Case BriefsSupreme Court

Supreme Court: Explaining the difference between the degree of proof in a criminal proceedings and departmental proceedings, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that the burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct.

Here’s the elaborate law laid down by the Supreme Court in this point:

State of Haryana v. Rattan Singh, (1977) 2 SCC 491

In a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.

“It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. (…) The simple point is, was there some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny.”

Union of India v. P. Gunasekaran, (2015) 2 SCC 610

“In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal.”

The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

Under Articles 226/227 of the Constitution of India, the High Court shall not:

  • reappreciate the evidence;
  • interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
  • go into the adequacy of the evidence;
  • go into the reliability of the evidence;
  • interfere, if there be some legal evidence on which findings can be based.
  • correct the error of fact however grave it may appear to be;
  • go into the proportionality of punishment unless it shocks its conscience.

Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., (2005) 7 SCC 764

  • In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”.
  • Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules.
  • In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings.

Noida Entrepreneurs Association v. NOIDA, (2007) 10 SCC 385

The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public, whereas, the departmental inquiry is to maintain discipline in the service and efficiency of public service.

[Union of India v. Dalbir Singh, 2021 SCC OnLine SC 768, decided on 21.09.2021]


*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsSupreme Court

Supreme Court: A Division Bench of S. Abdul Nazeer and Krishna Murari, JJ. refused to interfere in the judgment passed by the Gujarat High Court whereby the appellants (husband and mother-in-law of the deceased) were found guilty of committing cruelty to the deceased and abetting suicide committed by the deceased. Noting that although the prosecution failed to adduce any direct evidence to establish that accused abetted deceased into committing suicide, the Supreme Court observed:

“Admittedly, in the case at hands, the evidence clearly establishes the offence of cruelty or harassment caused to the deceased and thus the foundation for the presumption [under Section 113-A of the Evidence Act] exists. Admittedly the appellants have led no evidence to rebut the presumption.”

It was prosecution’s case that the accused husband constantly asked the deceased to bring Rs 25,000 from her father. On her failure to do so, the accused husband started frequently beating the deceased, and the accused mother-in-law used to pick up quarrel with her on the pretext that she neither knew how to cook nor did any household work properly. The deceased committed suicide by consuming poison at her matrimonial home for the sole reason that she was unable to bear continuous mental and physical cruelty meted out to her by the appellants in a short span of 8 months of her marriage.

The trial court convicted the appellants for offences punishable under Section 498-A (cruelty to women) and Section 306 (abetment of suicide) of the Penal Code, 1860. On appeal, the High Court confirmed the judgment of the trial court. Aggrieved, the appellants approached the Supreme Court.

At the outset, the Supreme Court noted that Section 113-A of the Evidence Act, provides for presumption as to abetment of suicide by a married woman within seven years of marriage, by her husband or any of his relative. Section 113-A reads thus: “When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband”. Further, the Explanation added to Section 113-A of the Evidence Act clearly provides that ‘cruelty’ shall have the same meaning as in Section 498-A IPC.

Considering first the offence under Section 498-A IPC, the Court noted the consistent evidence of witnesses who were related to the deceased. The Court opined that most often the offence of subjecting the married woman to cruelty is committed within the boundaries of the house which in itself diminishes the chances of availability of any independent witness. It was observed:

“The evidentiary value of the close relatives/interested witness is not liable to be rejected on the ground of being a relative of the deceased. Law does not disqualify the relatives to be produced as a witness though they may be interested witness.”

The Court found that the witnesses (family members) though related to the deceased, were natural witnesses. Their evidence was consistent without any material contradiction and inspired confidence. Thus, from the evidence of prosecution witnesses, the Court concluded it was proved that the deceased was harassed with a view to meet unlawful demand of Rs 25,000. The Court held that the prosecution was successful in proving the charge of cruelty under Explanation (b) of Section 498-A IPC.

Next, the question that fell for consideration was that the prosecution having successfully established the charge of cruelty as laid down in Explanation (b) of Section 498-A IPC and also the fact that the deceased committed suicide by consuming pesticide within seven years of marriage, whether the accused could also be held guilty for the offence punishable under Section 306 IPC with the aid of Section 113-A of the Evidence Act.

The Court noted that the prosecution failed to adduce any direct evidence to establish that the accused abetted deceased into committing suicide. The prosecution placed reliance on Section 113-A of the Evidence Act to establish the charge of abetment against the accused. Relying on its earlier order in Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, the Court concluded that to attract the applicability of Section 113-A of the Evidence Act, three conditions are required to be fulfilled: (i) the woman has committed suicide; (ii) such suicide has been committed within a period of seven years from the date of her marriage; (iii) the accused had subjected her to cruelty.

In the instant case, all the three conditions stood fulfilled. The deceased committed suicide within a period of seven years from the date of her marriage and accused had subjected her to cruelty, as it was confirmed that prosecution was successful in proving the charge of cruelty under Section 498-A IPC.

The Court said that it is no doubt correct that the existence and availability of the above said three circumstances are not to be invoked like a formula to enable the presumption being drawn and the presumption is not an irrebuttable one. However, in the instant case, the evidence clearly established the offence of cruelty or harassment caused to the deceased and, thus, the foundation for the presumption existed. Admittedly, the appellants led no evidence to rebut the presumption.

In such view of the matter, the Supreme Court held that the trial court, as well as the High Court, committed no illegality in holding that the appellants abetted suicide of the deceased. The appeals were therefore dismissed. [Gumansinh v. State of Gujarat, 2021 SCC OnLine SC 660, decided on 3-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Explaining the scope of Section 92 Proviso (6) of the Evidence Act, 1872, the 3-judge bench of NV Ramana, CJ* and Surya Kant and Aniruddha Bose, JJ has held that the said proviso can be resorted to only in cases where the terms of the document leave the question in doubt.

“But when a document is a straightforward one and presents no difficulty in construing it, the proviso does not apply. In this regard, we may state that Section 95 only builds on the proviso 6 of Section 92.”

The Court was of the opinion that if the contrary view is adopted as correct it would render Section 92 of the Evidence Act, otiose and also enlarge the ambit of proviso 6 beyond the main Section itself.

Background

Initially Appellant’s husband was running a business of stationary in the name of “Karandikar Brothers” before his untimely demise in the year 1962. After his demise, she continued the business for some time but later decided to let the Respondent run the same for some time.

The terms of the agreement were:

“The stationary shop by name “Karandikar Brothers” belonging to you of the stationary materials which is situated in the premises described in Para 1 (a) above and in which the furniture etc. as described in Para l(b) above belonging to you is existing is being taken by me for conducting by an agreement for a period of two  years beginning from 1st February 1963 to 31st January 1965.

The rent of the shop described in Para 1 (a) above is to be given by you only to the owner and I am not responsible therefor. I am to pay a royalty amount of Rs. 90 /-(Rupees Ninety only) for taking the said shop for conducting, for every month which is to be paid before the 5th day of every month.”

Time after time, the contract was duly extended. In 1980s, desiring to start her husband’s business again, appellant herein issued a notice requesting the Respondent to vacate the suit premises, However, the Respondent replied to the notice claiming that the sale of business was incidental rather the contract was a rent agreement stricto sensu.

The Trial Court while negating the contention of the Respondent, that the shop premises was given to him on license basis.

The Bombay High Court, however, held that:

“Thus, considering the entirety of the case, in my view, both   the   Courts   below   have   incorrectly   interpreted   the document and the surrounding circumstances which, in my view, indicate that the parties had in fact agreed that the premises were transferred to the appellant on a leave and license basis.”

Analysis

Section 95. Evidence as to document unmeaning in reference to existing facts.—

When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.  Illustration A sells to B, by deed, “my house in Calcutta”. A had no house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed. These facts may be proved to show that the deed related to the house of Howrah.

Section 92. Exclusion of evidence of oral agreement.—

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:…

Proviso (6).—Any fact may be proved which shows in what manner the language of a document is related to existing facts.

The Court explained that Section 92 specifically prohibits evidence of any oral agreement or statement which would contradict, vary, add to or subtract from its terms. If oral evidence could be received to show that the terms of the document were really different from those expressed therein, it would amount to according permission to give evidence to contradict or vary those terms and as such it comes within the inhibitions of Section 92. It could not be postulated that the legislature intended to nullify the object of Section 92 by enacting exceptions to that section.

