Jitendra Chauhan College of Law,

Mumbai

Code of Civil
Procedure
Recording of Evidence by
Court/Court Commissioner

Submitted to Submitted by
Prof. S.V Rajadhyax Hiren Raja
Class: TY L.L.B
Div / Roll no – A 041

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ACKNOWLEDGEMENT
I am overwhelmed in all humbleness and gratefulness to acknowledge my depth to all those
who have helped me to put these ideas, well above the level of simplicity and into something
concrete.
I would like to express my special thanks of gratitude to my teacher Prof. S.V Rajadhyax,
Professor, Law who gave me the golden opportunity to do this wonderful project on the topic
“Recording of Evidence by Court/Court Commissioner”,- which also helped me in doing a
lot of Research. I am thankful to them.

Any attempt at any level can't be satisfactorily completed without the support and guidance of
my parents and friends. I would like to thank my parents who helped me a lot in gathering
different information, collecting data and guiding me from time to time in making this project,
despite of their busy schedules, they gave me different ideas in making this project unique.

Hiren Paresh Raja

TY L.L.B A 041
Jitendra Chauhan College of Law

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Table of Contents
Introduction ............................................................................................................................ 4
The Legal Framework: ........................................................................................................... 4
Procedure for recording of Evidences: .................................................................................. 5
The court room environment while recording of evidence. ................................................... 7
Preservation of Evidence ........................................................................................................ 8
Challenges and Controversies .............................................................................................. 10
Conclusion............................................................................................................................ 11
References/Bibliography ...................................................................................................... 11

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Introduction
One of the most crucial stages in trials of civil suits is recording of evidence of witnesses.
Whereas the Indian Courts and tribunals have conventionally preferred the physical mode of
recording of evidence wherein witnesses are examined on oath in persona or by way of
affidavits, there has been a gradual yet steady shift to increasing use of electronic or audio-
visual means for the purpose in the recent past. We believe that the pace of this shift to
electronic means will inevitably increase on account of and on the back of manifest utility of
electronic media in times such as those presently prevalent and a necessary consequence
thereof will entail, inter alia, a shift to video conferencing/recording of evidence in civil suits.
From this viewpoint and with this foresight, the instant article explores the position of Indian
law on video recording/conferencing of evidence in civil suits as defined by the relevant
provisions of substantive and procedural enactments including the Code of Civil Procedure,
1908 (the ‘Civil Procedure Code’) and producing such recording in evidence in consonance
with the relevant provisions under the Indian Evidence Act, 1872 (the ‘Evidence Act’); and as
evolved and expounded by case law or judicial precedents.

The Legal Framework:

In the context of the legal framework for recording evidence by the court or court commissioner
in civil cases, the relevant legal provisions can vary from one jurisdiction to another. However,
following is an overview based on the Indian legal system, which operates under the Code of
Civil Procedure, 1908.

a. Section 30 - Power to order attendance of witnesses: This section empowers the court
to issue summonses for the attendance of witnesses or the production of documents.

b. Section 131 - Production of documents or other things: This section allows the court
to order the production of documents, electronic records, or other material objects
relevant to the case.

c. Section 132 - Examination of witnesses: This section outlines the procedure for the
examination of witnesses in court.

d. Order XVIII - Examination of Witnesses: This part of the Code of Civil Procedure
provides detailed rules for the examination of witnesses, including:

i. Examination-in-chief: The examination of witnesses by the party who calls

them.

ii. Cross-examination: The examination of witnesses by the opposite party.

iii. Re-examination: Additional examination of witnesses by the party who

originally called them.

iv. Recording of evidence: The court or a court commissioner records the evidence
given by witnesses during their examination.

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 e. Section 75A - Examination of witness by Court: This section allows the court to
conduct an examination of a witness or party if necessary, especially when the witness
is hostile or evasive.

f. Order XXVI - Commissions: This order deals with the appointment of court
commissioners for various purposes, including the examination of witnesses.

g. Section 145 - Power to examine the parties: This section gives the court the authority
to examine parties to the suit as witnesses.

h. Section 155 - Judge to be a competent witness: This section states that a judge may also
be a competent witness in a case.

i. Order XXIII - Affidavits: This order pertains to the use of affidavits as evidence in
civil cases.

j. Section 161 - Right of adverse party as to writing used to refresh memory: This section
outlines the procedure for allowing the adverse party to inspect and cross-examine
witnesses regarding documents used to refresh a witness's memory.

