS 229
charged with buggery, and had brough

by alleging that the complainant wa
because he had refused to give him mo
decision of the Court of Criminal App
nature of the defence necessarily invo
witness or witnesses, the discretion sh
general rule exercised in favour of the
the House of Lords. Viscount Dilhorne s
No authority is given for this supposed ge

in thinking that there was any such rule
amount under the guise of the exercise of
statute of the very kind that was said in
[T]here is not, I think, any general rule as
the circumstances of each case and the over
fair.39
In Australia the High Court has adopted a much wider view of the proper scope
of judicial discretion. In R v Ireland40 the accused was convicted of the murder of
a woman by stabbing. Knives showing traces of human blood were found at the
scene of the killing, the handle of one of them being broken. At the trial it was
suggested that the handle had broken when the knife, while being used to stab the
deceased, had come in contact with the backbone of the deceased with sufficient
force to cause it to break. When taken into custody the accused was found to have
sustained an injury to his right hand. The police required him to have his hand
both photographed and examined by a doctor. At the trial these photographs were
tendered, and the doctor gave evidence to the effect that the injuries to the
accused's hand were consistent with the use by that hand of the knife with the
broken handle.
On appeal the High Court held that the police had acted improperly in requiring
the accused to submit to having his hand photographed and examined by the
doctor. The Court held that as the trial judge had not adequately considered the
question of discretion, the accused was entitled to a retrial. Barwick CJ, with
whom the other members of the Court agreed,4' stated:
Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair

acts is not, for that reason alone, inadmissible. .... On the other hand evidence of facts or
things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful
or unfair quality of the acts by which the facts sought to be evidenced were ascertained or
procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to
reject the evidence. He must consider its exercise. In the exercise of it, the competing
public requirements must be considered and weighed against each other. On the one hand
38 [1963] I QB 729, 737,

39 [19701 AC 304, 341. See also R v Coltress (1978) 68 Cr App Rep 193-
40 (1970) 126 CLR 321.
41 McTiernan, Windeyer, Owen and Walsh JJ.
there is the public need to bring to conviction those who commit criminal of
other hand there is the public interest in the protection of the individual from
unfair treatment. Convictions obtained by the aid of unlawful or unfai
obtained at too high a price. Hence the judicial discretion.42
The High Court has been prepared to spell out quite detailed g
designed to assist trial judges in the exercise of their discretion. I
Cross43 the defendant was charged with driving a motor vehicle whi
influence of alcohol. A police officer had required the defendant to ac
to the police station to undertake a breathalyser test without first c
on-the-spot preliminary test as required under local legislation." The p
had not intended to act improperly, but had mistakenly believed that
observed of the defendant's conduct rendered such a preliminary test
The magistrate before whom the case was heard rejected evidence of
of the breathalyser test and dismissed the charge. The prosecuti
ultimately to the High Court.
The Court affirmed its earlier decision in R v Ireland. In a pass
quoted, Stephen and Aickin JJ stated that what is involved in th
discretion is a balancing of the desirable goal of bringing to conviction
and the undesirable effect of curial approval or encouragement being
unlawful conduct on the part of the police.45
Their Honours went on to isolate a set of principles and guidelines
into account by trial judges in exercising their discretion. Firstly, ac
be taken of whether the police deliberately disregarded the law.
illegality occurs as a consequence of mistake, that is a factor pointing
admissibility. Secondly, consideration may be given to the question of
illegality affects the cogency of the evidence. Cogency should play n
exercise of discretion where the illegality was intentional or reckless
their Honours stated, where 'the illegality arises only from mistake, a
deliberate nor reckless, cogency is one of the factors to which regard
had'.46 A third consideration is the ease with which the law migh
complied with in procuring the evidence in question. While a deliberat
corners' ought not to be tolerated, the fact that the evidence could eas
procured without illegality had different procedures been adopte
towards admissibility. Fourthly, regard should be had to the nature of
charged. The more serious the offence, the stronger are the arguments
admissibility. Finally, regard should be had to the scheme of any leg
police have failed to comply with. If the legislation shows a deliberat
restrict narrowly the police in their power to obtain certain evi
42 (1970) 126 CLR 321, 334-335-

43 (1977) 141 CLR 54-
44 Road Traffic Act 1974 (WA).
45 Supra n 1x8.
46 Ibid., 79-
C. R. WILLIAMS 231
consideration will point towards re

legislation.
Applying these considerations the Court held that evidence of the results of the
breathalyser test should have been admitted.47 Two factors were crucial. First,
that the unlawful conduct of the police had resulted from a mistake and not from
deliberate or reckless disregard of the law, and secondly that the nature of the
illegality had in no way affected the cogency of the evidence.
An approach similar to that adopted in Australia has for many years been taken
by the courts in Scotland. In Lawrie v Muir48 a shopkeeper was convicted of using
milk bottles that did not belong to her. An illegal search of her premises had been
conducted by inspectors employed by a milk-bottle collecting agency. On appeal to
the High Court of Justiciary the accused's conviction was quashed. Lord Justice-
General Cooper stated:
From the standpoint of principle it seems to me that the law must strive to reconcile two
highly important interests which are liable to come into conflict-(a) the interest of the
citizen to be protected from illegal or irregular invasions of his liberties by the authorities,
and (b) the interest of the State to secure that evidence bearing upon the commission of
crime and necessary to enable justice to be done shall not be withheld from Courts of law
on any merely formal or technical ground. Neither of these objects can be insisted upon to
the uttermost.49
His Lordship went on to state that '[i]rregularities require to be excused, and

infringements of the formalities of the law in relation to these matters are not
lightly to be condoned'.50 The Court held that although the inspectors had acted in
good faith, the fact that they were privately employed and that they should have
known the precise limits of their authority rendered the evidence inadmissible.
A similar approach has been adopted in Ireland. In The People (Attorney-
General) v O'Brien"5 the accused were convicted of housebreaking and stealing.
Stolen property had been found by the police during a search of premises occupied
by the accused. The search had been carried out pursuant to a warrant which,
because of a misdescription of the premises, was invalid. On appeal to the Irish
Court of Criminal Appeal, Kingsmill Moore J, with whom Leary and Budd JJ
agreed, reviewed the Scottish cases and stated:
It is desirable in the public interest that crime should be detected and punished. It is
desirable that individuals should not be subjected to illegal or inquisitorial methods of
investigation and that the State should not attempt to advance its ends by utilising the
fruits of such methods. It appears to me that in every case a determination has to be made
by the trial judge as to whether the public interest is best served by the admission or by
47 Held by Barwick CJ, Stephen, Aickin and Jacobs JJ; Murphy J dissenting.
48 1950 SLT 37.
49 Ibid., 39-40. See also HM Advocate v McGuigan 1936 SLT 1i6; M'Govern v HM Advocate
1950 SLT 133.
So Ibid., 40.
51 [1965]IR 142.
the exclusion of evidence of facts ascertained as a result of, and by means of, illegal act
and that the answer to the question depends on a consideration of all the circumstances
His Honour held that since the mistake in the warrant was a pure oversight a
had not been noticed by the police before conducting the search, the evidence
been properly received.
The approach taken by the Scottish and Irish courts differs from that taken
the Australian courts in that the former begin the process of weighing
competing public interests from the standpoint that illegally or improp
obtained evidence ought prima facie to be excluded. An irregularity requires to
excused or condoned, and it is for the prosecution to point to factors justify
admissibility.53 The Australian courts, however, proceed with no bias in favour
either admitting or rejecting the evidence.
The Scottish and Irish courts have regard to similar considerations to
Australian in determining whether to admit or reject improperly obtain
evidence.
Account is taken of whether the irregularity was deliberate or accidental.54 In

HM Advocate v Hepper" a stolen attache case was found in the accused's home
while police were, with his permission, searching for other things. The Court held
the evidence was, even if irregularly obtained, nonetheless admissible. In HM
Advocate v Turnbull,56 however, the retention of documents by the police for six
months where it could be seen at once that they were not covered by the search
warrant which had been issued, was held to be sufficiently deliberate to exclude
the documents.
Improperly obtained evidence will normally be received if it was necessary to
act illegally or lose the opportunity of obtaining the evidence altogether. Thus in
Hay v HM Advocate" evidence establishing that the accused's dental structure
corresponded with bite marks on the body of a deceased girl was admitted. The
Court stated that 'there was in this case an element of urgency, since a visit to a
dentist or an injury to the accused's teeth could have destroyed the evidence'.58 In
Bell v Hogg59 evidence of verdigris rubbings obtained by the police was admitted
on a charge of stealing copper wire. Had the evidence not been obtained
immediately the accused could have destroyed it by washing their hands.
Regard will be had to the scheme of any legislation which has not been
complied with. If a special procedure has been laid down by Parliament for the
52 Ibid., x6o. See also R v Murphy [x965] NILR 138; The People v Madden [1977] IR 336; The
People v Farrell [1978] IR 13; The People v O'Loughlin [ 1979] IR 85.
53 Lawrie v Muir 1950 SLT 37, 40; M'Govern v HMAdvocate 1950 SLT 133, 135.
54 Lawrie v Muir 1950 SLT 37, 40; The People v O'Brien [19651 IR 142.
55 1958 SLT 16o.
56 1951 SLT 409.
57 1968 SLT 334.
58 Ibid., 337-
59 1967 SLT 290. See also HM Advocate v McKay I961 SLT I74; McPherson v HM Advocate
1972 SLT (Notes) 71. Cf M'Govern v HM Advocate 1950 SLT 133.
C. R. WILLIAMS 233
obtaining of evidence, departure f

inadmissibility.60
Other relevant factorsinclude the
complied with. Non-compliance wi
easy may suggest that the non-comp
accused's rights and ought therefore
the extent to which the means used
involved. Thus evidence of a convers
recorded by means of a hidden micr
methods 'are necessary to detect and
which is practised in secret and away
The above cases all involved illegally
possible to argue that the princip
admissions and confessions are not
relation to illegally obtained real
justificationfor drawing such a disti
question of balancing probative value
competing requirements of public po
generally taken the view that the rea
Cross is equally applicable in relati
obtained admissions and confession
similar approach to discretion in rela
evidence.64
Not only in relation to illegally
confessions, but in other contexts al
are prepared to give guidance as to t
cross-examination as to character, th
accepted the view that the discretion
where the casting of imputations is
with whom Lowe J agreed, stated th
be unfairly restricted in the putting
most cautious and sparing in the exe
Honour stated that the prosecutor or
accused when he is in danger of lo
60 Lawrie v Muir 1950 SLT 37, 40.