Considering the facts and materials placed before it, the Court was of the opinion that the contract mandated continuation of the business in the name of ‘Karandikar Brothers’ by paying royalties of Rs. 90 per month.

“Once the parties have accepted the recitals and the contract, the respondent could not have adduced contrary extrinsic parole evidence, unless he portrayed ambiguity in the language. It may not be out of context to note that the extension of the contract was on same conditions.”

The Court, hence, held that the High Court erred in appreciating the ambit of Section 95, which led to consideration of evidence which only indicates breach rather than ambiguity in the language of contract. The evidence also points that the license was created for continuation of existing   business, rather than license/lease of shop premises.

The Court was, hence, of the opinion that if the meaning provided by the High Court is accepted, then it would amount to Courts substituting the bargain by the parties.

“Such interpretation, provided by the High Court violates basic tenants of legal interpretation.”

[Mangala Waman Karandikar v. Prakash Damodar Ranade, 2021 SCC OnLine SC 371 , decided on 07.05.2021]


*Judgment by: CJI NV Ramana

Know Thy Judge| Justice N.V. Ramana

'Lex Mercatoria' by Hasit SethExperts Corner

Introduction

Electronic evidence presents a tall challenge to the traditional rules of authenticating documentary evidence. The notions of primary and secondary evidence evolved for paper documents are difficult to apply to electronic or digital evidence. Provenance of electronic evidence is extremely hard to establish with any certainty in many instances. Hence, Evidence Act, 1872, as amended, provides for a certificate mechanism under Section 65-B(4) to authenticate electronic evidence.

 

Supreme Court of India in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal [1] has held that Section 65-B(4) is a mandatory requirement to admit electronic evidence unless the original electronic document (e.g., a tablet, laptop or mobile phone with a recording)[2] is produced in evidence through the document/device owner’s personal authentication as a witness. Supreme Court, hence, differentiated primary and secondary evidence standards for electronic evidence where secondary evidence for electronic evidence requires the Section 65-B(4) certificate.

 

Supreme Court has also put an interesting exception to the Section 65-B(4)’s certificate requirement: When even after applying to the relevant authority holding the electronic document sought to be proved in evidence and threafter to a court under procedural or evidence law, if the certificate cannot be obtained, then the production of the same is excusable in law. This is the impossibility exception based on two Latin maxims quoted by the court: lex non cogit ad impossibilia (the law does not demand the impossible) and impotentia excusat legem (if an impossibility bars obedience to law, the disobedience of law is excused)[3]. This article explores the judicially created impossibility exception to the certificate requirement under Section 65-B(4) of the Evidence Act, 1872.

I. Authenticating Electronic Evidence

A.  Indian Approach

1.     Authenticating Documentary Evidence

 

Under the Evidence Act, 1872 documentary evidence needs proof of contents[4] of a document by primary[5] (document itself) or secondary evidence[6] of certain types and in specific situations to admit the document in evidence. Five types of secondary evidence of contents of a document are permissible: certified copies, two types of reliably reproduced copies, counterpart against a non-executant and oral accounts of someone who has personally seen the document[7]. There are seven specific situations in which secondary evidence of existence, condition or contents can be given[8]. Signatures and handwriting need to be proved as of those they are attributed to[9].

 

Sir James Fitzjames Stephen, the author of The Indian Evidence Act (I. of 1872): With an Introduction on the Principles of Judicial Evidence describes the purpose of documentary evidence as[10]:

 

One single principle runs through all the propositions relating to documentary evidence. It is that the very object for which writing is used is to perpetuate the memory of what is written down, and to furnish permanent proof of it. In order that full effect may be given to this, two things are necessary, namely, that the document itself should whenever it is possible be put before the Judge for his inspection, and that if it purports to be a final settlement of a previous negotiation, as in the case of a written contract, it shall be treated as final, and shall not be varied by word of mouth. If the first of these rules were not observed the benefit of writing would be lost. There is no use in writing a thing down unless the writing is read. If the second rule were not observed people would never know when a question was settled, as they would be able to play fast and loose with their writings.

 

2.     Authenticating Electronic Evidence

Electronic evidence created a challenge for which the Evidence Act, 1872, as minimally amended over the last century, had no answer. The mutability of electronic record and various forms essentially meant that few,  if any, forms of electronic or digital evidence have the characteristic of being “original”, a necessity under the Evidence Act, 1872’s requirement of original document itself being the primary evidence of its contents unless secondary evidence of such a document is admissible under the said Act. Hence, the law was amended to introduce specific provisions for electronic evidence[11]. Principal among the amendments were authentication amendments introduced by Sections 65-A and 65-B in the  Evidence Act, 1872.

 

The complete code for authenticating electronic evidence is in Sections 65-A and 65-B. The Supreme Court of India in Anvar P.V. v. P.K. Basheer [12] described the procedure as:

 

  1. 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.… 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.

 

The conditions necessary for admitting electronic evidence based on a certificate have been explained as[13]:

  1. 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;

(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.

The Supreme Court in Arjun Panditrao[14] case quoted the above conditions and process for authenticating electronic evidence from Anvar P.V.[15] case with a few added directions, which were:

 

(a) Section 65-B(4) certificate is unnecessary if the device on which an electronic document is first stored is itself produced in court through a witness e.g., owner who operated a laptop, tablet, etc. stepping into the witness box to produce the laptop, mobile, etc. in evidence. If the document is on a computer that cannot be brought to court then the only means of producing the document is by way of a certificate under Section 65-B(4)[16].

 

(b) Section 65-B(4)’s requirements for issuing the certificate are to be read as cumulatively “all of them” instead of text’s “… any of them…”[17].

 

(c) No proof of an electronic record by oral evidence is admissible if the requirements of Section 65-B are not complied with[18].

 

(d) Anvar P.V.[19] case stood clarified to make para 24 therein, “… if an electronic record as such in used a primary evidence under section of the Evidence Act…” to be read without the words “… under Section 62 of the Evidence Act…”[20].

 

(e) A trial court may at any stage before the completion of a trial, order the production of the certificate under Section 65-B(4) subject to a criminal court in criminal trial safeguarding against any prejudice to the accused[21].

 

(f) Authorities to examine the draft rules suggested by the Committee of five Judges (formed in consequence of the Chief Justices Conference held in April 2016) in its November 2018 report for statutory enactment in future. Data retention directions for call detail records issued to the cellular companies and internet service providers till rules and directions are enacted under Section 67-C of the Information Technology Act, 2000[22].

 

(g) The word “and” in Section 65-B(4)’s text “best of his knowledge and belief” has to be read as “or” because a person cannot testify to best of his or her knowledge and belief at the same time[23].

 

B.  A Review of Foreign Approaches

The Supreme Court noted in Arjun Panditrao[24] case (in the main judgment)  that Section 65-B(2)-(5) are reproductions of Section 5 of the UK’s Civil Evidence Act, 1968’s Section 5(2)-(5) with minor changes. But the UK law’s aforementioned section has been repealed by UK’s  Civil Evidence Act, 1995. Main judgment in Arjun Panditrao[25] case is authored by Justice R.F. Nariman on behalf of the Bench that included Justices V. Ramasubramanian and Ravindra Bhat. Justice V. Ramasubramanian has written a supplementing opinion as well. The discussion immediately next is based on Justice V. Ramasubramanian’s supplementing opinion unless noted otherwise.

 

Anonymity of cyberspace has made election documents easily manipulatable and hence suspicious[26]. US approach also uses certificates under Federal Rules of Evidence, Rules 902(13) and (14) but requires notices  to the opposing side. In the UK electronic evidence in civil cases is covered by the Civil Evidence Act, 1995, while electronic evidene in criminal law is governed by the Police and Criminal Evidence Act, 1984 where its Section 9 concerning electronic evidence stood amended by the Youth Justice and Criminal Evidence Act, 1999[27]. In all these reforms in the common law world regarding electronic evidence, essentially more hearsay evidence was made admissible with requirements of notice to the other side whether it be in electronic form or not. Business records exception to the rule against hearsay is now available in most advanced common law countries.