The Code of Civil Procedure, 1908, provides a comprehensive legal framework for the
recording of evidence by the court or court commissioner in civil cases in India. The specific
rules and procedures can vary depending on the nature of the case and the court's discretion.
It's essential to refer to the relevant provisions of the Code and any applicable amendments for
a detailed understanding of the legal framework in a specific jurisdiction.

Procedure for recording of Evidences:

In The procedures for recording evidence by the court or court commissioner in accordance
with the Code of Civil Procedure, 1908 in India are primarily laid out in Order XVIII and Order
XXVI. Here's an overview of the key procedures:

Order XVIII - Examination of Witnesses

a. Examination-in-Chief (Order XVIII, Rule 4): This is the first step in recording the
evidence of witnesses. The party who has called the witness examines them to elicit
relevant information. The following steps are involved in this process:

• The witness is questioned by the party who called them.

• The questions should be open-ended and designed to bring out the facts.
• The examination-in-chief is typically not confrontational, as it is conducted by
the party who called the witness.
b. Cross-Examination (Order XVIII, Rule 5): After the examination-in-chief, the opposite
party has the opportunity to cross-examine the witness. Cross-examination is meant to
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 test the credibility and accuracy of the evidence given during the examination-in-chief.
Key points to consider include:

• The cross-examiner can ask leading questions (those that suggest the desired
answer).
• Cross-examination is generally more confrontational than examination-in-chief.

c. Re-Examination (Order XVIII, Rule 6): Following cross-examination, the party who
called the witness has the right to re-examine them. The purpose of re-examination is
to clarify any issues raised during cross-examination. Re-examination should be limited
to the scope of the cross-examination.

d. Recording of Evidence (Order XVIII, Rule 9): While the evidence is being given, it
should be recorded. The court or the person appointed for the purpose (such as a court
commissioner) should meticulously record the questions and answers.

Order XXVI - Commissions

a. Appointment of a Court Commissioner: When a court commissioner is appointed to
record evidence, the court issues a commission specifying the scope and purpose of the
commissioner's duties. The commissioner's role is to conduct the examination of
witnesses or to perform other functions as directed by the court.

b. Recording of Evidence by Court Commissioner: The court commissioner conducts the

examination of witnesses in accordance with the commission's terms. The procedures
for recording evidence by a court commissioner are similar to those followed by the
court, including examination-in-chief, cross-examination, and re-examination.

c. Submission of Commissioner's Report: After completing the examination of witnesses,

the court commissioner submits a report to the court. The report typically includes the
evidence recorded, any objections raised, and the commissioner's findings.

d. Cross-Examination of Commissioner's Report: If any party is dissatisfied with the

commissioner's report, they can apply to the court for cross-examination of the
commissioner on the contents of the report.

e. Court's Consideration: The court considers the commissioner's report and any
objections raised by the parties before proceeding with the case.

It's important to note that the Code of Civil Procedure allows for flexibility in conducting the
examination of witnesses and recording of evidence, and these procedures can vary depending
on the specific case, the discretion of the court, and the nature of the dispute. Legal

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professionals, such as lawyers and court officials, play a crucial role in ensuring that the
procedures are followed correctly.

The court room environment while recording of

evidence.
The courtroom environment during the recording of evidence by the court or a court
commissioner in accordance with the Code of Civil Procedure, 1908, is a formal and controlled
setting. It is essential to maintain decorum and ensure that the legal process is conducted with
fairness and transparency. Here are some key aspects of the courtroom environment:

a. Judge's Bench: The judge presides over the proceedings from an elevated bench. The
judge's bench is the focal point of the courtroom, and it is where the judge issues orders,
makes rulings, and maintains control over the proceedings.

b. Witness Box: The witness box is where witnesses stand or sit while giving their
testimony. It is typically located near the judge's bench, ensuring that the witness can
be seen and heard by all parties, the judge, and any observers.

c. Court Reporter/Stenographer: A court reporter or stenographer is often present to create

a verbatim record of the proceedings. They use stenographic machines or digital
recording equipment to transcribe the testimony and other statements made during the
hearing.

d. Legal Counsel: Lawyers representing the parties involved in the case sit at tables or
designated areas. They have the opportunity to cross-examine witnesses and present
their arguments and objections.

e. Plaintiffs and Defendants: Parties to the case, such as plaintiffs and defendants, may
also be present. They sit with their legal counsel and have the right to observe and
participate in the proceedings.

f. Court Officials: Court officials, including clerks, bailiffs, and court administrators, are
responsible for managing the administrative aspects of the courtroom and ensuring that
the proceedings run smoothly.

g. Gallery/Observer Area: Courtrooms typically have an area for observers, including

family members, journalists, and the general public. These individuals are expected to
follow courtroom etiquette, remain silent, and not disrupt the proceedings.

h. Security: In some cases, courtrooms may have security personnel to maintain order and
ensure the safety of all individuals present.