61 Fairley v Wardens of the City of London
62 Hopes v HM Advocate 1960 SLT 264, 267
63 Supra n 19.
64 E.g. Chalmers v HM Advocate 1954 SLT 177; Jones v Milne 1975 SLT 2; Hartley v HM
Advocate 1979 SLT 26. Note that in Lawrie v Muir Lord Justice-General Cooper relied upon the
discretion in relation to confessions in framing the principles to be applied in relation to
improperly obtained real evidence: 1950 SLT 37, 40o.
65 [i96o] VR 382.
66 Ibid., 399-
where such a warning is not given this should be taken into account in
the exercise of discretion. Other matters to be considered include a w
the prejudice of allowing cross-examination as to character and prior
against the harm done to the prosecution case by the casting of imp
fairness of leaving the prosecution witnesses under an imputat
preventing the prosecution from attacking character; and the extent o
that the prejudicial effect of such cross-examination might outweigh
evidentiary effect upon credit.
The approach taken in R v Brown has been affirmed in a series of
Victorian decisions.67 The situation in the other Australian states has n
finally settled.68
4. Determining the scope for judicial discretion

Why have the English courts adopted such a narrow view of the
accorded to the discretion to exclude? One reason is acceptance of the
that the duty of a trial judge is best confined to ensuring that the acc
a fair trial, and that the task of disciplining the police should be left to
or pursued in separate proceedings. Thus in R v Sang Lord Diplock st
[Y]our Lordships should, I think, make it clear that the function of the judge
trial as respects the admission of evidence is to ensure that the accused ha
according to law. It is no part of a judge's function to exercise disciplinary po
police or prosecution as respects the way in which evidence to be used a
obtained by them. If it was obtained illegally there will be a remedy in civi
obtained legally but in breach of the rules of conduct for the police, this is a m
appropriate disciplinary authority to deal with. What the judge at the trial
with is not how the evidence sought to be adduced by the prosecution has b
but with how it is used by the prosecution at the trial.69
It is, however, difficult to believe that such thinking wholly e

decision to limit narrowly the scope to be accorded to the discretion.
not the prime duty of the trial judge to ensure the accused receive a
qualified by a secondary duty to act so as to deny curial approval to
conduct of those whose task it is to enforce the law ? In a free society
dangers posed by unlawful and improper actions on the part of th
67 R v Clark [1962] VR 657; R v Crawford [1965] VR 586; R v Billings [1966

Donnini [1973] VR 67-
68 In South Australia earlier cases supported the Victorian view: R v Warren [19
319-320; R v Pfitzner (1976) 15 SASR 171, 181; R v Bradshaw (1978) 18
However, in the most recent South Australian case, these decisions were disapprov
who adopted the view taken in R v Selvey: R v Beech (1978) 20 SASR 4xo, 416-42
v Bransden (1981) 27 SASR 474. Selvey has been followed in Queensland, R v Lo
Qd R 67; Western Australia, Matthews v R [1974] WAR Iio; and Tasmania, R v
Tas SR 64. The High Court has yet to commit itself on this question. In Donnini
CLR 114, 144 however, Mason J approved the Victorian approach.
69 [1980] AC 402, 436. See also at 439 per Viscount Dilhorne.
C. R. WILLIAMS 235
other authorities worthy of consider

the guilt or innocence of the accused
It seems that the explanation for ju
concept of a discretion to exclude is t
distrust of the concept of judicial
validity of, this
that general attitude
Statements critical of judicial discr
discretion of the equity courts, equa
foot.70 Dicey equated discretion with
of law." Numerous judicial statement
The arguments urged against discre
discretion is likely to be exercised
discretion is, in its nature, unpre
exercising discretion, such notions
nature to be susceptible of definition
the overturning of accepted legal ru
change in the law being adduced.75
judgeis making a decision largely un
individual personality and idiosyncra
The fallacy involved in all these lin
that a decision as to the exercise of d
much as a decision as to the applicab
judicial discretion, Roscoe Pound arg
the variety of circumstances which
reduce to rules every issue which a c
suitable for regulation by rule a d
exercising such discretion the court w
Pound defined as 'authoritatively d
reasoning'.78
This analysis of principles and the
70 F. Pollock, Table Talk of John Selden (Sel

71 Law of the Constitution ioth ed (MacMill
72 E.g. Freeman v Tranah (1852) 12 CB 4
Beav 140, 151, 53 ER 589, 594; Morgan v
73 B. Livesey, 'Judicial Discretion to Exclude
74 Ibid., 307-308.
75 Ibid., 308-309.
76 Note N. Isaacs, 'The Limits of Judicial Di
77 Roscoe Pound, 'Discretion, Dispensation
Case' 35 NYUL Rev 925 (1960). Note also
University Press, New Haven 1922), Chap
Rev 641, 802, 940 (1923).
78 'Discretion, Dispensation and Mitigatio
927.
been developed and refined by Professor Dworkin.79 Professor Dworkin

distinguishes between 'policies' and 'principles'. A 'policy' is 'that kind of standard
that sets out a goal to be reached, generally an improvement in some economic,
political, or social feature of the community'.80 A 'principle' is 'a standard that is
to be observed, not because it will advance or secure an economic, political, or
social situation deemed desirable, but because it is a requirement of justice or
fairness or some other dimension of morality'.8' These standards differ from rules
in that rules apply in an all or nothing fashion while principles and policies operate
to incline a decision in a particular way. Principles and policies also differ from
rules in that they have a dimension of weight, i.e. some are more important than
others. Where a judge is called upon to exercise his discretion such standards
incline his decision in one direction or another. They may, in some cases, dictate a
decision as clearly as a legal rule: 'If a judge believes that principles he is bound to
recognize point in one direction and that principles pointing in the other direction,
if any, are not of equal weight, then he must decide accordingly, just as he must
follow what he believes to be a binding rule.'82
A decision reached by the application of principles is in no sense arbitrary. The
standards are derived from authoritative sources and therefore constitute part of
the law just as do legal rules:
we make a case for a principle, and for its weight, by appealing to an amalgam of practice
and other principles in which the implications of legislative and judicial history figure
along with appeals to community practices and understandings. There is no litmus paper
for testing the soundness of such a case--it is a matter of judgment, and reasonable men
may disagree."8
When is an area for decision-making suitable to be governed by legal rules and

when is it more suitable to be left for determination in the exercise of judicial
discretion? Rules clearly are most suitable for situations in which the value of
certainty is at a premium; in particular to property and commercial transactions
and the substantive criminal law. Discretion is more suitable for situations in
which it is difficult to anticipate all future cases, where such future cases could not
be described with sufficient certainty or comprehensiveness, and where such cases
may involve a conflict between competing principles or policies.
The rejection of confessions improperly obtained is a particularly appropriate
context for the operation of discretion. What is involved is the question of when a
basic policy (legal admissibility of relevant evidence) embodied in a clear rule (a
confession should be admissible if shown to be voluntary) should be subject to
qualification in the interests of promoting an important though subsidiary policy
79 Ronald Dworkin, Taking Rights Seriously (Duckworth, London 1977), Chaps 2 and 3. Note also
'Judicial Discretion' 60 J Philosophy 624 (1963).
80 Taking Rights Seriously, ibid., 22.
8 x Ibid.
82 Ibid., 35-36.
83 Ibid., 36.
C. R. WILLIAMS 237
(discouraging unlawful or improper

authorities). This is not a context
consideration. No advantage would
point at which impropriety on thei
Equally, this is a situation in which t
to anticipate all future cases render
circumstances in which a confession
What is involved is anything but a
courts in particular have develop
policies, designed to assist trial ju
recognition of the importance of th
almost certainly lead to further d
criteria.
III. THE ACCUSED'S MENTAL AND PHYSICAL CONDITION:

DISCRETION HIDING A RULE
In a number of cases confessions have been held inadmissible because the

accused's mental or physical condition at the time of making the confess
rendered the confession so unreliable as to make it dangerous to admit it. Since
considering oppression regard is had to the characteristics of the individ
accused, there is considerable overlap between this ground of rejection
oppression. However, the two are distinct. A confession may be rejected under t
present heading notwithstanding that the person to whom the confession
made did nothing to overbear or sap the accused's will.
It has sometimes been suggested that for a confession to be inadmissible as
matter of law some party other than the accused must have played a part
producing the condition which is said to render the confession involuntary.84 S
suggestions have been rejected by the courts,85 and clearly have no force
matter of principle. So far as legal admissibility is concerned it is clear that t
reliability principle overshadows the disciplinary principle and the principle o
fairness. If the accused's condition at the time of making the confession was
as to raise grave doubts as to its reliability, then it would seem to be of l
significance whether or not that condition was brought about by someone oth
than the accused.
Illustrative of the present ground of rejection is the New Zealand case of R v
Williams.86 The accused, a sailor, was charged with murder. After the incident in
which the deceased died the accused attempted to commit suicide, first by taking
poison and then by throwing himself into the harbour. When the police arrived
they found him in his cabin, frothing at the mouth and in a miserable and
84 Naniseni v R [ 971] NZLR 269; R v Isequilla [ 197511 I All ER 77.
85 Director of Public Prosecutions v Ping Lin [1976] AC 574, 594, 601-602; R v Bradshaw (1978)
18 SASR 83, 87; R v Ostojic (1978) 18 SASR 188.
86 [1959] NZLR 502.
shivering condition. He was taken to hospital where he was subjected to violent

remedial treatment with a stomach pump. Shortly afterwards he was questioned
by the police. In holding the accused's confession inadmissible, Hardie Boys J
stated:
Anything in a criminal case which purports to be a confession or admission is a solemn

statement or document to which a clear and not a distorted or disordered mind should be
brought; the very choice or decision to make it at all must be voluntary. It is essential that
the judgment is not clouded nor the mind overwrought, although mere remorse and a
desire to repent do not make it inadmissible. It must be the result of conscious recollection
of the detail of the events described and not a reconstruction put together while the body is
exhausted and the mind in a condition to be overborne, so that every instinct would be to
have it finished as shortly and as simply as possible and gain respite and rest from what
here must have been nearly seven hours of debilitating experiences.87
This ground of rejection is commonly not dealt with in the standard texts on
evidence." The reason is that it is often treated by the courts as involving an
exercise of discretion rather than being a distinct requirement of admissibility."8
This view seems wrong in principle. If the accused's mental or physical condition
at the time of making the confession was such as to render it totally unreliable and
therefore dangerous if allowed to go to the jury, then it seems a misuse of language
to say that the judge has a 'discretion' to admit the statement or not. Certainly no
clash of competing policies is involved in such a case. What is in issue, however, is
not merely a question of terminology. If the issue is classified as one of legal
admissibility, then the burden of proving that the accused's mental and physical
condition was such as to justify admissibility rests on the prosecution.9" If,
however, the issue is classified as one of discretion, the burden is upon the
accused.91
The extent to which the accused's condition must affect the credibility of his
confession before it is rendered inadmissible was considered by the High Court of
87 Ibid., 506. See also R v Burnett [I9441 VLR 1I5; R v Phillips [1949] NZLR 316. Contra
Naniseni v R [ i971] NZLR 262.
88 It is referred to briefly in Cross on Evidence (Butterworths, London 1979) 545 as a view
supported by a 'good deal of Commonwealth authority', and it is stated that 'it is probable that,
in England, the matter will be treated as one of judicial discretion'. In Phipson on Evidence 12th
ed, (Sweet & Maxwell, London 1976), however, no mention at all is made of this ground of
rejection.
89 E.g. R v Sykes and Campi [1969] VR 631; R v Stewart (1972) 56 Cr App Rep 272; Harris v
Samuels (1973) 5 SASR 439; R v Buckskin (974) 10o SASR I; R v Isequilla [1975] x All ER 77,
83-84; R v Kilner [1976] Crim L Rev 740; R v Davis [1979] Crim LR I67.
90 Ibrahim v R [1914] AC 599, 609. In England the standard of proof is beyond reasonable doubt: R
v Wilson [ 1967] 2 QB 406, 416; Director of Public Prosecutions v Ping Lin [1976] AC 574, 597,
599, 604. In Australia the standard is on the balance of probabilities: Wendo v R (1963) o09 CLR
559-
91 R v Lee (1950) 82 CLR 133, 152-153; Wendo v R (1963) o09 CLR 559; R v Smith [1964] VR 95;
R v Buckskin (1974) 10 SASR I, 2; R v Hart (i977) 17 SASR 1oo, 103; R v Bradshaw (1978) 18
SASR 83, 86-87, o102.
C. R. WILLIAMS 239
Australia in Sinclair v R.92 The ac

substantial evidence against him bein
admitted these confessions, altho
suffering from paranoid schizophren
Court upheld the trial judge's decisio
the confessions should depend u
determining the competence of a wit
making the confession was capable
Dixon J rejected the analogy of the c
a very strict test. His Honour stated:
Itmay be conceded that a confession ma

ofmind is such that no account ought to
any evidentiary purpose as proof of the
might properly be rejected. It is enough i
Boyd Sinclair's derangement was such
category.94
The other members of the Court adopted a similarly narrow view of the
circumstances in which such a confession should be rejected.95
It is correct that a high degree of mental or physical disability or debilitation
should be required before a confession otherwise admissible is rejected. If the
confession is admitted the accused may, of course, produce evidence of his
condition at the time of making it in order to attack its reliability.96 It is
suggested, however, that the High Court was setting the standard too high in
Sinclair v R. Whatever warnings a trial judge may give, a jury is always likely to
give great weight to a confession. In Sinclair v R, Dixon J described the accused's
main confession as 'a florid and affected narrative . .. employing the cliches and
fustian of the "crime and horror" story', and stated '[t]here is much in the
document itself to indicate that it is the product of a mind whose world is unreal
and whose responses to a situation are histrionic and dramatic and not those of
sensible behaviour'."97 When it is remembered that there was no real evidence to
connect the accused with the crime other than his confessions, it is difficult not to
be concerned at the dangers of a conviction resting upon the jury's assessment of
such a document.
A similarly strict view was taken by the Victorian Supreme Court in R v

Starecki.98 The accused was interviewed by the police on two occasions shortly
after he had shot himself. The bullet had entered the accused's body through the
92 (1946) 73 CLR 316.