 

India has not undertaken any such comprehensive reform of the rule against hearsay[28], which is the underlying theme of the whole of Evidence Act, 1872 with carefully included exceptions. Justice S. Rangarajan of the Delhi High Court urged the consideration of reform to the hearsay rule way back in 1972[29]. But since long no reforms to the evidence law in India are forthcoming.

 

IV. Primary and Secondary Distinction Remains

 

The judgment in Arjun Panditrao[30] case retains the primary and secondary evidence for electronic evidence in these terms:

 

  1. … All this necessarily shows that Section 65-B 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.

     

Because of retaining primary and secondary evidence distinction for electronic evidence, the Supreme Court has required production of original electronic document in form of pen drive, mobile phone, etc. through the owner of such device stepping into the witness box. When it is impossible to bring “computer” being part of a computer system or computer network then the certificate under Section 65-B(4) can be produced[31].

 

The implicit assumption behind retaining the primary and secondary evidence distinction for electronic evidence is the miniaturisation of computing technology. Pharesology of Section 65-B(2)’s conditions (a)-(d) presumes computers to be of the old mainframe era where data is stored that can be retrieved either as saved or as a printout, etc. as a generated report from data inputted consistently. Computers have evolved such that there may not be many a large monolith mainframe that cannot be produced in court easily rather than mobiles, pen drives, memory cards, tablets or watches that can be produced easily in courts. Rather computing now is a process applied in varied devices like mobile phones, tablets, sensors, smart watches, etc. There are no old style PC computers per se in these devices but they contain the core computing abilities of any common computer. Hence, such devices which are almost pocket sized can easily be produced in court as “originals” through a witness authenticating the device and its contents. This production of a device used for storing contents as created has naturally higher probability of genuiness than say a prinout of a document stored in memory of a mobile phone to determine the genuineness of the electronic document rather than rely on a certificate alone in such instances.

 

V. Methods to Get the Document

 

The Supreme Court grappled with the problem of not getting the relevant certificate despite all possible efforts by a litigant. The question that the court posed to itself was: What if the Section 65-B(4) certificate could not be obtained because the litigant may not be in possession of the electronic device storing the electronic document and despite applying to the authority holding the electronic document a certificate under Section 65-B(4) was not being issued? As a remedial first step, the Supreme Court noted the several provisions across statutes that enable a Court to order production of a document. The Supreme Court was essentially countering the major premise of Shafhi Mohammad v. State of H.P.[32] that the certificate could not be obtained by persons who are not in possesion of an electronic device containing the stored electronic document.

 

Section 165 of the Evidence Act, 1872 enables a Judge presiding over a civil or a criminal trial to order production of any document or thing for obtaining proof of relevant facts. Civil Procedure Code, 1908 provides in Order 16 concerning “Summoning and Attendance of Witnesses” empowers the trial court to issues summons to produce document (Rule 6), require persons present in court to give evidence or produce a document (Rule 7). Further, under Order 16, the trial court can also issue a proclamation for attendance and (or in lieu) issue a warrant  or even attachment of property if a person summoned fails to produce a document (Rule 10).

 

Under the Criminal Procedure Code, 1973, a criminal trial court can issue summons to produce a document or a thing (Section 91). Further, the criminal trial court can penalise a person refusing to produce a document (Section 349).

 

While several procedural provisions exist by which a Judge in a civil or criminal trial can order production of a document, in practice this is hard to do. Hence, the Supreme Court’s prescription that the trial Judges will assist  the litigants to obtain the Section 65-B(4) certificates under existing procedural methods in practice may be cumbersome and lengthen the trial itself.

 

The Impossiblity Maxims

While the Supreme Court has pointed to the existing procedural measures to obtain Section 65-B(4) certificates from anyone possessing the electronic device that contains the impugned electronic document, the court has also contemplated situations where despite all efforts, the relevant Section 65-B(4) certificates cannot be obtained by a litigant.

 

In the facts of Arjun Panditrao case[33], the Supreme Court noted that despite all efforts made by respondents through the High Court and otherwise, the litigant failed to obtain the Section 65-B(4) certificate from the government authorities who held the original electronic recording.

 

The prerequisite[34] for considering impossiblity of obtaining the Section 65-B(4) certficates are:

  1. Litigant has applied for the requisite Section 65-B(4) certificate to the relevant authority but either the that authority has refused or does not respond to the request then the litigant has to take help of court.
  2. Litigant seeks a court’s help to use its powers under the evidence, civil procedure and criminal procedure to summon the certificate from the authority refusing or delaying the same.
  3. If the litigant still does not get the relevant Section 65-B(4) certificate, then the litigant has done all she can to obtain the certificate.

 

For such impossiblity in obtaining the Section 65-B(4) certificate even after the prerequisites are performed, the Supreme Court applied two Latin maxims:

 

(1) lex non cogit ad impossiblia (law does not demand the impossible); and

(2) impotentia exusat legem (in case of disability that makes it impossible to obey the law, the disobedience is excused). These maxims have been cited many times by Indian courts and at times even in the context of mandatory provisions of law[35].

In Arjun Panditrao[36] case, the Supreme Court noted that the litigants had done everything they could to obtain the Section 65-B(4) certificate but they had failed. Hence, the Court held that,

  1. 51. On an application of the aforesaid maxims …, it is clear that though Section 65-B(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.

     

Conclusion

While the Supreme Court has created stability in law regarding electronic evidence by maintain the primary and secondary evidence distinction, it has also pressed into service existing procedural and evidentiary provision to obtain the elusive Section 65-B(4) certificate when the electronic document is not possession of a litigant seeking a Section 65-B(4) certificate. But most importantly, the Court has created a judicially recognised exception to the requirement of the Section 65-B(4) certificate when a litigant has done all she can to obtain such a certificate. The way court did it was not by reading down the mandatory nature of the Section 65-B(4) but by using well-recognised Latin maxims when it is impossible for a litigant to obtain the certificate despite seeking it from relevant authority and thereafter also seeking a court’s assistance through its procedural powers.

The Supreme Court has done its best to interpret the existing law on electronic evidence, but in future there will be a need to reform the rule against hearsay following the rest of the common law world.

 


† Hasit B. Seth practises as an independent Counsel in the Bombay High Court and in arbitrations.

 

[1] See Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.

[2] Id. at 37.

[3] Id. at 46.

[4] Evidence Act, 1872 does not use the terminology of “authenticating” a document for evidentiary purposes (The word “authenticating” is used in Ss. 82 and 85 for specific types of endorsements and is not used generally for authentication for all documents). The  Evidence Act, 1872 uses “proof of contents of documents” to verify genuineness of a document’s contents. This article proposes that “authentication” word be used for discussion purposes rather than “proof of contents” of a document. The reason is that it is commonly said, “have you proved the document?” while intent is to ask have you provided proof of contents of the document? US Federal Rules of Evidence uses authentication as a term to verify genuineness of all kinds of evidence, as explained in Federal Rules Evidence 901 as: “(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.” Further, for electronic documents, Ss. 65-A and 65-B do not use the terminology of “proof of contents of documents”; S. 65-A uses “contents of electronic record may be proved”. Hence, the choice of using a common umbrella term “authentication” for verifying genuineness of all kinds of evidence, be it electronic – analog or digital, physical objects, real, paper or any other kind.

[5] Evidence Act, 1872, Act 1 of 1872, S. 62.

[6] Id., S. 63.

[7] Id., S. 63.

[8] Id., S. 65.

[9] Id., S. 67.

[10] James Stephen, An Introduction to the Indian Evidence Act: The Principles of Judicial Evidence 176-177 (1902).

[11] See Information Technology Act, 2000, S. 92 and 2nd Schedule (both now omitted).

[12] Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, 483; Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 28-29.

[13]Anvar P.V., (2014) 10 SCC 473 at 484.

[14] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 28-29.

[15] See Anvar P.V., (2014) 10 SCC 473.

[16] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 37.

[17] Id. at 27-28.

[18] Id. at 30.

[19] Anvar P.V., (2014) 10 SCC 473.

[20] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 37-38.

[21] Id. at 55.

[22] Id. at 57.

[23] Id. at 55.

[24] Id. at 34.