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 i. Dress Code: Courtrooms typically have a dress code that requires all participants,
including witnesses, lawyers, and court staff, to dress professionally. This often
includes wearing formal attire, such as suits and gowns.

j. Decorum: Courtroom decorum is essential. Participants are expected to show respect

for the judge, witnesses, opposing parties, and court officials. Talking out of turn,
making disruptive noises, or displaying disrespectful behavior is not tolerated.

k. Technology: Depending on the jurisdiction and the level of technological advancement,

courtrooms may be equipped with audio-visual equipment for presentations, video
conferencing, and other technological aids.

l. Evidence and Exhibits: Evidence and exhibits presented during the proceedings are
typically displayed and marked for identification. The court commissioner or judge
ensures that all exhibits are properly handled and preserved.

Maintaining a professional, orderly, and respectful courtroom environment is crucial to the fair
administration of justice. It ensures that all parties have the opportunity to present their case
and that the evidence is recorded accurately and without interference. Court officials, legal
professionals, and participants are expected to adhere to the established rules and norms of the
courtroom.

Preservation of Evidence
Preservation of evidence that is recorded by the court or a court commissioner is essential to
maintain the integrity of the legal process and ensure that the evidence remains accurate and
accessible for reference in future proceedings. Here are key aspects of preserving such
evidence:

a. Safe Storage: All evidence, including documents, transcripts, audio or video recordings,
and physical exhibits, should be securely stored in a designated storage area within the
court's facilities. This storage area should be access-controlled and provide protection
against damage, loss, or tampering.

b. Chain of Custody: The court or court commissioner should maintain a clear and
documented chain of custody for all physical evidence. This means that every person
who handles the evidence should be recorded, and the evidence should be stored
securely to prevent any unauthorized access or tampering.

c. Digital and Electronic Evidence: Digital evidence, such as electronic records, emails,
or video recordings, should be stored in a secure digital format. This may involve
maintaining backups in case of data loss or corruption. Additionally, metadata, which

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 includes information about the creation and handling of electronic evidence, should be
preserved.

d. Labeling and Documentation: All pieces of evidence should be properly labeled and
documented. Each item should have a unique identification number or description, and
this information should be recorded in an evidence log. This documentation helps
ensure that evidence is easily traceable.

e. Retention Policies: The court should have clear retention policies that outline how long
different types of evidence should be preserved. These policies may vary depending on
the nature of the evidence, such as criminal or civil cases, or whether the evidence is
sensitive in nature.

f. Protection Against Environmental Factors: Physical evidence should be protected from

environmental factors like humidity, temperature fluctuations, and exposure to sunlight,
which can deteriorate or damage evidence over time.

g. Security Measures: Access to the evidence storage area should be restricted to

authorized personnel only, such as court officials, judges, and designated custodians.
Surveillance and alarm systems may also be implemented to enhance security.

h. Regular Audits: Periodic audits and checks of the evidence storage facilities should be
conducted to ensure that the evidence remains intact and that there have been no
unauthorized changes or breaches of security.

i. Public Access and Privacy: The court should have policies in place regarding public
access to certain types of evidence, taking into consideration privacy concerns,
confidentiality, and any restrictions imposed by the law.

j. Record Keeping: Detailed records of evidence preservation should be maintained,

including when evidence was received, by whom, and when it was released. These
records are crucial in establishing the chain of custody.

k. Evidence Return and Disposal: After the conclusion of legal proceedings, the court
should have procedures for returning evidence to its rightful owners or for its disposal
in accordance with legal requirements.

Preservation of evidence is vital not only for the current case but also for potential appeals,
future reference, or the reexamination of evidence in related cases. Courts and court
commissioners must diligently follow preservation protocols to maintain the trust and
credibility of the legal system.