93 R v Hill (i851) 20 LJMC 222; Toohey v Metropolitan Police Commissioner [1965] AC 595, 607-
94 (1946) 73 CLR 316, 338.
95 Rich, Starke and McTiernan JJ.
96 Jackson v R (1963) io8 CLR 591.
97 (1946) 73 CLR 316, 330.
98 [196o] VR 141.
lower part of his chin, and had then passed through his mouth and th
of his brain. The trial judge admitted evidence of the two interviews
part on the fact that the accuracy of many of the matters referred
accused was verified by other evidence. On appeal the Supreme Court a
trial judge's decision.99
In R v Stewart,'oo however, the accused's confessions were rej
accused was charged with arson. Medical evidence assessed his me
between three and a half and five and a half years. The Court, however
decision, wrongly it is submitted, as involving an exercise of discretion
a question of legal admissibility.
In some cases the view has been adopted that evidence of the accuse
or physical condition at the time of making the confession may have
operation.'"' In extreme cases it may lead to the rejection of the conf
matter of law, and in other cases it may lead to the confession being r
exercise of discretion. There seems little advantage to such an ap
decision as to admissibility as a matter of law would seem to leave lit
scope for consideration of the same matters when it came to the
discretion.
IV. THE EXERCISE OF JUDICIAL DISCRETION IN RELATION TO

CONFESSIONS
In the present section consideration will be given to the

courts to certain types of impropriety. Central to this que
Judges' Rules.
The Judges' Rules is the term used to describe the rules
police in their interrogation of suspects.'?2 The Rules ori
90o6 when, at the request of the Chief Constable of Birmi
King's Bench Division laid down a series of guidelines for
first four Rules were circulated in 1912, and a further fiv
in 1918. In 1930 an attempt was made to clarify the Rules
the Home Office.'"" In 1964 the English judges replaced the
entirely new set.'04
99 See also R v Buchanan [1966] VR 9; R v Sykes and Camnpi[,969] V

SASR 188.
100 (1972) 56 Cr App Rep 272.
ioi R v Buchanan [1966] VR 9; Klemenko v Huffa (1978) 17 SASR 549; R v Bradshaw (1978) 18
SASR 83, 87-88.
o02 Other official regulations, e.g. Prison Regulations, may also furnish standards which must be
complied with at the risk of confessions being rejected in the exercise of discretion. On
interrogation of suspects generally, see R. N. Gooderson, 'The Interrogation of Suspects'
48 Can Bar Rev 270 (1970); G. Teh, 'An Examination of the Judges' Rules in Australia'
46 Australian LY 489 (1972).
103 The Rules and the 1930 Circular are set out in R v Jeffries (1946) 47 SR (NSW) 284, 291-293.
104 Set out in Practice Note (Judges' Rules) [19641] WLR 152 and reprinted in (1978) 67 Cr App
Rep 191.
C. R. WILLIAMS 241
None of the Australian jurisdict

Rules. Victoria, Western Austral
Judges' Rules. They have not, howe
been adopted in the Standing Order
In Queensland, South Australia and the ACT the Rules have not been
incorporated in those Standing Orders, but the 1912-1918 English Rules are
nonetheless accepted as laying down standards for the interrogation of suspects
which the police in these jurisdictions ought to comply with.106 In New South
Wales a new set of Instructions has been issued by the Commissioner of Police to
govern interrogations.'07
The Judges' Rules are not, of course, rules of law. They are no more than
instructions to police and guides as to what the courts will regard as fair treatment
of suspects by the police.'08 The mere fact that one or more of the Judges' Rules
have not been complied with does not necessarily mean that a confession should
be rejected. Indeed, the courts will generally decline to reject a confession believed
to be reliable if the accused can show no more than a failure to comply strictly
with the Rules. In a joint judgment the High Court stated in R v Lee:
With regard to the Chief Commissioner's Standing Orders, which correspond in Victoria
to the Judges' Rules in England, they are not rules of law, and the mere fact that one or
more of them have been broken does not of itself mean that the accused has been so
treated that it would be unfair to admit his statement. Nor does proof of a breach throw
any burden on the Crown of showing some affirmative reason why the statement in
question should be admitted. As has already been pointed out, the protection afforded by
the rule that a statement must be voluntary goes so far that it is only reasonable to require
that some substantial reason should be shown to justify a discretionary rejection of a
voluntary admission."09
i. The requirement of a caution

It will be convenient to focus on the 1964 Judges' Rules in discussing the
requirements of a caution. Rule i provides that when a police officer is trying to
discover whether, and by whom, an offence has been committed he is entitled
to question any person, whether suspected or not, from whom he thinks
that useful information may be obtained. Rules 2 and 3 specify two points of time
at which a suspect should be cautioned. Rule 2 provides that as soon as a police
105 The Victorian Standing Orders are set out in R v Lee (1950) 82 CLR 133, 142-4-
io6 R v Nichols, Johnson and Aicheson [1958] Qd R 200; R v Lavery (No. 2) (1979) 20 SASR 430,
459-460.
107 Set out in M. I. Aronson, N. S. Reaburn and M. S. Weinberg, Litigation Evidence and
Procedure 2nd ed (Butterworths, Sydney 1979) 337-
xo8 R v Voisin [1918] x KB 531, 539-540. See also McCarrick v Leary [1962] IR 225; R v Ovenell
[1969] i QB 17, 26.
109 (1950) 82 CLR 133, 154. See also McDermott v R (948) 76 CLR 501, 514-515; R v Bodsworth
[1968] 2 NSWR 132, 138-139; R v Lavery (No. 2) (1979) 20 SASR 430, 459-460. Note Neasey
J, 'The Rights of the Accused and the Interests of the Community' 43 Australian LJ 482, 494
(1969), citing a statement issued by the 1965 Conference of the Chief Justices of Australia and
New Zealand.
officer has evidence which would afford reasonable grounds for suspectin
person has committed an offence, he shall caution that person. Rule 3 pro
that where a person is charged with or informed that he may be prosecuted
offence he shall be cautioned.
Despite the significance of the caution in advising the suspect as to his legal
right to remain silent, neither the English nor the Australian courts are prepared
to reject confessions merely because a required caution or cautions were not given.
While the failure to caution taken in conjunction with other improprieties may
lead to rejection of a confession,'10 the present writer is aware of no English or
Australian case in which a trial judge's decision to admit a confession was
reversed on appeal when the sole impropriety established was the failure to give a
required caution. 11
2. Questioning the suspect after he has been cautioned or charged

The police may continue to question a suspect after he has been cautioned."2
After he has been charged, however, he ought not normally to be questioned
further. This would seem to have been the intent of the 1912-1918 Judges' Rules.
Rule 3(b) of the 1964 Judges' Rules states:
It is only in exceptional cases that questions relating to the offence should be put to the
accused person after he has been charged or informed that he may be prosecuted. Such
questions may be put where they are necessary for the purpose of preventing or
minimizing harm or loss to some other person or to the public or for clearing up an
ambiguity in a previous answer or statement.
Nevertheless, both the Australian and the English courts have shown little
reluctance in admitting evidence of confessions made in response to questioning
after the suspect has been charged."3
The Scottish courts, however, have extended greater protection to suspects in
this respect. Once the police have decided to charge a suspect, or have formed the
view that he is likely to have committed an offence, further questioning may lead
to the rejection of any resulting confession. In Chalmers v HM Advocate"4 a
sixteen year old youth who was under suspicion of having committed robbery and
murder was interrogated by the police. He made a confession and took the police
to a field where a purse which had been in the possession of the murdered man
was found. At the youth's trial the prosecution did not attempt to lead evidence of
Iio E.g. R v McKenzie(I977) 17 SASR 304.

i Ii Cases in which a confession was held admissible despite the failure to give a required caution
include R v Voisin [x918] I KB 531; Stapleton v R (1952) 86 CLR 358; Webb v Cain [1965] VR
91; R v Buckskin (I974) io SASR i; R v Rogers [1979] 1 NZLR 307; Dansse v Kelly [1981] Qd
R i.
I12 R v Giesielski[I972] I NSWLR 504, 511; R v Williams (1977) 67 Cr App Rep 'o.
11I3 E.g. Cornelius v R (1936) 55 CLR 235, 247; R v Jeffries (1946) 47 SR (NSW) 284, 302, 311;
Stapleton v R (1952) 86 CLR 358, 375-376; R v Smith [196I] 3 All ER 972; R v Lowery and
King (No. ) [ 972] VR 554; Conway v Hotten [1976] 2 All ER 213.
114 1954 SLT I77.
C. R. WILLIAMS 243
the terms of the statement, but

finding of the purse. On appeal to
evidence of the finding of the p
inadmissible. Lord Justice-General
The theory of our law is that at the s
anyone with a view to acquiring inf
criminal; but that, when the stage h
suspicion, has in their view centred u
crime, further interrogation of that pe
e.g. to the point of extracting a conf
evidence of that confession will almos
Subsequent cases have stressed t

rejection of a confession if it is car
v Milne"6 evidence of a number of
police questioning was received. In
stated:
The mere fact that a suspected person is asked a question or questions by a police officer,
before or after being cautioned, is not in itself unfairness, and if answers are to be excluded
they must be seen to have been extracted by unfair means which place cross-examination,
pressure and deception in close company."7
In Hartley v HM Advocate"" a seventeen year old boy confessed to murder in

response to questioning after he had been held in custody for twelve hours. The
High Court of Justiciary held the accused's confession to be admissible. In the
course of discussing Chalmers v HMAdvocate, Lord Avonside stated:
I make two observations on these dicta. Firstly, police officers may question a suspect so
long as they do not stray into the field of interrogation. Secondly, and most importantly,
cross-examination is just what it means. It consists in questioning an adverse witness in
an effort to break down his evidence, to weaken or prejudice his evidence, or to elicit
statements damaging to him and aiding the case of the cross-examiner. '9
It is suggested that the view adopted in Chalmers v HM Advocate is unduly

favourable to accused persons. If the questioning of a suspect is carried to
extremes then it may, of course, result in any confession being inadmissible on the
ground of oppression. If an accused who does not wish to answer police questions
is unduly harassed, then any confession he ultimately makes may, it will be
argued, be properly rejected in the exercise of discretion. 20 However, to go further
115 Ibid., 184. See also HM Advocate v Rigg 1946 SLT 49; HM Advocate v Friel 1978 SLT
(Notes) 21; HMAdvocate v Anderson 1980 SLT (Notes) o04.
ii16 1975 SLT 2.
S17 Ibid., 5 per Lord Justice-General Emslie and Lords Johnston and Kissen.
I18 1979 SLT 26.
II9 Ibid., 28. See also Brown v HMAdvocate 1966 SLT 105; Miln v Cullen 1967 SLT 35; Murphy
v HM Advocate 1975 SLT (Notes) 17; Balloch v HM Advocate 1977 SLT (Notes) 29; Boyne v
HMAdvocate 1980 SLT 56.
120 Infra 244-245.
and to reject a voluntary confession on the ground that it was obta

of the police cross-examining a suspect, who was prepared to
questions, seems to be giving insufficient weight to the desirable
relevant and reliable evidence before the court.
3. Questioning the suspect after he has indicated he does not wish t

further questions or wishes to consult a solicitor
If the suspect, after being taken into custody, states that he does
answer further questions, the police ought not to ask him further
they do, and the suspect remains silent or refuses to answer, then
questioning is inadmissible as being irrelevant.'21 If, however, the
answer, and makes admissions, is that evidence liable to exclusion
of the Court's discretion ? This question has not been considered b
courts, and no clear answer appears from the Australian cases.
In R v Ireland (No. )'122 the Supreme Court of South Australia h
R v Evans,'23 that in such circumstances any statement made b
should be rejected. On appeal to the High Court the accused's state
inadmissible on the grounds of irrelevance, the High Court neither
rejecting the Supreme Court's decision on the issue of discretion.'2
case of Basto v R'25 the High Court had upheld the admission of st
in response to questions asked after the accused had stated he d
answer further questions. However, in a series of subsequent c
Australian Supreme Court has affirmed the view that such statem
rejected. Thus in R v Stafford, Bray CJ stated:
the police should not persist in questioning a man who has signified his
answer them and a fortiori when he has asked to see a solicitor before an
do so the evidence should be rejected. . .. The law confers the right of sil
persons except in so far as any statute takes it away. That right must be
police and enforced by the Courts.'26
A similar view was adopted by the Queensland Court of Criminal
Hart,127 and in New South Wales in an obiter dictum by McCle
Roger. 128 In Victoria, however, such statements have been received.
121 R v Ireland(1970) 126 CLR 321; Hall v R [197] I WLR 298.