[25] Arjun Panditrao Khotkar, (2020) 7 SCC 1.

[26] Id. at 68.

[27] Id. at 78.

[28] Evidence Act, 1872 does not define hearsay unlike US’s Federal Rules Evidence 801 that defines hearsay as, “(c) Hearsay. ‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.”

 [29] Rangarajan, S., The Anglo-Saxon Experiment Concerning the Rule against Reception of Hearsay Evidence and What it may Mean to us., Journal of the Indian Law Institute, 1972 can be accessed HERE .

[30] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 37.

[31]Id. at 37.

[32] See Shafi Mohammad v. State of H.P., (2018) 2 SCC 801.

[33]Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 46.

[34] Id. at 46.

[35] Id. at 48-49.

[36] Id. at 50.

Case BriefsHigh Courts

Himachal Pradesh High Court: Tarlok Singh Chauhan, J. dismissed the appeal being devoid of merits.

The facts of the case are such that respondent 1 filed a suit for declaration and permanent prohibitory injunction against the appellants alleging that the Will in question executed by the mother of appellant 1, respondents and grandmother of the appellants 2 to 4 in respect of properties owned and possessed by her in favour of the appellants 2 to 4 is illegal and wrong. The appellants contested the claim of respondent 1 with respect to the genuineness of the Will as it is the last legal and valid Will executed by late Smt. Tulsa in favour of the appellants 2 to 4 which was registered after her death and mutation of inheritance was entered and attested in favour of appellants 2 to 4. The Trial Court decreed the Will to be valid to the extent of 1/3rd share and remaining 2/3rd share was held to have devolved upon the legal heirs of late Smt. Tulsa. Feeling aggrieved two appeals by each party was filed wherein the appeal filed by respondent 1 was allowed and appeal filed by the appellants was dismissed in favour of the appellants to the extent that the Will is held to be legally and validly executed by Smt. Tulsa were set aside in its entirety. Assailing this order, the instant appeal was filed.

Counsel for the appellants Mr Y. P. Sood submitted that the findings recorded by the learned Courts below are totally perverse as there was no requirement of law to examine the scribe of the Will, more especially, when one of the attesting witnesses i.e. Lovender Singh in this case has already been examined.

Counsel for the respondents Mr Bimal Gupta and Ms Poonam Moghta submitted that the parties to the lis are Muslims and governed by Mohammedan Law and the mode of proving the Mohammedan Will is different as a Mohammedan will is required to be proved under Section 67 of the Evidence Act, 1872.

The Court thus observed that the law of Will as prescribed in Chapter-III, Rule 184 of the Mohammedan Law makes it clear that a Will may be executed in writing or oral, showing a clear intention to bequeath the property. However, a limitation is also prescribed that a valid Will by a Mohammedan will not be for more than 1/3rd of the surplus of his/her estate and that to a non-heir.

The Court relied on judgment Miyana Hasan Abdulla v. State of Gujarat, AIR 1962 Gujarat 214 wherein it was observed that on perusal of Section 67 of the Evidence Act, 1872 it is amply clear that where the document is written by one person and signed by another, the handwriting of the former and the signature of the later have both to be proved in view of Section 67 of the Evidence Act. What Section 67 of the Evidence Act refers to, is the signature of a witness who counter signs a document as a person who was present at the time when the document was signed by another person.

The Court observed that no exception can be taken to the findings recorded by the learned first Appellate Court, whereby it drew an adverse inference against the appellants for not examining the scribe of the document Shri Shamshad Ahmed Qureshi, who was very much alive at that time and even, in case, he was suffering from ailment his statement could have conveniently been recorded on commission.

The Court thus held that in the present case “non-examination of the scribe assumes importance because the witness Lovender Singh does not state to have witnessed Smt. Tulsa, the testator, putting her signatures over the Will.”

In view of the above, appeal was dismissed.[Ashiq Ali v. Yasin Mistri, 2021 SCC OnLine HP 735, decided on 20-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: G. Jayachandran, J., the instant suit was filed with regard to the relief of partition and permanent injunction from alienating or encumbering the suit property.

Instant suit was filed for partition by daughters of Late Palanisamy Gounder against his sons was dismissed by the trial court while upholding the validity of the release deed executed by the plaintiffs.

Aggrieved by the above decision of Trial Court, the appeal was preferred by the plaintiffs.

Daughters of Palanisamy, who are the plaintiffs in the suit under appeal relinquished their 2/5th share in the property of their father Palanisamy and executed a release deed on receipt of Rs 2,32,060/- each in favour of defendants 1 to 5, who are their two brothers and the legal heirs of their deceased brother. The sale deed and the release deed were registered.

It was alleged that the above-stated release deed was obtained dishonestly by misleading the daughters and no money was received.

Plaintiffs, later cancelled the release deed and got the cancellation deed registered. After issuing notice seeking partition, suit filed claiming 2/5th shares.

Point for determination:

Whether the Trial Court finding about the validity of the release deed to dismiss the partition suit is sustainable under law and facts?

It was contended by the plaintiffs that they were criminally coaxed to sign the documents. In the cancellation deed, the plaintiffs were made to affix a thumb impression and signature without explaining to them about the nature of the document. Along with this, they were not paid any amount but the deed was executed.

Plaintiffs came to know about the execution of the release deed only when they applied for an encumbrance certificate.

It was expressed that by filing the partition suit, the plaintiffs disowned their own document namely the release deed duly registered and presumed to be an official act performed regularly.

If the terms of contract reduced into writing and duly registered is sought to be excluded by oral evidence, the burden is on the plaintiffs to adduce evidence sufficient to exclude the written evidence, as per section 92 of the Evidence Act.

Sections 91 and 92 proviso (i) of Indian Evidence Act, clearly lay down the rule when written evidence could be excluded by oral evidence is permissible.

Plaintiffs could not prove that the release deed was executed by misleading them and the consideration in the release deed was not aid to them.

Bench held that without declaring further relief to declare the sale deed in favour of 6th defendant and release deed as null and void, the suit for partition declaring the right in the suit property was prohibited under Section 34 of the Specific Relief Act.

Section 34 of the Specific Relief Act:

  1. Discretion of court as to declaration of status or right:— Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Plaintiffs after executing a release deed, cancelled the same without any notice to the beneficiary of the release deed and later without any further relief of declaration in respect of those deeds, the suit for partition was filed. When Section 34 of the Specific Relief Act, restrains the Courts from entertaining suits filed for mere declaration as to right when the plaintiffs are able to seek further relief, and same omitted to do so.

Therefore, for the reasons stated above, this Court confirmed the decree and judgment of the Additional District Court.[Tmt. Karuppathal v. P. Ponnusamy, 2021 SCC OnLine Mad 677, decided on 12-02-2021]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that to get a decree of divorce under Section 13(1)(iii) of the Hindu Marriage Act, it is necessary for the party seeking divorce to prove that the other party’s unsoundness of mind is incurable or that the mental disorder is of such kind that the petitioner cannot be reasonably expected to live with his/her spouse.

The instant petition was filed by the wife in a marital dispute challenging the Family Court’s Order allowing the application filed by the husband to constitute a medical board and to direct the wife to appear before it for the assessment of her mental condition.

Husband had initiated the divorce proceedings before the Court under Section 13(1)(iii) of the Hindu Marriage Act on the ground of mental order. He added in his submissions that the mental condition of the wife was not normal as she was suffering from obsessive-compulsive disorder as well as a borderline personality disorder.

The husband filed a petition before the Court below to direct the wife to undergo medical examination for borderline personality disorder before a medical board to be constituted for the said purpose, but the wife objected the same.

Analysis, Law and Decision

 Bench while analysing the facts and circumstances of the cases stated that the Court has the power to direct the parties to the litigation to undergo a medical test.

Further, Court referred to the Supreme Court decision in Sharda v. Dharmpal, (2003) 4 SCC 493, wherein it was held that even though the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country under Article 21 of the Constitution of India, a matrimonial Court has the power to order a person to undergo a medical test and such a direction need not be in violation of any right to personal liberty.

“…while exercising the power to order a medical test to be undergone by a person, the Court should exercise restraint and there must be strong prima facie case and sufficient material before the Court to pass such an order.”