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Challenges and Controversies
Recording evidence by the court or court commissioner under the Code of Civil Procedure,
1908, can present various challenges and controversies. These challenges often revolve around
issues related to the admissibility of evidence, the conduct of witnesses, and the procedures
followed. Here are some common challenges and controversies:

a. Admissibility of Evidence: Parties may dispute the admissibility of certain evidence,

arguing that it is irrelevant, hearsay, or otherwise inadmissible under the law. This can
lead to lengthy arguments and court rulings on whether specific evidence should be
admitted.

b. Objections and Cross-Examination: During cross-examination, lawyers may raise

objections to questions asked by opposing counsel. Common objections include leading
questions, speculation, and badgering the witness. The judge must rule on these
objections, and disagreements can arise.

c. Hostile Witnesses: Witnesses sometimes become hostile or uncooperative, which can

complicate the process. The court may need to use special procedures to handle such
witnesses, and parties may contest whether a witness should be declared hostile.

d. Expert Witnesses: The testimony of expert witnesses can be contentious, especially if

the parties disagree on the qualifications or opinions of the expert. The court may need
to assess the expert's credibility and the relevance of their testimony.

e. Conflicts Over Documents: Parties may dispute the authenticity, relevance, or

admissibility of documents or exhibits. These disputes can lead to arguments and court
rulings on the admissibility of the evidence.

f. Examination of Parties: When parties themselves are examined as witnesses, they may
be accused of being untruthful or biased. This can result in confrontational exchanges,
challenges to their credibility, and objections.

g. Complex Technical Issues: In cases involving complex technical or scientific evidence,

such as in patent or intellectual property disputes, controversies may arise regarding the
understanding and interpretation of technical data.

h. Language Barriers: In multilingual jurisdictions, language barriers can pose challenges,

particularly when a witness or a party does not speak the language of the court.
Interpreters may be necessary, which can add complexity to the proceedings.

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 i. Documentary Evidence and Chain of Custody: Issues related to the chain of custody of
documentary evidence may arise, particularly in cases involving records, digital
evidence, or sensitive documents. Parties may dispute whether the evidence has been
tampered with.

j. Cross-Examination of Court Commissioner's Report: If a court commissioner is

involved in recording evidence, parties may have disagreements or concerns regarding
the contents of the commissioner's report, which may lead to cross-examination of the
commissioner.

k. Demeanor of Witnesses: Assessing the demeanor and credibility of witnesses can be

subjective and contentious. Parties may challenge the judge's or commissioner's
assessment of a witness's demeanor.

l. Preservation of Evidence: There may be controversies regarding the preservation of

evidence, particularly in cases where physical evidence or exhibits are involved. Parties
may question whether the evidence has been tampered with or damaged.

The Code of Civil Procedure provides a framework for addressing these challenges and
controversies, with the court ultimately responsible for making determinations about the
admissibility of evidence, resolving objections, and ensuring that the legal process is conducted
fairly. Legal professionals play a significant role in presenting their case, raising objections,
and addressing these issues during the trial.

Conclusion
In brief, the process of recording evidence by the court or a court commissioner under the Code
of Civil Procedure, 1908, is a fundamental and structured aspect of the legal system. It ensures
transparency, fairness, and adherence to the rule of law in the adjudication of civil cases.
Challenges and controversies related to admissibility, witness conduct, and courtroom decorum
are common but are resolved through the court's meticulous oversight. The accurate recording
of evidence is essential for the legal process to function effectively and deliver justice.

References/Bibliography
Online Sources
• https://www.livelaw.in/pdf_upload/transit-bail-referred-to-full-bench–417240.pdf
• https://www.livelaw.in/pdf_upload/gujarat-high-court-417477.pdf
• https://www.writinglaw.com/what-is-blanket-
order/#:~:text=Meaning%20of%20Blanket%20Order.,for%20a%20non%2Dbaila
ble%20offence.

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• https://www.livelaw.in/news-updates/no-bar-entertaining-anticipatory-bail-plea-
proclamation-8283crpc-issued-during-pendency-allahabad-high-court-
204505#:~:text=The%20Allahabad%20High%20Court%20has,P.C.%20is%20iss
ued.
• https://repositorio.ual.pt/bitstream/11144/5040/1/0%20EN-vol12-n1-
art14.pdf https://blog.finology.in/criminal-law/anticipatory-bail-under-crpc
• https://corporate.cyrilamarchandblogs.com/2021/01/decoding-the-law-on-
anticipatory-bail/
• http://dspace.cusat.ac.in/jspui/bitstream/123456789/11025/1/Genesis%20of%20th
e%20Concept%20of%20Anticipatory%20Bail.PDF
• https://www.indialegallive.com/constitutional-law-news/supreme-court-
news/anticipatory-bail-inching-towards-article-21/

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