122 [1970] SASR 416.
123 [1962] SASR 303.
124 Supra n 121.
125 (1954) 91 CLR 628.
126 (1976) 13 SASR 392, 398-399. See also Harris v Samuels (1973) 5 SASR 439
v Harris and Daly (No. 2) (0975) 12 SASR 270; R v Buckskin (1974) io SA
Collins (1976) 12 SASR 50i, 507; Walker v Marklew (1976) 14 SASR 463; R
21 SASR 321.
127 [1979] Qd R 8. See also R v Borsellino [1978] Qd R 507.
128 (1964) 81 WN (Pt i) (NSW) 572, 579-
I29 R v Wyatt [1972]VR 902, 906.
C. R. WILLIAMS 245
To harass a suspect by continued

wishes to exercise his right to rem
Nonetheless, it is suggested that th
should lead to rejection may go too
such further questioning is carried
further questions asked in the hop
should not be sufficient to rende
however, the suspect is harassed an
his settled decision to say no m
rejected.
A suspect is entitled to contact a solicitor. The 1964 Judges' Rules provide:
'That every person at any stage of an investigation should be able to communicate
and to consult privately with a solicitor. This is so even if he is in custody
provided that in such a case no unreasonable delay or hindrance is caused to the
processes of investigation or the administration of justice by his doing so.' It has
been recognized that this principle is equally applicable in Australia. In both
countries failure to allow the accused access to a solicitor may result in the
rejection of the confession in the exercise of discretion.'30
A suspect is entitled also, if he wishes, to have a solicitor present at his
interrogation."' Failure to permit this may have a twofold significance. Firstly, it
may lead to the rejection of the confession in the exercise of discretion. Secondly,
if the confession is admitted, the fact that a solicitor was not permitted to be
present may lead to the inference that the alleged confession was not in fact made
or is untrue. In Driscoll v R'32 the accused was convicted of murder. Evidence of
unsigned records of interview with police officers containing certain admissions
were admitted at the trial. On a voir dire the accused's solicitor gave evidence that
the police officer who had compiled the records of interview had denied him access
to the accused and had refused to allow him to be present at the interviews. The
trial judge refused to allow the solicitor's evidence to be given before the jury. On
appeal the High Court held that the solicitor's evidence should have been
admitted. Gibbs J, with whom Mason, Jacobs and Murphy JJ agreed on this point,
stated:
The fact that a police officer has attempted to prevent a solicitor from getting in touch
with a client who is held for questioning, and has refused to allow the solicitor to be
present when the questions are asked, is relevant to the question whether the admissions,
alleged by the police to have been made in the course of the interrogation, were in fact
made. It is not of course conclusive.'33
130 R v Allen [1977] Crim LR 163; R v Borsellino [1978] Qd R 507; R v Donohoe [1979] Crim LR
382; R v Hart [ 1979] Qd R 8; R v Trickett [1981] Crim LR 331. Cf R v Elliott [1977] Crim LR
551; R v Lemsatef[1977] 2 All ER 835; Erratum to R v Donohoe [1979] Crim LR 531.
131 Driscoll v R (1977) 137 CLR 517, 537-540. Cf the 1974 Instructions of the New South Wales
Police Commissioner.
132 (I977) 137 CLR 517-

133 Ibid., 539-
4. Statements by co-accuseds and use of information received

Rule 5 of the 1964 Judges' Rules states the procedure to be adopted in putting to
an accused a statement made by a co-accused. That rule provides:
If at any time after a person has been charged with, or has been informed that he may be
prosecuted for an offence a police officer wishes to bring to the notice of that person any
written statement made by another person who in respect of the same offence has also
been charged or informed that he may be prosecuted, he shall hand to that person a true
copy of such written statement, but nothing shall be said or done to invite any reply or
comment. If that person says that he would like to make a statement in reply, or starts to
say something, he shall at once be cautioned or further cautioned as prescribed by rule
3(a).
In fact Rule 5 seems not to be strictly insisted upon. In cases where a co-
accused's statement is read to the accused, and the accused invited to reply, the
Australian courts will generally hold any admission subsequently made by the
accused to be admissible.'34
There is no objection to police putting to an accused information implicating
him which they have obtained from persons other than a co-accused. Such tactics
are equally acceptable whether the police merely use such information as a source
for their own questions, or inform the accused that some third party has supplied
them with such information.'35 If, however, the police mislead the suspect by
advising him they have information they in fact do not have, then, if such
deception was perpetrated knowingly, any admission is likely to be rejected.'36
5. Unlawful detention and holding charges

(a) Unlawful detention. At common law neither the police nor any other authority
has the right to detain a suspect for the purpose of interrogation.'37 The only
power to detain is the power to arrest, and that power 'is exercisable only for the
purpose of taking [the accused] before a magistrate to be dealt with according to
law'.'38 The detention of a suspect for the purpose of interrogation thus
constitutes false imprisonment on the part of the police. Equally, if the accused is
arrested but not taken before a magistrate within a reasonable time his detention,
initially lawful, is rendered illegal and a false imprisonment.'39
The fact of an unlawful detention may lead to the rejection of a confession on
the ground of oppression.'40 Where this is not so, however, it would seem that the
134 R v Howath (I973) 2x FLR 400, 402-403; R v Lavery (No. 2) (1979) 20 SASR 430, 460.
135 R v Evans [1962] SASR 303, 307.
136 See cases at 3 Crim L 156-I58 (1979)-
137 R v Banner [1970] VR 240; R v Lemsatef[1977] 1 WLR 812; R v Houghton (1978) 68 Cr App
Rep 197.
138 R v Banner [1970] VR 240, 249.
139 John Lewis and Co Ltd v Tims [1952] AC 676; Dallison v Caffery [19651] QB 348; Drymalik v
Feldman [1966] SASR 227; R v Banner [1970] VR 240; McIntosh v Webster (1980) 30 ACTR
19.
140 See generally Cornelius v R (1936) 55 CLR 235, 252; McDermott v R (1948) 76 CLR 501, 511;
R v Prager [1972] 1 WLR 260; R v Hudson (1980) 72 Cr App Rep 163.
C. R. WILLIAMS 247
unlawful detention of a suspect o

impropriety to render a confes
McDermott v R, Dixon J stated: 'T
detention of an accused person as a
admission is treated as an improprie
The Australian courts have, howev
a confession on this ground. The hi
of the Full Court of the Supreme C
was charged with murder. He was
He was kept in custody and interv
Wednesday morning, he made a
occasions during the course of th
evening was taken to a motel where
was interviewed again the followin
confession, and at 5.00 p.m. that e
finally brought before a magistrate
The conduct of the police in holdin
from Tuesday afternoon until Frid
take him before a magistrate const
imagined. However, the trial judge
and declined to exercise his discret
and appealed unsuccessfully to th
Court stated that the conduct of t
However, they nonetheless held th
unfairness] that is reasonably open
any features which, in the circum
the evidence'.143
The decision in R v Banner is, i
confession obtained in such circum
difficult to think of cases in whic
judicial discretion is to perform any
from improper activity on the part
must lead to exclusion.
A different approach to that taken in R v Banner was adopted by the Supreme
Court of South Australia in R v Stafford.144 The accused was placed in custody
without being informed he was being arrested and without being advised of the
reason he was being held in custody. He was then interrogated over a four-hour
period without being charged or taken before a magistrate. The Court held the
accused's detention to be unlawful, and rejected a confession made by him. Bray
CJ described the actions of the police as 'an outrageous and unwarrantable
141 (1948) 76 CLR 501, 513.
142 [1970] VR 240.
143 Ibid., 251. See also R v Bruce [1965] QWN 48.
144 (1976) 13 SASR 392.
exercise of arbitrary power', and stated 'I think the courts should attach to this
sort of conduct emphatic disapproval and effective sanctions.'145
In England also the courts have been slow to exclude confessions on this
ground. In R v Houghton'46 the accused, a well-educated man with a number of
prior convictions, was held incommunicado for five days after offering his services
to police as an informer. The Court of Appeal upheld the trial judge's decision not
to reject the accused's confession in the exercise of his discretion. However, where
impropriety reaches a sufficiently high level, the English courts also will reject
confessions. In R v Hudson'47 the accused, a man of fifty-nine with no previous
record, was arrested and held for a period of five days and four nights without
being taken before a magistrate. During this time he was questioned for a total of
twenty-five hours, and asked some 70o questions. The Court of Appeal held his
confession to be inadmissible as being a consequence of oppression. The Court
further held that, even if that were not so, the confession should have been
excluded in the exercise of discretion.
(b) Holding charges. A 'holding charge' is a charge which is not expected to be the
main matter in respect of which the accused will be proceeded against. If the
holding charge is a mere sham, then the accused's detention is unlawful and the
arguments presented in the preceding section are applicable.
If, however, the holding charge is genuine, the accused may properly be
questioned about other matters. In R v Lavery (No. 2)"48 the accused was arrested
on a charge of being in possession of money suspected of being stolen. While
under arrest he was questioned about, and ultimately convicted of, the robbery of
a bank. Dismissing the accused's appeal Wells J stated: 'when an arrest is made
according to law on proper grounds, it matters not a whit that, to the police
officers who made it, the arrest will serve some purpose in addition to that of
formally bringing the alleged offender to justice on the charge on which he has
been arrested'.149
Equally, where an accused has been arrested on one charge, and police
subsequently learn he may have been involved in other offences, it is proper for
him to be questioned about those other offences."is
145 Ibid., 401. See also Walker v Marklew (1976) 14 SASR 463; R v Eyres and Others (1977) 16
SASR 226; R v Killick (1979) 21 SASR 321. Cf R v Austin (1979) 21 SASR 315; R v Miller
(1980) 25 SASR I70.
146 (1978) 68 Cr App Rep 197. See also R v Macintosh, The Times, 8 October, 1982.
147 (1980) 72 Cr App Rep 163. See also R v McGregor [1975] Crim LR 514; R v Grieves [I981]
Crim LR 558.
148 (1979) 20 SASR 430.
149 Ibid., 462. Cf R v Eyres and Others (I977) 16 SASR 226.
15o Baldock v Douglas (1953) 56 WALR 82; Beamish v R [1962] WAR 85, 87; R v Buchan [19641]
WLR 365; R v Bodsworth [1968] 2 NSWR 132.
C. R. WILLIAMS 249
6. Aboriginals, children and the

The questioning of Australian ab
mental handicap raises special pr
were summarized by Wells J in R
The questioning of Aboriginal nativ

The former find it difficult to spe
kinds of concepts and reasoning; m
dialect of the Aboriginal native or
and affairs. Furthermore, many A
Aboriginals-show a tendency to d
police officers, that is far more
Australian."'
For these reasons the Australian courts have laid down special guidelines to be
followed in the interrogation of aboriginal suspects.152 Such guidelines are said to
have a status similar to that of the Judges' Rules. The courts have, however,
generally been more willing to exclude confessions made by aboriginals where
there has been a failure to meet these standards than they have to reject
confessions obtained from non-aboriginals in circumstances involving a breach of
the Judges' Rules."3 The reason for this greater willingness is that confessions
obtained from aboriginals in circumstances where proper procedures are not
carefully complied with may well be unreliable.
Equally great care is required in relation to the interrogation of children and the
mentally handicapped. The Administrative Directions which accompanied the
1964 Judges' Rules stated that 'as far as practicable children (whether suspected of
crime or not) should only be interviewed in the presence of a parent or guardian,
or, in their absence, some person who is not a police officer and is of the same sex
as the child'. This requirement has been accepted in Australia also and, if not
acted upon, may result in rejection of a confession in both countries.'154 A parent or
independent adult is also required to be present at the interrogation of mentally
handicapped persons.'55 Thus in R v Williams,'56 R v Westlake'57 and R v
Platt'"8 confessions were rejected on the ground of failure to comply with the
Judges' Rules, in particular the requirement that a parent or independent adult be
present. As with aboriginals, a realization that confessions obtained from children
and mentally handicapped persons may well be unreliable if proper procedures are
I51 (1976) 14 SASR I, 6.