 In the present matter, wife’s alleged mental order is an issue to be decided.

Divorce Decree

High Court expressed that, in order to get a divorce decree under Section 13(1)(iii) of HMA, the husband must establish that unsoundness of mind of the wife is incurable or her mental disorder is of such kind and to such an extent that petitioner cannot reasonably be expected to live with her spouse.

Family Court

The Family Court has the power to direct a party to appear before a medical board to undergo a medical examination and the question of such action being violative of Article 21 of the Constitution of India would not arise.

It was noted that the husband had produced documents wherein it was stated that the wife was treated by the psychiatrist for the alleged illness. The said documents were perused by the lower court.

“The fact that the wife’s alleged mental disorder is an issue to be decided in the case itself constitutes a prima facie case.”

Medical Board’s opinion regarding the medical condition of the wife may be of utmost importance for granting or rejecting the prayer for a decree of divorce under Section 13(1)(iii) of the HMA.

Further, while concluding its decision, Bench added that the above-stated opinion is relevant under Section 45 of the Evidence Act.

When a party to a litigation alleges existence of certain facts, the Court can draw no inference of its existence unless it is proved through the manner in which the Evidence Act is envisaged.

Therefore, the Family Court’s decision was justified in its order and no interference was required.[Devika M. v. Shibin Prakash, 2021 SCC OnLine Ker 1235, decided on 10-03-2021]


Advocates before the Court:

Counsel for the petitioner Sri. T.R. Harikumar

Counsel for the respondent Sri. Sharan Shahier.

Op EdsOP. ED.

It is said that law keeps evolving, it keeps growing and developing with time. The said change or evolution is not only required to meet out the changes in society but also to technology. It tries to meet out new challenges thrown to it by changing itself either by interference of judiciary wherein new interpretation is provided to the text or by amendment of the text itself. The Evidence Act has been enacted in 1872 and it classified evidence (Interpretation clause: Section 31) into “oral” and “documentary” evidence and the same were to be proved by way of primary or secondary evidence. The lawyers and Judges in all these decades have tried to fit in the evidence in these two categories and have tried to prove the same as primary or secondary evidence, as the case may be. However, with technological advances and use of the same in our day-to-day life the need was felt by the legislature to regulate the law to meet out new challenges and thus the Information Technology (IT) Act, 2000 was enacted by Parliament, and in one of the rare occasions when one law brought amendment in various other laws. The IT Act vide  Sections 91[1], 92[2], 93[3] and 94[4] brought in substantial change with regard to the electronic evidence/records in the Penal Code, 1860[5], the Evidence Act, 1872[6], the Bankers’ Books Evidence Act, 1891[7] and the Reserve Bank of India Act, 1934[8], respectively.

In its Statement of Objects and Reasons,  the IT Act provided that:

The law of evidence is traditionally based upon paper based records and oral testimony. Since electronic commerce eliminates the need for paper based transactions, hence to facilitate e-commerce, the need for legal changes have become an urgent necessity.[9]

However, in the last 2 decades after the enactment of the IT Act, the use of electronic transactions has gone way beyond the e-commerce and thus now the use of electronic evidences in trials have increased exponentially and thus with the same courts have been time and again required to interpret Section 65-B of the Evidence Act providing for “admissibility of electronic records”.

                        Sections 65-A[10] and 65-B[11] have been added in the Evidence Act by the IT Act, 2000 where Section 65-A provides that the “contents of electronic records may be proved in accordance with the provisions of Section 65- B”. Since Section 65-B of  the Evidence Act provided for “admissibility of electronic evidence”, without the need to produce the original, only if the electronic record (being a document) is supported with a certificate under Section 65-B(4) of the Evidence Act thus an issue cropped up in State (NCT of Delhi) v. Navjot Sandhu[12], as to whether or not an electronic record could be admitted even if the same is not supported by a certificate under Section 65-B(4). However, while dealing with the said question the Court held:

  1. … there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 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, Sections 63 and 65.

Thus, post Navjot Sandhu judgment[13] (Parliament attack case) the issue with regard to admissibility of electronic record got relaxed wherein the parties had an option either to bring the original record to the court and get it proved as primary evidence or to get a copy of original record proved by accompanying the same with a certificate under Section 65- B(4) of  the Evidence Act or to prove the same as secondary evidence under Sections 63[14] and 65[15] of the Evidence Act. However, later, a three-Judge Bench of the Supreme Court in Anvar P.V. v.  P.K. Basheer[16], overruled the law laid down by Navjot Sandhu case[17] and held that Section 65-B of the Evidence Act is a “complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield”. The Supreme Court held in Anvar P.V.[18] that the electronic record produced in evidence has to be accompanied with a certificate issued under Section 65-B of  the Evidence Act to be admissible in law. However, it reiterated that there would be no need of producing certificate under Section 65-B if the original is being produced.

Although, in Anvar P.V.[19] the Supreme Court expressly overruled the law laid down by Navjot Sandhu case[20] that electronic record could be proved by way of secondary evidence as provided under Sections 63 and 65 of the  Evidence Act but it left certain grey areas which needed answers.

The prominent one being that when would be the certificate under Section 65-B of the Evidence Act be required to be taken and produced in evidence and second question being that what would happen to the cases or trials where electronic record has been proved in terms of Navjot Sandhu case[21] in trial without any certificate under Section 65-B and the question with regard to it is raised in appeal.

Ambiguity in Law

The Supreme Court in Anvar P.V.[22] at two different places (at paras 16 and 22 of the judgment) recorded contradictory position, at one place it recorded that such certificate shall be given when the electronic record “is produced in evidence” whereas at the other place it recorded that the certificate shall be “obtained at the time of taking the document”, this has lead to confusion and the various High Courts have interpreted it on different occasions.

The Rajasthan High Court in Paras Jain v.  State of Rajasthan[23], examined the issue as to whether a “contemporaneous certificate” under Section 65-B would be required for admissibility of a CD in evidence. The High Court while examining the issue and referring to Anvar P.V.[24] opined that such certificate is not required to be filed with charge-sheet and the only requirement is to complete the procedure (of procurement and submission of certificate) before the admissibility of evidence is considered by the court. For arriving at such conclusion the court also made reference to various provisions of the Criminal Procedure Code which permit the production of a documentary evidence which has not been submitted with the charge-sheet, accordingly the High Court held  that there is  no requirement of procurement of a certificate under  Section 65-B of the Evidence Act at the time of taking the electronic record and the same could be procured later and submitted at the time of production of such document in evidence.

The same issue was considered by the Delhi High Court as well in Kundan Singh v. State[25], where the Division Bench of the High Court examined the same issue as to whether certificate under Section 65-B must be issued simultaneously with the production of the computer output or could it be issued and tendered when such document is admitted in evidence. The Division Bench while discussing the observation of the Supreme Court in Anvar P.V.[26] held that ratio of Anvar P.V.[27] does not require a simultaneous or contemporaneous certificate to be issued. The High Court clarified that admissibility and authenticity are two different things and Section 65-B is only with regard to admissibility and not about authenticity.

In Avadut Waman Kushe v. State of Maharashtra[28], the High Court of  Bombay examined the sole question that whether certificate under Section 65-B(4) must necessarily be filed simultaneous with the electronic record or whether it can be filed at any subsequent stage of proceedings. While examining the said issue the High Court independently observed that Section 65-B does not specify the stage of production of certificate. It further opined that the “stage” at which certificate would be required to be submitted would be the stage when the document is “tendered in evidence for being considered its admissibility. This definitely cannot be the stage of filing of the charge-sheet” or the preliminary stage of proceedings.

The realisation of grey area left in the judgment of Anvar P.V.[29] has not only been felt by the various High Courts but also by the author of Anvar P.V. judgment[30], Kurian Joseph, J. himself, who wrote an article titled as “Admissibility of Electronic Evidence[31], wherein he has observed that the judgment in Anvar P.V. [32] “did not specify as to whether the said certificate has to be filed with the charge-sheet or if it can be supplied at a later stage, during the trial”. However, after discussing the judgment of the Rajasthan High Court (Paras Jains case[33]) and the Delhi High Court’s judgment in Kundan Singh v. State[34], Kurian Joseph, J.  opined that the correct position of law on the point would be the one held in Anvar P.V. case[35] and clarified by the said judgments of the Rajasthan High Court and the Delhi High Court.