152 R vAnunga (1976) Ii ALR 412.
153 R v Williams (1976) 14 SASR i; Walker v Marklew (1976) 14 SASR 450; R v Anunga (1976)
ix ALR 412; R v Clevens(198x) 37 ACTR 57. Cf Collins v R (1980) 31 ALR 257.
154 Dixon v McCarthy [1975] 1 NSWLR 617; R v C [19761] Qd R 351; R v Clyde [1979] Crim LR
385. Cf R v Roberts [ 970] Crim LR 465.
155 Home Office Circular 109/1976, para (ii).
156 [19791 Crim L Rev 47.
157 [19791 Crim L Rev 652.
158 [ 1981 ] Crim L Rev 622.
not carefully observed, accounts for the courts' greater willingness to exerc
discretion in this context.
V. RECOMMENDATIONS OF THE ROYAL COMMISSION ON CRIMINAL
PROCEDURE
There would seem to be a strong case for adoption of the re

in the Eleventh Report of the Criminal Law Revision Comm
promise should render a confession inadmissible only if it wa
the circumstances existing at the time, to render unreliable a
might be made by the accused in consequence thereof'.'9 Th
or promise' is interpreted widely and, if the reliability princ
proper underlying rationale of the exclusion rule, the
inducement should only lead to rejection if that inducement
an untrue confession.
Should the admissibility of confessions and admissions be ca
is the view which has been adopted by the English Royal Co
Procedure.'60
The Commission recommends abolition of the rule that a confession obtained
as a result of a threat or promise held out by a person in authority is inadmissible,
and abolition also of the discretion of the trial judge to reject an improperly
obtained confession."'6 The Commission recommends that a Code of Practice
governing police interrogation be devised to replace the present Judges' Rules.'62
Confessions obtained in breach of the Code should, however, be admissible since
'the exclusion of evidence is not a satisfactory way of enforcing compliance with
rules'.'"6 Where a confession is admitted notwithstanding breaches of the Code
the jury should, however, receive a warning from the judge to the following effect:
that under pressure a person may make an incriminating statement that is not true, that
the code has been introduced to control police behaviour and minimize the risk of an
untrue statement being made and that if they are satisfied that a breach of the code has
occurred it can be dangerous to act upon any statement made; accordingly, they should
look for independent support for it, before relying upon it.'"1
In only one case should a confession be inadmissible: 'in order to mark the
seriousness of any breach of the rule prohibiting violence, threats of violence,
torture or inhuman or degrading treatment and society's abhorrence of such
conduct, non-compliance with this prohibition should lead to the automatic
exclusion of evidence so obtained'.'65
159 Op cit 43-
i6o Report (January, I981) Cmntd 8092. Note M. Inman, 'The Admissibility of Confessions' [1981]
Crim L Rev 469.
r6i Para 4.131.
162 Paras 4.109-4. I12.
163 Para 4.132.
164 Para 4.133.
i65 Para 4.132.
C. R. WILLIAMS 251
It is submitted that the Commi

First, because a confession obtai
oppression not amounting to violen
may be highly unreliable. Notwiths
jury may well give such evidence f
it is submitted that improper actio
may be sufficiently grave to jus
torture or inhuman or degrading
principle properly constitutes t
confessions, it is a mistake to accor
VI. CONCLUSION
The reliability principle is, quite clearly, the governing

law relating to confessions. The three grounds for
(oppression, unreliability because of the accused's me
and the presence of an inducement emanating from a pe
their justification in the reliability principle.
In the field of judicial discretion, however, the discip
significant role. What is involved in this context is a b
goal of admitting relevant evidence and bringing to co
reliability principle) and the undesirable effect
encouragement being given to improper practices on the
authorities (the disciplinary principle). Even here, how
of the likely reliability of the confession is a factor ta
balancing process. It is usually only in cases of quite se
appeal court will be prepared to overturn a trial jud
confession. In so far as the principle of unfairness c
disciplinary principle, it would appear to be a principle t
service is paid.
It is submitted that the underlying philosophy of
Courts should, it is submitted, be concerned primarily
parties before them. The function of the law of eviden
that only relevant and reliable evidence is placed befor
vehicle for controlling police and other law enforcemen
is best pursued through internal discipline and, where
committed, in separate proceedings.
However, basic principles are subject to qualifications,
reaches a sufficiently grave level, then it is submitted
competing requirements of public policy may properly
confession. At a certain point the evil of acquitting a g
than the evil of tolerating lawlessness on the part of the
that the courts should retain the discretion to reject a
guided in its exercise by the principles spelt out by the High Court
Cross. 166
To a considerable extent the reluctance of the English courts to develop the

notion of a judicial discretion to exclude legally admissible evidence is based on a
general distrust of the concept of discretion, and a failure to appreciate that an
exercise of judicial discretion is a decision governed by law just as much as a
decision as to the application of a legal rule. It is submitted that a more
satisfactory approach for the courts to adopt is to develop and refine principles
and guidelines to be used by trial judges in the exercise of discretion. The
Australian courts have made considerable progress in this direction, and it is
submitted that this approach should be followed and carried further by the courts
in both countries.
166 Supra n 43.
Section 27 of the Indian Evidence Act (I of 1872)—Sir James Stephen and Deoman
Upadhyaya
Author(s): Vepa P. Sarathi
Source: Journal of the Indian Law Institute, Vol. 6, No. 2/3 (Apr.-Sept., 1964), pp. 332-337
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43949812
Accessed: 06-04-2020 08:21 UTC
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Journal of the Indian Law Institute
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332 GASES AND COMMENTS
Section 27 of the Indian Evidence Act (I of 18

and Deoman Upadhyaya.1
Section 27 of the Indian Evidence Act is one of those sections
that raise their heads every now and then to remind advocates an
judges that nothing is settled until it is settled right.
To appreciate its scope one must bear in mind the context in
which it appears. The sections dealing with relevancy of confessions
in a legal proceeding are sections 24 to 30. Section 24 says that con-
fessions by accused persons brought about by inducement, threat or
promise arc irrelevant. Section 25 deals with confessions by accused
persons to police officers and imposes an absolute ban on their receptio
as evidence. The next section, section 26 is in the following terms : -
"No confession made by any person whilst he is in the custody
of a police officer, unless it be made in the immediate presence of
a Magistrate, shall be proved as against such person."
There is an Explanation to the section which is not relevant for the
present discussion. The difference between this section and the pre-
vious one is, that under section 25, the irrelevant confession is made
to a police officer and the accused person making the confession may
or may not be in police custody ; and, under section 26, the irrelevant
confession is made to a person other than a police officer, by an
accused person in police custody. Now follows section 27 and it
reads :
"Provided that, when any fact is deposed to as discovered in
consequence of information received from a person accused of any
offence, in the custody of a police officer, so much of such infor-
mation, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved."
It is obvious that, for the application of the section, there should
be information given by an accused person. Such accused person must
be in the custody of the police, and the information given must lead
to the discovery of a fact. But certain difficulties have arisen on the
language of the section which the Supreme Court has attempted to
resolve, and it is proposed to examine how satisfactory the solutions
are.
The difficulties referred to are the following : -

(i) Is this section a proviso to section 26, or to section
or to sections 24, 25 and 26 ?
1. State of U.P. v. Deoman Upadhyaya, A.I.R. 1960 S.C. 1125.
SECTION 27 OF THE INDIAN EVIDENCE ACT (i OF 1872) 333
(ii) To whom should the information be given - to any one

including police officers or to persons other than police
officers ?
(iii) Why is the accused person required to be in police custody

at the time of giving the information ?
(iv) Does the clause " whether it amounts to a confession or not "
apply to "information" to or "so much of the information"?
(v) What is the effect of this section on section 162, Code of
Criminal Procedure (Act V of 1898), which, so far as it is
relevant is as follows : -
" 162(1) No statement made by any person to a police officer in

the course of an investigation under this chapter shall,
if reduced into writing, be signed by the person making
it ; nor shall any such statement or any record thereof,
whether in a police diary or otherwise, or any part of
such statement or record, be used for any purpose (save
as hereinafter provided) at any inquiry or trial in
respect of any offence under investigation at the time
when such statement was made :
* * *
(2) Not
statem
clause
or to a
The Sup
tions 25
ing that
tion lea
includin
"whethe
fact tha
to the f
against
information" and not to "information."
The wording of the section makes it imperative that the person

giving the information leading to a discovery should be accused of an
offence (at the time of giving the information or later) and that he
2. Ramkishan Mithanlal Sarma v. The State of Bombay, A.I.R. 1954 S.C. 300.
3. State of Bombay v. Kat hi Kalu Oghad , A.I.R. 1961 S.C. 1808.
4. Ramkishan Mithanlal Sarma1 s case op. cit.
334 CASES AND COMMENTS
should be in police custody at the time of gi

latter requirement has given rise to an anom
the information is given to a police officer.
of the information given to a police officer by
relevant if it leads to the discovery of a fac
the information given to a police officer by a p
custody is relevant, even if it leads to th
Supreme Court, faced with the alternativ
ultra vires , sought to explain away 5 this par
reading together section 27 of the Evidence
Criminal Procedure Code.
But, the anomaly would never have arisen if the Supreme Court
had followed the lead given by the Judicial Committee of the Privy
Council in Pakala Nar ayanaswamť s case,6 and followed it to its logical
conclusion. In Nar ay anas w ami9 s case it was held that section 27 is
intended to be a proviso to section 26 and applies to statements to
whomsoever made, such as, a fellow prisoner, a doctor or a visitor. It
is to be noted that " police officer " is not mentioned. The same view
is expressed in Kotayya's case 7 where, Sir John Beaumont said :
<c Section 27, which is not artistically worded, provides an
exception to the prohibition imposed by the preceding section.
H» H*
On normal princi
the proviso to s
held to nullify th
But it is well to r
for, the learned Jud
be given to police
interpretation of t
"fact discovered". B
5. Siate of U.P. v. Deo

6. A.I.R. 1939 P.C. 47.
7. A.I.R. 1947 P.C. 67.
8. An inadmissible confession may lead to the discovery of some fact, such
the hiding place of stolen goods. Evidence of the facts discovered may be giv
An Introduction to Evidence , G.D. Nokes, p. 297. See also Rex v. Baker [194
2K.B. 381.
SECTION 27 OF THE INDIAN EVIDENCE ACT (i OF 1872) 335
"so much information, whether it amounts to a confession or not." That

is to say, the section contemplates the admissibility of statements such
as "the weapon with which I killed" or "the jewels that I have
stolen." Sir John Beaumont was not willing to allow such statements
in evidence because, he was obsessed by the "pursuasive powers" of
the police. But the police come into the picture only if the informa-
tion is allowed to be given to them. If, however, what was contem-
plated, was only an exception to section 26, then the information could
be given only to persons other than the police, and there may not be
such a strong reason for guarding the accused from unscrupulous police
officers. One can better protect an accused from police persuasion, by
holding that admissible information (even when it amounts to a con-
fession) could be given only to persons who are not police officers
rather than by rejecting the confessional portion of the information,
but allowing the information to be given to the police.
And has not the Supreme Court itself by its interpretation taken
away the protection given to the accused. By holding that section 27
is an exception to section 25, they have allowed portions of state-
ments made to police officers to be received in evidence if they lead
to the discovery of a fact. No doubt, in Kathi Kalu Oghad's case 9, the
Court said that if the accused showed that he was compelled to make
the statement he could claim the privilege against self-incrimination
contained in article 20(3) of the Constitution of India and presumably
of section 24 of the Evidence Act. But this protection is illusory
because, it throws an almost impossible burden on him. How can the
accused, if he is " compelled " in the police station ever satisfy a court
that there was compulsion. Excruciating agony can be produced in
the human frame by exquisite tortures without leaving a single scar
and how can the victim discharge this heavy onus ?
It may be said that since the accused is in police custody, he may
be made to confess to suitable third parties. Even confessions
recorded by Magistrates under section 164, Criminal Procedure Code,
have sometimes been rejected by courts because they found that
they were not voluntarily made. Therefore, rejection of the
confessional portion of the information may be justified. Apart
from the fact that such an interpretation is contrary to the plain
meaning of the section, a prosecutor will not attempt the introduction
of such evidence, because, he knows that he will have great difficulty
9. op. at.
336 CASKS AND COMMENTS
in persuading a judge that the accused mad

convenient third party, who obligingly passed
the police. Af ter all, courts have never giv
judicial confessions except under compellin
indeed must be the cases where an accused
person other than a police officer, as a resu
discovered. If in such cases the confession is also admitted there is
no harm. Though extra-judicial confessions are generally rejected as
worthless from the point of view of weight, they are received as
relevant evidence. What then is the harm in receiving these rare
extra-judicial confessions made by persons in police custody? If there
is a suspicion that they are tainted, is not the taint washed off by the
discovery of a fact ?
How to reconcile this view that section 27 deals only with infor-
mation given to persons other than police officers, with section 162,
Criminal Procedure Code ? Suppose A commits a murder and while
under arrest, is admitted into a hospital for treatment. The accused
will be in police custody, and, one day in a remorseful mood he may
tell the doctor or the nurse attending on him where he has hidden the
jewels which he had stolen after committing the murder. The doctor
or nurse will naturally communicate this information to the police and
the jewels will be recovered. If the accused is cured of his malady
and brought up for trial, the doctor or nurse could give evidence of
all that A told him or her. This is permissible under section 27
because, the accused person was in police custody, his information
was to one who was not a police officer; therefore, so much of such
information, even though it amounts to a conf ession is receivable in
evidence, because it has led to the discovery of a fact, namely, the
jewels and their hiding place. But how is the prosecution to
establish that the jewels were discovered in consequence of the
information given by the accused. The police officer would not be
able to give this evidence because of the prohibition in section 162(1),
Criminal Procedure Code. But section 162(2) would enable such
evidence to be given.
Further, this interpretation of the section would not produce the
anomaly discussed in Upaclhyayďs case.10 If section 27 is an exception
only to section 26, the person giving the information must satisfy the
1Ü. op. ext.
SECTION 27 OF THE INDIAN EVIDENCE ACT (1 OF 1872) 337
conditions of section 26, that is, he must be an accused person in

police custody. And, what is more, one need not accuse Sir James
Stephen of accidental omissions.
The effect of sections 25 to 27 of the Evidence Act and section 162
Criminal Procedure Code, may be stated thus :
(1) All confessions by accused persons, whether or not in
police custody, to police officers, and whether they lead to
the discovery of facts or not are irrelevant. (Section 25).
(2) All confessions to persons other than police officers by
accused persons in police custody are also irrelevant.
(Section 26).
(3) If a confession by an accused person in police custody to
a person other than a police officer, leads to the discovery
of a fact, even the confession is provable. (Section 27).
(4) Information to police by an accused person whether in
police custody or not and whether it leads to the discovery
of a fact or not is irrelevant. [Section 162(1)].
(5) A police officer can give evidence that, on information
received from a person to whom the accused gave infor-
mation, a fact was discovered. [Section 162(2)].
Vepa P. Sarathi*
* Research Officer, Indian Law Institute.
Printed For: Gautam Gupta, SCC Online MyLOFT Remote Access
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(1966) 1 SCR 134 : AIR 1966 SC 119 : 1966 Cri LJ 100

(BEFORE K. SUBBA RAO, RAGHUBAR DAYAL AND R.S. BACHAWAT, JJ.)
AGHNOO NAGESIA … Appellant;

Versus
STATE OF BIHAR … Respondent.
Criminal Appeal No. 37 of 1965* , decided on May 4, 1965
K.K. Jain, Advocate (at State expense), for the Appellant;
S.P. Varma and R.N. Sachthey, Advocates, for the Respondent.
R.S. BACHAWAT, J.— The appellant was charged under Section 302 of the Indian
Penal Code for murdering his aunt, Ratni, her daughter, Chamin, her son-in-law,
Somra and Dilu, son of Somra. He was convicted and sentenced to death by the
Judicial Commissioner of Chotanagpur. The High Court of Patna accepted the death
reference, confirmed the conviction and sentence and dismissed the appeal preferred
by the appellant. The appellant now appeals to this Court by special leave.
2. The prosecution case is that on August 11, 1963 between 7 a.m. and 8 a.m. the
appellant murdered Somra in a forest known as Dungijharan Hills and later Chamin in
Kesari Garha field and then Ratni and Dilu in the house of Ratni at Village Jamtoli.
3. The first information of the offences was lodged by the appellant himself at Police
Station Palkot on August 11, 1963 at 3.15 p.m. The information was reduced to
writing by the officer-in-charge, Sub-Inspector H.P. Choudhury, and the appellant
affixed his left thumb-impression on the report. The Sub-Inspector immediately took
cognisance of the offence, and arrested the appellant the next day, the Sub-Inspector
in the company of the appellant went to the house of Ratni, where the appellant
pointed out the dead bodies of Ratni and Dilu and also a place in the orchard of Ratni
covered with bushes and grass, where he had concealed a tangi. The appellant then
took the Sub-Inspector and witnesses to Kasiari garha khet and pointed out the dead
body of Chamin lying in a ditch covered with Ghunghu. The appellant then took the
Sub-Inspector and the witnesses to Dungijharan Hills, where he pointed out the dead
body of Somra lying in the slope of the hills to the north. The Sub-Inspector also
recovered from the appellant's house a chadar stained with human blood. The
evidence of PW 6 shows that the appellant had gone to the forest on the morning of
August 11, 1963.
4. The medical evidence discloses incised wounds on all the dead bodies. The
injuries were caused by a sharp-cutting weapon such as a tangi. All the four persons
were brutally murdered.
5. There is no eyewitness to the murders. The principal evidence against the
appellant consists of the first information report, which contains a full confession of
guilt by the appellant. If this report is excluded, the other evidence on the record is
insufficient to convict the appellant. The principal question in the appeal is whether
the statement or any portion of it is admissible in evidence.
6. The first information report reads as follows:
“My name is Aghnu Nagesia. (1) My father's name is Lodhi Nagesia. I am a
resident of Lotwa, Tola Jamtoli, Thana Palkot, District Ranchi. Today, Sunday, date
not known, at about 3 p.m. I having come to the P.S. make statement before you
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the S.I. of Police (2) that on account of my Barima (aunt) Mussammat having given
away her property to her daughter and son-in-law quarrels and troubles have been
occurring among us. My Barima has no son and she is a widow. Hence on her death
we shall be owners of her-lands and properties and daughter and son-in-law of
Barima shall have no right to them. She lives separate from us, and lives in her
house with her daughter and son-in-law and I live with my brother separately in my
house. Our lands are separate from the time of our father. (3) Today in the morning
at about 7-8 a.m. I had gone with a tangi to Duni Jharan Pahar to cut shrubs for
fencing. I found Somra sitting alone there who was grazing cattle there. (4) Seeing
him I got enraged and dealt him a tangi blow on the filli (calf) of right leg, whereby
he toppled down on the ground. Thereupon I dealt him several Chheo (blows) on
the head and the face, with the result that he became speechless and died. At that
time there was none near about on that Pahar. (5) Thereafter I came to the Kesari
Garu field where Somra's wife Chamin was weeding out grass in the field. (6) I
struck her also all of a sudden on the head with the said tangi whereby she dropped
down on the ground and died then and there. (7) Thereafter I dragged her to an
adjoining field and laid her in a ditch to the north of it and covered her body with
Gongu (Pala ke Chhata) so that people might not see her. There as no person then
at that place also. (8) Thereafter I armed with that tangi went to the house of my
Barima to kill her. When I reached there, I found that she was sitting near the
hearth which was burning. (9) Reaching there all of a sudden I began to strike her
on the head with tangi whereupon she dropped down dead at that very place. (10)
Near her was Somra's son aged about 3-4 years. (11) I also struck him with the
tangi. He also fell down and died. (12) I finished the line of my Barima so that no
one could take share in her properties. (13) I hid the tangi in the jhari of my
Barima's house. (14) Later on I narrated the occurrence to my chacha (father's
brother) Lerha that I killed the aforesaid four persons with tangi. After sometime
(15) I started for the P.S. to lodge information and reaching the P.S. I make this
statement before you. (16) My Barima had all along been quarrelling like a Murukh
(foolish woman) and being vexed, I did so. (17) All the dead bodies and the tangi
would be lying in those places. I can point them out. (18) This is my statement. I
got it read over to me and finding, it correct, I affixed my left thumb-impression.”
7. We have divided the statement into 18 parts. Parts 1, 15 and 18 show that the
appellant went to the police station to make the report. Parts 2 and 16 show his
motive for the murders. Parts 3, 5, 8 and 10 disclose the movements and
opportunities of the appellant before the murders. Part 8 also discloses his intention.
Parts 4, 6, 9 and 11 disclose that the appellant killed the four persons. Part 12 disclose
the killing and the motive. Parts 7, 13 and 17 disclose concealment of a dead body
and a tangi and his ability to point out places where the dead bodies and the tangi
were lying. Part 14 discloses the previous confession by the appellant. Broadly
speaking, the High Court admitted in evidence parts 1, 2, 3, 5, 7, 8, 10, 13, 15, 16,
17 and 18.
8. On behalf of the appellant, it is contended that the entire statement is a
confession made to a police officer and is not provable against the appellant, having
regard to Section 25 of the Indian Evidence Act, 1872. On behalf of the respondent, it
is contended that Section 25 protects only those portions of the statement which
disclose the killings by the appellant and the rest of the statement is not protected by
Section 25.
9. Section 25 of the Evidence Act is one of the provisions of law dealing with
confessions made by an accused. The law relating to confessions is to be found
generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the
Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be
found under the heading “Admissions”. Confession is a species of admission, and is
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dealt with in Sections 24 to 30. A confession or an admission is evidence against the