However, despite the similar interpretation provided by the High Courts of Rajasthan, Delhi and Bombay to the judgment of Anvar P.V.[36] and also the article written by the author of Anvar P.V. judgment[37]  acknowledging the said interpretation provided by the said High Courts, the  absence of an authoritative pronouncement by the Supreme Court on the  said point and the doubt left by Anvar P.V. case[38], the High Court of M.P. provided an opposite interpretation and held in Kamal Patel v. Ram Kishore Dogne[39], that:

  1. 12. … in order to ensure the source and authenticity of the electronic record, a contemporaneous certificate issued at the time of each transfer in terms of Section 65-B(4) of the Evidence Act, would be required because the Supreme Court has specifically held that in 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 documents, without which, the secondary evidence pertaining to that electronic record, is

(emphasis supplied)

Thus, in absence of an authoritative pronouncement by the Supreme Court on the issue, the High Courts have interpreted Anvar P.V.[40] differently. However, in addition to this uncertainty, the Division Bench of the Supreme Court in Sonu v. State of Haryana[41] added more to the confusion by doubting the general law of applicability of judgments retrospectively unless the same is specifically mentioned otherwise in the said judgment. The Division Bench observed that:

  1. This Court did not apply the principle of prospective overruling in Anvar case[42]. The dilemma is whether we This Court in K. Madhava Reddy v. State of A.P.[43], held that an earlier judgment would be prospective taking note of ramifications of its retrospective operation. If the judgment in Anvar[44] is applied retrospectively, it would result in unscrambling past transactions and adversely affecting the administration of justice. As Anvar case[45]was decided by a three-Judge Bench, propriety demands that we refrain from declaring that the judgment would be prospective in operation. We leave it open to be decided in an appropriate case by a three-Judge Bench.

Thus, considering judicial propriety the Division Bench stopped just before holding that the application of Anvar P.V. judgment[46] only prospectively, and the issue still awaits an authoritative pronouncement/clarification from the Supreme Court.

In most of the cases it has been seen that the strict compliance of requirement for a certificate to be considered as a certificate under Section 65-B(4) of the Evidence Act (as made mandatory by Anvar P.V. judgment[47]) was being found difficult for the parties to meet because in most  of the cases such certificates are procured from a third party and in those cases the litigant is not in position to dictate the language of  certificate, this has lead to a bona fide litigant suffering at many occasions. The Division Bench of the Supreme Court, possibly being moved by the suffering of such litigants, deviated from the ratio of the three-Judge Bench judgment of Anvar P.V. case[48] in Shafhi Mohammad v.  State of H.P.[49]  and by doing so it contributed to the confusion in the legal proposition on admissibility of electronic evidence. In Shafhi Mohammad[50] the Supreme Court observed that “Sections 65-A and 65-B of the Evidence Act, 1872 cannot be held to be a complete code on the subject.” It further held that “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.”

Since the said finding of the Division Bench was directly in contravention of the finding recorded by the three-Judge Bench of Supreme Court in Anvar P.V[51].(para 20) where the Supreme Court has specifically held for Section 65-B that it “is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield”. Thus, looking into contradictory finding given by a Division Bench of Supreme Court the pronouncement of Division Bench of the Supreme Court in Shafhi Mohammad[52] was referred to the larger Bench for reconsideration in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal[53]. 

Clarification as Provided by the Supreme Court[54]

a. Shafhi Mohammad[55]overruled (being per incuriam), certificate under Section 65-B held mandatory.—As at the time of reference no specific question was framed by the Division Bench while referring the issue to larger Bench and also considering the fact that there were too many grey areas left behind in Anvar V. case[56] the three-Judge Bench of the Supreme Court considering the reference made to it, took an opportunity to provide clarifications on certain issues while agreeing with the ratio of Anvar P.V.[57] viz. Section 65-B of the Evidence Act is a complete code in itself and thus setting aside the judgment of Shafhi Mohammad[58] and holding it as per incuriam.

b. Reference to Information Technology Act, —The three-Judge Bench of the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal[59] agreed with the law laid down in Anvar P.V.[60] but gave certain clarifications to the same. While in Anvar P.V.[61] although the Supreme Court was dealing with electronic records and evidences still no reference was given to the definitions of the same. However in Arjun Panditrao Khotkar[62] the Supreme Court made it clear that the definitions of the terms like “electronic records”, “computer”, “computer network”, “data”, etc. has to be taken from the Information Technology Act, 2000 and the same would not be as being understood by any layman.

c. Who can provide the certificate under Section 65-B.—In Arjun Panditrao[63] the Supreme Court held that the certificate under Section 65-B is a mandatory document but it could be provided by 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”. It also provided that the certificate has to be given only stating that it is as per the “best of his knowledge and belief”, however it was clarified that it has to be either knowledge or belief as it cannot be   This was further provided that in cases where the certificate is not filed or is defective than the court concerned may call for the appropriate certificate.

d. Conditions to be satisfied in —The conditions mentioned in Section 65-B(4) as being optional (with the use of expression “any” in the statute), has been read by the Supreme Court as being cumulative in nature and thus “all” the said conditions are required to be fulfilled in the certificate so issued.

e. Stage at which certificate could be filed and it need not be contemporaneously issued.—The 3-Judge Bench of the Supreme Court by putting its stamp of approval on the judgments of Paras Jain[64] (Rajasthan High Court) and that of Kundan Singh[65] (Delhi High Court) clarified the confusion with regard to the stage at which certificate is to be produced and also about the cases where certificate is issued at a later date and electronic record is issued on a prior date. It has been held by the Supreme Court that:

59. … 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 [66]

The clarification about the fact that both certificate as well electronic record could be from different date and time is clear from the fact that the Supreme Court approved the judgments of High Courts which held the same, coupled with the fact that the Supreme Court itself observed that “[c]onsidering that such certificate may also be given long  after the electronic record has actually been produced by  the computer….” goes on to clarify that the certificate need not be contemporaneous to the transfer of date or creation or production  of the electronic record in evidence.

f. Section 65-B a complete code on itself, non-application of Sections 62 to 65 in cases relating to electronic evidence.—Further, the 3-Judge Bench of the Supreme Court clarified that when Anvar V[67] held that Section 65-B is complete code in itself, it basically goes on to show that not only the principles of “secondary evidence” would be applicable in such cases but also the concept of “primary evidence” as is understood in the Evidence Act would also be not applicable and accordingly the  Supreme Court observed that “Sections 62 to 65 being irrelevant” for the admissibility and proof of electronic record and thus it directed that the phrase “under Section 62 of the Evidence Act” be considered to have been deleted from para 24 of Anvar P.V. judgment[68]. Although the court did use the terms “primary” and “secondary” to explain the concept of “original” and “document” with certificate under Section 65-B for the purpose of electronic evidence but it has been made clear by the Court that Section 65-B is a complete code in itself and the concept of primary and secondary evidence (as provided from Sections 62 to 65 of the Evidence Act) would have no application in cases of electronic evidences.

g. Oral evidence cannot be a substitute to the certificate under Section 65-B.—The Supreme Court while overruling the judgment of the Madras High Court in Ramajayam v. Inspector of Police[69] held that “certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record”, however it provided that:

52. … in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the person concerned, the Judge conducting the trial must summon the person …and require that such certificate be given by such person/persons.[70]

The Supreme Court though further clarified that “[t]his, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned”. Thus, the Supreme Court directed to ensure that a vigilant litigant is provided proper help by the trial court in securing the certificate or an evidence is not discarded because of reasons beyond the control of litigant while making it sure that the requirement of Section 65-B is adhered to in letter and in spirit.

h. Other general —To ensure that the accused/other party gets sufficient opportunity to challenge the genuineness of the electronic record (be it CDR or any other record), all cellular companies and internet service providers have been directed to maintain CDRs and other relevant records for the period concerned (in tune with Section 39[71] of the Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation. The Court further directed that the authorities concerned should examine the Draft Rules for Reception, Retrieval, Authentication and Preservation of Electronic Records and the report suggesting comprehensive guidelines, and their adoption in courts, across several categories of proceedings (as prepared by a Judges’ Committee), with an object to give them statutory force. Thus, although the     3-Judge Bench in Arjun Panditrao Khotkar case[72], was only answering the reference made to it, however it ended up providing clarity on the issue of admissibility of electronic evidence and the procedure which is required to be followed in such cases. It goes a long way to clarify the grey areas present in the law. The law on admissibility of evidence might need to evolve more in future, but as of now the path has been provided by the Supreme Court for other courts to follow.