maker of it, unless its admissibility is excluded by some provision of law. Section 24
excludes confessions caused by certain inducements, threats and promises. Section 25
provides: “No confession made to a police officer, shall be proved as against a person
accused of an offence”. The terms of Section 25 are imperative. A confession made to
a police officer under any circumstances is not admissible in evidence against the
accused. It covers a confession made when he was free and not in police custody, as
also a confession made before any investigation has begun. The expression “accused
of any offence” covers a person accused of an offence at the trial whether or not he
was accused of the offence when he made the confession. Section 26 prohibits proof
against any person of a confession made by him in the custody of a police officer,
unless it is made in the immediate presence of a Magistrate. The partial ban imposed
by Section 26 relates to a confession made to a person other than a police officer.
Section 26 does not qualify the absolute ban imposed by Section 25 on a confession
made to a police officer. Section 27 is in the form of a proviso, and partially lifts the
ban imposed by Sections 24, 25 and 26. It provides that when any fact is deposed to
as discovered in consequence of information received from a person accused of any
offence, in the custody of a police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the fact thereby discovered,
may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any
statement made by any person to a police officer in the course of an investigation for
any purpose at any enquiry or trial in respect of the offence under investigation, save
as mentioned in the proviso and in cases falling under sub-section (2), and it
specifically provides that nothing in it shall be deemed to affect the provisions of
Section 27 of the Evidence Act. The words of Section 162 are wide enough to include a
confession made to a police officer in the course of an investigation. A statement or
confession made in the course of an investigation may be recorded by a Magistrate
under Section 164 of the Code of Criminal Procedure subject to the safeguards
imposed by the section. Thus, except as provided by Section 27 of the Evidence Act, a
confession by an accused to a police officer is absolutely protected under Section 25 of
the Evidence Act, and if it is made in the course of an investigation, it is also protected
by Section 162 of the Code of Criminal Procedure, and a confession to any other
person made by him while in the custody of a police officer is protected by Section 26,
unless it is made in the immediate presence of a Magistrate. These provisions seem to
proceed upon the view that confessions made by an accused to a police officer or
made by him while he is in the custody of a police officer are not to be trusted, and
should not be used in evidence against him. They are based upon grounds of public
policy, and the fullest effect should be given to them.
10. Section 154 of the Code of Criminal Procedure provides for the recording of the
first information. The information report as such is not substantive evidence. It may be
used to corroborate the informant under Section 157 of the Evidence Act or to
contradict him under Section 145 of the Act, if the informant is called as a witness. If
the first information is given by the accused himself, the fact of his giving the
information is admissible against him as evidence of his conduct under Section 8 of
the Evidence Act. If the information is a non-confessional statement, it is admissible
against the accused as an admission under Section 21 of the Evidence Act and is
relevant, see Faddi v. State of Madhya Pradesh1 explaining Nisar Ali v. State of U.P.2
and Dal Singh v. King-Emperor3 . But a confessional first information report to a police
officer cannot be used against the accused in view of Section 25 of the Evidence Act.
11. The Indian Evidence Act does not define “confession”. For a long time, the
courts in India adopted the definition of “confession” given in Article 22 of Stephen's
Digest of the Law of Evidence. According to that definition, a confession is an
admission made at any time by a person charged with crime, stating or suggesting the
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inference that he committed that crime. This definition was discarded by the Judicial
Committee in Pakala Narayanaswami v. King-Emperor4 . Lord Atkin observed:
“…no statement that contains self exculpatory matter can amount to confession,
if the exculpatory statement is of some fact which if true would negative the offence
alleged to be confessed. Moreover, a confession must either admit in terms the
offence, or at any rate substantially all the facts which constitute the offence. An
admission of a gravely incriminating fact, even a conclusively incriminating fact, is
not of itself a confession, e.g., an admission that the accused is the owner of and
was in recent possession of the knife or revolver which caused a death with no
explanation of any other man's possession.”
These observations received the approval of this Court in Palvinder Kaur v. State of
Punjab5 . In State of U.P. v. Deoman Upadhyaya6 Shah, J. referred to a confession as a
statement made by a person stating or suggesting the inference that he has
committed a crime.
12. Shortly put, a confession may be defined as an admission of the offence by a
person charged with the offence. A statement which contains self-exculpatory matter
cannot amount to a confession, if the exculpatory statement is of some fact which, if
true, would negative the offence alleged to be confessed. If an admission of an
accused is to be used against him the whole of it should be tendered in evidence, and
if part of the admission is exculpatory and part inculpatory, the prosecution is not at
liberty to use in evidence the inculpatory part only. See Hanumant v. State of U.P.7
and Palvinder Kaur v. State of Punjab5 . The accused is entitled to insist that the entire
admission including the exculpatory part must be tendered in evidence. But this
principle is of no assistance to the accused where no part of his statement is self-
exculpatory, and the prosecution intends to use the whole of the statement against
the accused.
13. Now, a confession may consist of several parts and may reveal not only the
actual commission of the crime but also the motive, the preparation, the opportunity,
the provocation, the weapons used, the intention, the concealment of the weapon and
the subsequent conduct of the accused. If the confession is tainted, the taint attaches
to each part of it. It is not permissible in law to separate one part and to admit it in
evidence as a non-confessional statement. Each part discloses some incriminating fact
i.e. some fact which by itself or along with other admitted or proved facts suggests the
inference that the accused committed the crime, and though each part taken singly
may not amount to a confession, each of them being part of a confessional statement
partakes of the character of a confession. If a statement contains an admission of an
offence, not only that admission but also every other admission of an incriminating
fact contained in the statement is part of the confession.
14. If proof of the confession is excluded by any provision of law such as Section
24, Section 25 and Section 26 of the Evidence Act, the entire confessional statement
in all its parts including the admissions of minor incriminating facts must also be
excluded, unless proof of it is permitted by some other section such as Section 27 of
the Evidence Act. Little substance and content would be left in Sections 24, 25 and 26
if proof of admissions of incriminating facts in a confessional statement is permitted.
15. Sometimes, a single sentence in a statement may not amount to a confession
at all. Take a case of a person charged under Section 304-A of the Indian Penal Code
and a statement made by him to a police officer that “I was drunk; I was driving a car
at a speed of 80 miles per hour; I could see A on the road at a distance of 80 yards; I
did not blow the horn; 1 made no attempt to stop the car; the car knocked down A”.
No single sentence in this statement amounts to a confession, but the statement read
as a whole amounts to a confession of an offence under Section 304-A of the Indian
Penal Code, and it would not be permissible to admit in evidence each sentence
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separately as a non-confessional statement. Again, take a case where a single
sentence in a statement amounts to an admission of an offence. ‘A’ states “I struck ‘B’
with a tangi and hurt him”. In consequence of the injury ‘B’ died. ‘A’ committed an
offence and is chargeable under various sections of the Indian Penal Code. Unless he
brings his case within one of the recognised exceptions, his statement amounts to an
admission of an offence, but the other parts of the statement such as the motive, the
preparation, the absence of provocation, concealment of the weapon and the
subsequent conduct, all throw light upon the gravity of the offence and the intention
and knowledge of the accused, and negatives the right of private defence, accident
and other possible defences. Each and every admission of an incriminating fact
contained in the confessional statement is part of the confession.
16. If the confession is caused by an inducement, threat or promise as
contemplated by Section 24 of the Evidence Act, the whole of the confession is
excluded by Section 24. Proof of not only the admission of the offence but also the
admission of every other incriminating fact such as the motive, the preparation and
the subsequent conduct is excluded by Section 24. To hold that the proof of the
admission of other incriminating facts is not barred by Section 24 is to rob the section
of its practical utility and content. It may be suggested that the bar of Section 24 does
not apply to the other admissions, but though receivable in evidence, they are of no
weight, as they were caused by inducement, threat or promise. According to this
suggestion, the other admissions are relevant, but are of no value. But we think that
on a plain construction of Section 24, proof of all the admissions of incriminating facts
contained in a confessional statement is excluded by the section. Similarly, Sections
25 and 26 bar not only proof of admissions of an offence by an accused to a police
officer or made by him while in the custody of a police officer but also admissions
contained in the confessions statement of all incriminating facts related to the offence.
17. A little reflection will show that the expression “confession” in Sections 24 to 30
refers to the confessional statement as a whole including not only the admissions of
the offence but also all other admissions of incriminating facts related to the offence.
Section 27 partially lifts the ban imposed by Sections 24, 25 and 26 in respect of so
much of the information whether it amounts to a confession or not, as relates
distinctly to the fact discovered in consequence of the information, if the other
conditions of the section are satisfied. Section 27 distinctly contemplates that an
information leading to a discovery may be a part of the confession of the accused and
thus fall within the purview of Sections 24, 25 and 26. Section 27 thus shows that a
confessional statement admitting the offence may contain additional information as
part of the confession. Again, Section 30 permits the Court to take into consideration
against a co-accused a confession of another accused affecting not only himself but
the other co-accused. Section 30 thus shows that matters affecting other persons may
form part of the confession.
18. If the first information report is given by the accused to a police officer and
amounts to a confessional statement, proof of the confession is prohibited by Section
25. The confession includes not only the admission of the offence but all other
admissions of incriminating facts related to the offence contained in the confessional
statement. No part of the confessional statement is receivable in evidence except to
the extent that the ban of Section 25 is lifted by Section 27.
19. Our attention is not drawn to any decision of this Court or of the Privy Council
on the question whether apart from Section 27, a confessional first information report
given by an accused is receivable in evidence against him. Decisions of the High
Courts on this point are hopelessly conflicting. They contain all shades of opinion
ranging from total exclusion of the confession to total inclusion of all admissions of
incriminating facts except the actual commission of the crime. In Harji v. Emperor8
and Noor Muhammad v. Emperor9 the Lahore High Court held that the entire report
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formed a single connected story and no part of it had in Emperor v. Harman Kisha10
the Bombay High Court held that the entire confessional report dealing with events on
the night of the offence was hit by Section 25, and it could not be said that portions of
it dealing with the motive and the opportunity were not parts of the confession. In
King-Emperor v. Kommoju Brahman11 the Patna High Court held that no part of the
confessional first information report was receivable in evidence, the entire report
formed a single connected story and no part of it had any meaning or significance
except in relation to the whole, and it would be wrong to extract parts of the
statement and treat them as relevant. This case was followed in Adi Moola Padayachi
v. State12 and the Court admitted only the portion of the confessional first information
report which showed it was given by the accused and investigation had started
thereon. In State of Rajasthan v. Shiv Singh13 the Court admitted in evidence the last
part of the report dealing with the movements of the accused after the commission of
the offence, but excluded the other parts of the statement including those relating to
motive and opportunity. In Legal Remembrancer v. Lalit Mohan Singh Roy14 the
Calcutta High Court admitted in evidence the narrative of the events prior to the night
of the occurrence disclosing the motive of the offence. This case was followed by the
Nagpur Court in Bharosa Ramdayal v. Emperor15 . In Kartar Singh v. State16 the Court
admitted in evidence the introductory part and the portion narrating the motive and
the opportunity. In Ram Singh v. State17 the Rajasthan High Court held that where it
is possible to separate parts of the first information report by an accused from that in
which he had made a confession, that part which can be so separated should be
admitted in evidence, and on this view, admitted a part of the report relating to
motive and subsequent conduct including the statement that the accused had left the
deceased lying wounded and breathing in the tibari and there was no hope of her
surviving and he had come having covered her with a cloth. In Lachhuman Munda v.
State of Bihar18 the Patna High Court admitted in evidence portions of the first
information report relating to the motive, the opportunity and the entire narrative of
events before and after the crime. This case was followed in the judgment under
appeal. Some of the decided cases took the view that if a part of the report is properly
severable from the strict confessional part, then the severable part could be tendered
in evidence. We think that the separability test is misleading, and the entire
confessional statement is hit by Section 25 and save and except as provided by
Section 27 and save and except the formal part identifying the accused as the maker
of the report, no part of it could be tendered in evidence.
20. We think, therefore, that save and except Parts 1, 15 and 18 identifying the
appellant as the maker of the first information report and save and except the portions
coming within the purview of Section 27, the entire first information report must be
excluded from evidence.
21. Section 27 applies only to information received from a person accused of an
offence in the custody of a police officer. Now, the Sub-Inspector stated he arrested
the appellant after he gave the first information report leading to the discovery. Prima
facie therefore, the appellant was not in the custody of a police officer when he gave
the report, unless it can be said that he was then in constructive custody. On the
question whether a person directly giving to police officer information which may be
used as evidence against him may be deemed to have submitted himself to the
custody of the police officer within the meaning of Section 27, there is conflict of
opinion. See the observations of Shah, J. and Subba Rao, J. in State of U.P. v. Deoman
Upadhyaya6 . For the purposes of the case, we shall assume that the appellant was
constructively in police custody and therefore the information contained in the first
information report leading to the discovery of the dead bodies and the tangi is
admissible in evidence. The entire evidence against the appellant then consists of the
fact that the appellant gave information as to the place where the dead bodies were
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lying and as to the place where he concealed the tangi, the discovery of the dead
bodies and the tangi in consequence of the information, the discovery of a blood-
stained chadar from the appellant's house and the fact that he had gone to Dungi
Jharan Hills on the morning of August 11, 1963. This evidence is not sufficient to
convict the appellant of the offences under Section 302 of the Indian Penal Code.
22. In the result, the appeal is allowed, the conviction and sentence passed by the
Courts below are set aside, and the appellant is directed to be set at liberty forthwith.
———
*
Appeal by Special Leave from the Judgment and Order dated 9th November, 1964 of the Patna High Court in
Criminal Appeal No. 200 of 1964 and Death Reference No. 9 of 1964.
1 Criminal Appeal No. 210 of 1963 decided on January 24, 1964
2 AIR 1957 SC 366
3
LR 44 IA 137
4 (1939) LR 66 IA 66, 81
5 (1953) SCR 94, 104
6
(1961) 1 SCR 14, 21
7
(1952) SCR 1091, 1111
8 AIR 1918 Lah 69
9
(1925) 90 IC 148
10
(1935) ILR 59 Bom 120
11 (1940) ILR Patna, 301, 308, 314
12
(1960) MWN 528
13 AIR 1952 Rajasthan, 3
14 (1922) ILR 49 Cal 167
15
AIR 1941 Nag 86
16 AIR (1952) Papsu 98
17 (1952) ILR 2 Rajasthan 93
18
AIR 1964 Patna 210