* Advocate on Record, Supreme Court of India.

** Advocate, High Court of Madhya Pradesh at Jabalpur.

1 http://www.scconline.com/DocumentLink/U7XDph8q.

[1] http://www.scconline.com/DocumentLink/4s23VV20.

[2] http://www.scconline.com/DocumentLink/5GGOtaCT.

[3] http://www.scconline.com/DocumentLink/ARIrZy0v.

[4] http://www.scconline.com/DocumentLink/5Ob6WlcP.

[5] http://www.scconline.com/DocumentLink/wNz74jV9http://www.scconline.com/DocumentLink/hF8R4TLX.

[6] http://www.scconline.com/DocumentLink/CmD6h6Ep.

[7] http://www.scconline.com/DocumentLink/21qgXyb2.

[8] http://www.scconline.com/DocumentLink/2Qrc25Io.

[9] Penal Code, 1860.

[10] http://www.scconline.com/DocumentLink/2DzzZZ6F.

[11] http://www.scconline.com/DocumentLink/dQ7rc5Jn.

[12] (2005) 11 SCC 600, 714.

[13] (2005) 11 SCC 600.

[14] http://www.scconline.com/DocumentLink/jKNlwH2s.

[15] http://www.scconline.com/DocumentLink/agf32S6C.

[16] (2014) 10 SCC 473 .

[17]  Supra Note 14.

[18] Supra Note 17.

[19] Ibid.

[20] Supra Note 14.

[21] Ibid.

[22] Supra Note 17.

[23] 2015 SCC Online Raj 8331.

[24] Supra Note 17.

[25] 2015 SCC OnLine Del 13647.

[26] Supra Note 17.

[27] Ibid.

[28] 2016 SCC Online Bom3236.

[29] Supra Note 17.

[30]  Ibid.

[31] (2016) 5 SCC J-1.

[32] Supra Note 17.

[33] Supra Note 24.

[34] Supra Note 26.

[35] Supra Note 17.

[36] Ibid.

[37]  Supra Note 32.

[38] Supra Note 17.

[39] 2016 SCC OnLine MP 938

[40] Supra Note 17.

[41] (2017) 8 SCC 570, 589.

[42] Supra Note 17.

[43] (2014) 6 SCC 537.

[44] Supra Note 17.

[45] Ibid.

[46]  Ibid.

[47] Ibid.

[48] Ibid.

[49] (2018) 2 SCC 801.

[50] Ibid.

[51]  Supra Note 17.

[52] Supra Note 50.

[53] (2020) 7 SCC 1

[54] Ibid.

[55] Supra Note 50.

[56] Supra Note 17.

[57] Ibid.

[58] Supra Note 50.

[59] Supra Note 54.

[60] Supra Note 17.

[61] Ibid.

[62] Supra Note 54.

[63] Ibid.

[64] Supra Note 24.

[65] Supra Note 26.

[66] Supra Note 54, p.55.

[67] Supra Note 17.

[68] Ibid.

[69]2016 SCC OnLine Mad 451.

[70] Supra Note 54, p. 50.

[71] http://www.scconline.com/DocumentLink/lT5UPCaK.

[72] Supra Note 54.

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjay Dhar, J., while allowing the present petition, clarified that a person who has been declared missing for more than ten years, cannot be said to have ‘deserted’ his service responsibilities.

 Background

Petitioner has filed the instant petition seeking declaration that her husband namely Asha Ram, be declared as dead in terms of Section 108 of India Evidence Act, 1872. A Writ of Certiorari to quash the order of respondents whereby the missing husband of the petitioner has been declared as ‘deserter’ by the respondent authority has also been sought.

 Issue

Whether the respondents could have, on the basis of an enquiry, declared the petitioner’s husband as ‘deserter’ in the circumstances of the present case?

 Observation

Court reproduced Section 108 of the Indian Evidence Act, 1872;

Burden of proving that person is alive who has not been heard of for seven years –  Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

Further, Court referred to the definition of the word ‘desert’ as defined in Oxford English Dictionary to mean: (i) callous or treacherously abandon (ii) leave (a place), causing it to appear empty and (iii) illegally run away from the military service and connecting it with the facts of the present case, observed, “A person, whose whereabouts are unknown and who has not been heard of for the last more than 10 years, cannot be stated to have illegally run away from his service … the petitioner’s husband is presumed to be dead because his whereabouts have remained unknown for more than seven years, as such, and by no stretch of imagination, he can be held guilty of having deserted the service of CRPF… The action of the respondents in declaring the petitioner’s husband as ‘deserter’ and thereafter handing down the punishment of dismissal to him, is unsustainable in law.”

 Decision

While allowing the present petition, Court quashed the orders of the respondent authority whereby the petitioner’s husband was declared ‘deserter’ and was dismissed from his service. Further, directions were issued to release all the service/pensionary benefits of the petitioner’s husband in favour of the rightful claimants.[Madhu Devi v. Union of India, 2020 SCC OnLine J&K 723, decided on 24-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: While settling the dispute between Anglo American Metallurgical Coal (AAMC) and MMTC Ltd, the bench of RF Nariman* and KM Joseph, JJ had the occasion to explain the concept of “patent” and “latent” ambiguity and held,

“… a “patent ambiguity” provision, as contained in section 94 of the Evidence Act, is only applicable when a document applies accurately to existing facts, which includes how a particular word is used in a particular sense.”

In the said case, the bench has set aside the decision of the division bench of Delhi High Court and has restored the Majority Award dated 12.05.2014 and the Single Judge’s judgment dated 10.07.2015 dismissing the application made under section 34 of the Arbitration Act by MMTC.

The Court had called the entire approach of the Division Bench was flawed and had said,

“To cherry-pick three emails out of the entire correspondence and to rest a judgment on those three emails alone, without having regard to the context of the LTA and the correspondence, both before and after those three emails, would render the judgment of the Division Bench fundamentally flawed.”

The Court explained that Section 92 of the Evidence Act, 1872 refers to the terms of a “contract, grant or other disposition of property or any matter required by law to be reduced to the form of a document”. Under proviso (6) read with illustration (f), any fact may be proven which shows in what manner the language of a document is related to existing facts. Illustration (f) of section 92 of the Evidence Act indicates that facts, which may on the face of it, be ambiguous and vague, can be made certain in the contextual setting of the contract, grant or other disposition of property.

Section 94 of the Evidence Act, then speaks of language being used in a document being “plain in itself”. It is only when such document “applies accurately to existing facts”, that evidence may not be given to show that it was not meant to apply to such facts.

As per section 95 of the Evidence Act, when the language used in a document is plain in itself, but is “unmeaning in reference to existing facts”, only then may evidence be given to show that it was used in a peculiar sense.

“When sections 92, 94 and 95 of the Evidence Act are applied to a string of correspondence between parties, it is important to remember that each document must be taken to be part of a coherent whole, which happens only when the “plain” language of the document is first applied accurately to existing facts.”

When proviso (6) and illustration (f) to section 92, section 94 and section 95 of the Evidence Act are read together, the picture that emerges is that when there are a number of documents exchanged between the parties in the performance of a contract, all of them must be read as a connected whole, relating each particular document to “existing facts”, which include how particular words are used in a particular sense, given the entirety of correspondence between the parties.

“Thus, after the application of proviso (6) to section 92 of the Evidence Act, the adjudicating authority must be very careful when it applies provisions dealing with patent ambiguity, as it must first ascertain whether the plain language of a particular document applies accurately to existing facts. If, however, it is ambiguous or unmeaning in reference to existing facts, evidence may then be given to show that the words used in a particular document were used in a sense that would make the aforesaid words meaningful in the context of the entirety of the correspondence between the parties.”