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1959 SCR 1141 : AIR 1958 SC 953 : 1958 Cri LJ 1434

(BEFORE BHUVANESHWAR PRASAD SINHA AND SYED JAFER I MAM, JJ.)
BADRI RAI & ANOTHER … Appellants;

Versus
STATE OF BIHAR … Respondent.
Criminal Appeal No. 79 of 1956* , decided on August 18, 1958
B.R.L. Iyengar. Advocate, for Appellant 1;
S.P. Sinha, Senior Advocate,(P.C. Agarwala, Advocate, with him), for Appellant 2;
R.C. Prasad, Advocate, for the Respondent.
BHUVANESHWAR PRASAD SINHA, J.— This appeal by special leave, is directed against
the concurrent judgments and orders of the courts below, convicting the two
appellants under Section 120-B read with Section 165-A of the Indian Penal Code, and
sentencing them to rigorous imprisonment for 18 months, and to pay a fine of Rs 200
each, and in default of payment of fine, to undergo further rigorous imprisonment for 6
months. A separate conviction under Section 165-A has been recorded in respect of
the first appellant, Badri. Under this head, he has been sentenced to rigorous
imprisonment for 18 months, the sentence to run concurrently with the sentence
under the common charge.
2. The facts as found by the courts below, which could not be sucessfully
challenged before us, are as follows: The second appellant, Ramji Sonar, is a gold
smith by profession, and runs a shop on the main road in the Village Naogachia. In
that village, there is a police station, and the shop in question is situated in between
the police station building and the residential quarters of the Inspector of police, who
was the First Informant in the case, resulting in the conviction and sentences of the
appellants, as stated above. The first appellant, Badri, runs a school for small boys in
the same village, about 50 yards away from the shop aforesaid, of the second
appellant. On August 22, 1953, the First Informant, who, holding the position of an
Inspector of Police, was in charge of the police station, made a seizure of certain
ornaments and molten silver from a vacant building in front of the house of the second
appellant, Ramji. Those ornaments were being melted by six strangers coming from
distant places, with implements for melting, said to have been supplied by Ramji. The
seizure was made on the suspicion that the ornaments and the molten silver were
stolen property, which were to be sold to Ramji in a shape which could not be
identified with any stolen property. After making the seizure-list of the properties,
thus seized, the police officer arrested Ramji, as also the other six strangers. Ramji
was released on bail that very day. Police investigations into the case, thus started,
followed. During that period, on August 24, 1953, at about 7.30 p.m., the Inspector
was on his way from his residential quarters to the police station, when both the
appellants accosted him on the road, and Ramji asked him to hush up the case for a
valuable consideration. The Inspector told them that he could not talk to them on the
road, and that they should come to the police station. Thereafter, the Inspector
reported the matter to his superior officer, the DSP (PW 8) and to the Sub-Inspector,
PW 9, attached to the same police station. On August 31, the same year, the first
appellant, Badri, came to the police station, saw the Inspector in the central room of
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the thana, and offered to him a packet wrapped in a piece of old newspaper,
containing Rs 500 in currency notes. He told the Inspector, (PW 1) that the second
appellant, Ramji, had sent the money through him in pursuance of the talk that they
had with him, in the evening of August 24, as a consideration for hushing up the case
that was pending against Ramji. At the time the offer was made, a number of police
officers, besides a local merchant (PW 7), were present there. The Inspector at once
drew up the first information report of the offer of the bribe on his own statement, and
prepared a seizure-list of the money, thus offered, and at once arrested Badri, and put
him in the thana lock-up. After the usual investigation, the appellants were placed on
their trial, with the result indicated above.
3. Both the courts below have found that the prosecution case, a summary of which
has been given above, has been proved by good and reliable evidence, and that the
defence case that the prosecution was started by the Inspector out of spite and in
order to defend himself against the consequences of wrongfully arresting Ramji, was
unfounded. We are not impressed with the halting criticism of the evidence adduced in
this case on behalf of the prosecution, and accepted by the courts below. Ordinarily,
this Court does not interfere with concurrent findings of fact.
4. The only serious question raised in this appeal, is the point raised on behalf of
the second appellant, Ramji, as to whether the statement made by the first appellant,
Badri, on March 31, 1953, that he had been sent by the second appellant with the
money to be offered by way of bribe to the police officer, was admissible against him.
The learned counsel for the appellant was not able clearly to formulate his grounds of
objection to the admissibility of that piece of evidence, which is the basis of the charge
against both the accused persons. Section 10 of the Evidence Act, is a complete
answer to this contention. The section is in these terms:
“10. Where there is reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, anything said done
or written by any one of such persons in reference to their common intention, after
the time when such intention was first entertained by any one of them, is a relevant
fact as against each of the persons believed to be so conspiring, as well for the
purpose of proving the existence of the consipiracy as for the purpose of showing
that any such person was a party to it.”
The incident of August 24, when both the appellants approached the Inspector with
the proposal that he should hush up the case against the second appellant, for which
he would be amply rewarded, is clear evidence of the two persons having conspired to
commit the offence of bribing a public servant in connection with the discharge of his
public duties. There cannot, therefore, be the least doubt that the court had
reasonable grounds to believe that the appellants had entered into a conspiracy to
commit the offence. Therefore, the charge under Section 120-B had been properly
framed against both of them. That being so, anything said or done by any one of the
two appellants, with reference to the common intention, namely, the conspiracy to
offer bribe, was equally admissible against both of them. The statement made by the
first appellant on August 31, that he had been sent by the second appellant to make
the offer of the bribe in order to hush up the case which was then under investigation,
is admissible not only against the maker of the statement — the first appellant — but
also against the second appellant, whose agent the former was, in pursuance of the
object of the conspiracy. That statement is admissible not only to prove that the
second appellant had constituted the first appellant his agent in the perpetration of
the crime, as also to prove the existence of the conspiracy itself. The incident of
August 24, is evidence that the intention to commit the crime had been entertained by
both of them on or before that date. Anything said or done or written by any one of
the two conspirators on and after that date until the object of the conspiracy had been
accomplished, is evidence against both of them.
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5. It was faintly suggested on behalf of the second appellant, that the charge under
Section 120-B of the Indian Penal Code, had been deliberately added by the
prosecution in order to make the first appellant's statement of August 31, admissible
against the second appellant, as otherwise, it could not have been used as evidence
against him. As already indicated, the incident of August 24, is a clear indication of
the existence of the conspiracy, and the court was perfectly justified in drawing up the
charge under Section 120-B also. It is no answer in law to say that unless the charge
under that section had been framed, the act or statement of one could not be
admissible against the other. Section 10 of the Evidence Act, has been deliberately
enacted in order to make such acts and statements of a co-conspirator admissible
against the whole body of conspirators, because of the nature of the crime. A
conspiracy is hatched in secrecy, and executed in darkness. Naturally, therefore, it is
not feasible for the prosecution to connect each isolated act or statement of one
accused with the acts or statements of the others, unless there is a common bond
linking all of them together. Ordinarily, specially in a criminal case, one person cannot
be made responsible for the acts or statements of another. It is only when there is
evidence of a concerted action in furtherance of a common intention to commit a
crime, that the law has introduced this rule of common responsibility, on the principle
that every one concerned in a conspiracy, is acting as the agent of the rest of them. As
soon as the court has reasonable grounds to believe that there is identity of interest or
community of purpose between a number of persons, any act done, or any statement
or declaration made, by any one of the co-conspirators, is, naturally, held to be the act
or statement of the other conspirators, if the act or the declaration has any relation to
the object of the conspiracy. Otherwise, stray acts done in darkness in prosecution of
an object hatched in secrecy, may not become intelligible without reference to the
common purpose running through the chain of acts or illegal omissions attributable to
individual members of the conspiracy.
6. It was also suggested that the statement made by the first appellant on August
31, about the purpose of the payment, having been made after the payment, was not
admissible in evidence, because the object of the conspiracy had been accomplished
before the statement in question was made. Reliance was placed in this connection
upon the decision of their Lordships of the Judicial Committee in Mirza Akbar v. King-
Emperor1 . But that decision is itself an answer to the contention raised. The payment
was made, and the statement that it was being made with a view to hushing up the
case against the second appellant, is a part of the same transaction, that is to say, the
statement accompanied the act of payment of the bribe. Hence, it cannot be said that
the statement was made after the object of the conspiracy had already been
accomplished. The object of the conspiracy was the hushing up of the criminal case
against the second appellant, by bribing the public servant, who was in charge of the
investigation of the case. The object of the conspiracy was yet far from being
accomplished, when the statement in question was made. The leading case on the
subject is that of R. v. Blake2 . That decision is an authority both for the positive and
the negative aspects of the question. It lays down what is admissible and what is not
admissible. It held that the documents actually used in effectuating the objects of the
conspiracy, were admissible, and that those documents which had been created by
one of the conspirators after the object of the conspiracy had been achieved, were not
admissible. Section 10 of the Evidence Act is on the same lines. It is manifest that the
statement in question in the present case, was made by the first appellant in the
course of the conspiracy, and accompanied the act of the payment of the money, and
is clearly covered by the provisions of Section 10, quoted above. It must, therefore, be
held that there is no substance in the only question of law raised in this appeal. It is
accordingly, dismissed.
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———
*
Appeal by Special Leave from the Judgment and Order dated 7th September, 1955, of the Patna High Court in
Criminal Appeal No. 370 of 1954, arising out of the Judgment and Order dated the 26th July, 1954, of the Court
of the Special Judge at Bhagalpur in Special Case No. 14 of 1954.
1
(1940) 67 IA 336
2 (1844) 6 QB 126 : 115 ER 49

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The Law of Evidence

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The Law of Evidence

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DHARMASHASTRA NATIONAL LAW UNIVERSITY,

READING AND REFERENCE MATERIAL

Subject: Law of Evidence

Course: B.A., LL. B (Hons.), Semester V, Session 2021-22

[This material is a compilation of some recommended Articles and Case

Material Collected and Compiled by:

{FOR INTERNAL CIRCULATION & EDUCATIONAL PURPOSES ONLY}

Stable URL: http://www.jstor.com/stable/44290308

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Shifting Trends in Burden of Proof and Standard of

This note discusses the recommendations of the Committee on

II. Burden of Proof

A. Meaning of 'Burden of Proof'

B. Burden of Proof in case of Reverse Onus Clauses

C Shifting the Burden of Proof on the Accused

D. Burden of Proof in the case of Exceptions

III. Standard of Proof

A Meaning of 'Standard of Proof'

B. Proof beyond Reasonable Doubt

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C 'Clear and Convincing Proof'

The Ministry of Home Affairs constituted the Committee on Reforms of

The terms of reference for the Malimath Committee4 suggest an o

The Malimath Committee sent a detailed questionnaire to over 3000 pe

1 This is the opinion of the Committee expressed in paragraph 1.3 of the V

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out of which only 284 responses we

Interestingly, the task that the Com

The Malimath Committee Report wa

This note seeks to examine the Malimath Committee's recommendations on the

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9 2 MC Sarkar et al., Sarkar's Law of Evidence 1449 (1999) [hereinafter Sarkar].

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afford to be generous.13 The autho

II. Burden of Proof

A. Meaning of * Burden of Proof

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B. Burden of Proof in case of Reverse Onus Clauses and Presumptions

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the Malimath Committee's opinion

Statutory presumptions, which place an evidential burden on the accused, requiring

However, it is submitted that the Malimath Committee's interpretation of these

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Clearly this definition of 'presumption' indicates that Court exercises discretion in

It is therefore clear that "proof beyond reasonable doubt" is not an absolute

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It is further submitted that the

This assumption of the Malimath C

Moreover, the Malimath Committee Report once again relie

C. Shifting the Burden of Proof on the Accused

37 Malimath Committee Report, supra note 1, 1 5.9.

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made out a prima facie case against

D. Burden of Proof in the

46 McKELVEY, supra note 14, at 101.

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III. STANDARD OF PROOF

A. Meaning of ' Standard of Proof

52 This has been discussed previously, see supra note 36.

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B. Proof beyond Reason

The standard of proof on the prosec