In the case at hand, there was no mention of the price at which coal was to be supplied in the three “crucial” emails, these emails must be read as part of the entirety of the correspondence between the parties, which would then make the so-called “admissions” in the aforementioned emails apply to existing facts. Hence, there was no scope for application of the “patent ambiguity” principle contained in section 94 of the Evidence Act, to the facts of the present case.

However, it was stated that section 95 of the Evidence Act, dealing with latent ambiguity, when read with proviso (6) and illustration (f) to section 92 of the Evidence Act, could applied to the facts of the case, as when the plain language of a document is otherwise unmeaning in reference to how particular words are used in a particular sense, given the entirety of the correspondence, evidence may be led to show the peculiar sense of such language. Thus, if this provision is applied, the Majority Award cannot be faulted for accepting the evidence AAMC’s Marketing Manager’s wherein he had explained that the three emails would only be meaningful if they were taken to refer to “mixed” supplies of coal, and not supplies of coal at the contractual price.

Anglo American Metallurgical Coal versus MMTC| Supreme Court finds Delhi HC’s division bench verdict “flawed”; Restores Arbitral Tribunal’s majority award

[Anglo American Metallurgical Coal Pty Ltd v. MMTC Ltd, CIVIL APPEAL NO.__4083__ OF 2020, decided on 17.12.2020]


Advocates who appeared in the matter

For Appellant: Senior Advocates Kapil Sibal and Neeraj Kishan Kaul

For Respondent: Senior Advocate Mukul Rohatgi

*Justice RF Nariman has penned this judgment. 

Know Thy Judge| Justice Rohinton F. Nariman

 

 

 

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Division Bench of Sanjay Dhar and Rajesh Bindal, JJ. while dismissing the present application seeking leave to appeal, said, “…the non-applicant cannot be convicted on the statement of co-accused recorded under Section 67 of the NDPS Act, as the same cannot be used as a confessional statement being barred under the provision of Section 25 of the Evidence Act.”

Background

Through the instant application, the applicant; Narcotics Control Bureau (NCB) seeks leave to file an appeal against the judgment dated 11-11-2019 passed by the Principal Sessions Judge, Kathua (“Special Court”) whereby the non-applicant Rafi Ahmed has been acquitted of the charges for the commission of offences under Sections 8, Section 21, Section 27, Section 28 of Narcotic Drugs and Psychotropic Substances Act, 1985.

 Observation

Court placed reliance over the case of, Toofan Singh v. State of Tamil Nadu, 2020 SCC OnLine SC 882, wherein the Court said, “… (i) That the officers who are invested with powers under section 53 of the NDPS Act are police officers within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act”.

Decision

Dismissing the present application, the Court remarked, “…the learned Special Court has rightly acquitted the non-applicant of the charges leveled against him. The law does not allow the State to file an appeal against an order of acquittal under Section 417 CrPC. The State has to seek leave to file an appeal.”[Union of India v. Rafi Ahmed, 2020 SCC OnLine J&K 643, decided on 15-12-2020]


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Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal J., dismissed the second appeal being devoid of merits.

The facts of the case are such that the suit property was held by Jhulan Rajwar, who acquired patta of suit land in his favour in Surguja Settlement and remained in possession during his lifetime and died issueless leaving behind his wife Sonmet. Since Jhulan Rajwar was issueless, he adopted his nephew Ramcharan’s son namley Budhu Rajwar (plaintiffs’ father) and also executed a Will dated 05-03-1942 and after the death of Jhulan Rajwar, Budhu Rajwar came into possession of the said suit land by way of the Will. It is the case of the plaintiffs (sons of Budhu Rajwar) that after the death of Jhulan Rajwar his wife Sonmet executed a gift deed in favour of Rangu i.e. defendants’ predecessor in interest registered on 22-05-1962, as such; plaintiffs’ suit deserves to be dismissed. The Trial Court held that plaintiffs have failed to prove the Will in accordance with Section 63(c) of the Indian Succession Act, 1925 read with Section of the Indian Evidence Act, 1872. Agrreived by this, first appeal was filed which upheld that Trial Courts verdict. Aggrieved by the same, instant second appeal has been filed under Section 100 of the CPC.

Counsel for the appellants submitted that the Will has been duly proved as per the provision contained in Section 69 of the Evidence Act, 1872. the Will dated 05-०३-1942 (Ex. P/4) is a more than 30 years old document which has been produced from proper custody, therefore, presumption of valid execution of the Will would be made and even if the attesting witnesses have not been examined, presumption of due execution and attestation of the Will (Ex. P/4) will be raised by virtue of the provision contained under Section 90 of the Evidence Act.

Counsel for the respondents submitted that plaintiffs utterly failed to prove the will prescribed by Section 69 of the Evidence Act. It was further submitted that Section 90 of the Evidence Act which states about the presumption of validity of a 30 years old document is not applicable in this case and the Will has to proved in accordance with Section 63(c) of the Indian Succession Act read with Section 68-69 Of the Indian Evidence Act.

Issue 1: Section 69 of Evidence Act, 1872

The Court relied on judgments Babu Singh v. Ram Sahai, (2008) 14 SCC 754, K. Laxamanan v. Thekkayil Padmini, (2009) 1 SCC 354, Kalyanswami. v. L. Bakthavatsalam,  2020 SCC OnLine SC 584 wherein it was observed that Section 69 of the Evidence Act provides that if execution of Will could not be proved by examining the attestor or in absence of non-availability of attestor, to prove the Will, secondary evidence could be adduced by proving the handwriting of one of the attesting witnesses and signature of the executant of the document to be in the handwriting of that person. Two conditions are required to be proved for valid proof of the Will, the person who has acquaintance of the signature of one of the attesting witnesses and also the person executing the document should identify both the signatures before the Court.

Issue 2: Section 90 of the Evidence Act, 1872

The Court relied on judgments Laxmi Barvah v. Padma Kanta Lalita, (1996) 8 SCC 357; Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 wherein it was held that Section 90 of the Evidence Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities, to prove the execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872, which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised, if the document in question is raised from proper custody. It is, however, the discretion of the Court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.

The Court observed that it is quite vivid that both the attesting witnesses of the Will namely Bhullu Rajwar and Gangaram had already died at the time of institution of the suit and they were not available to prove the Will. In these circumstances, duty is cast upon the plaintiffs to prove the Will as per Section 69 of the Evidence Act that the signature of the executant on the Will that it is of his own and at least the signature of one of the attesting witnesses have to be identified in the manner known to law. Merely saying that the signature of the attesting witness is of him may not be sufficient unless he produces the signature of the attesting witness on some admissible document and makes both the signatures available for comparison by the Court to find out whether the person acted as a real witness, which has admittedly not been done in the instant case.

The Court thus held that given the observations in light of the facts stated above, it cannot be held that the Will has been proved in accordance with Section 69 of the Evidence Act. It was further held that Section 90 of the Evidence Act would have no application in case of Will in view of the strict requirement contained in Section 63(c) of the Indian Succession Act read with Section 68 of the Indian Evidence Act,

In view of the above, impugned order upheld and the second appeal was dismissed.[Choudhari v. Ramkaran, 2020 SCC OnLine Chh 1015, decided on 29-09-2020]


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Case BriefsHigh Courts

Karnataka High Court: H. T. Narendra Prasad J. allowed the appeal stating that the Motor Accident Claim Tribunal has ample powers under Section 165 of the Evidence Act to summon a court witness and this power must be exercised proactively.

The facts of the case are such that the claimant who is student studying in Government Polytechnic College and while returning boarded a bus and when she was about to get down from the bus and while her one step was down the driver without any signal moved the bus and the girl fell down sustaining multiple and grievous injuries and was hospitalized thereafter for treatment. A claim petition was filed before the Tribunal and compensation was granted of Rs. 50,000. Being aggrieved by the meagre amount of compensation, instant appeal was filed.

Counsel for the appellants submitted that the claimant was about 18 years of age at the time of the accident and was studying in Govt. Polytechnic College but due to the accident, has sustained fractures and various other body injuries. It was further submitted that merely because the doctor was not examined the Tribunal has not granted any compensation under the ‘loss of future income’ and hence it is not justified in granting meagre compensation of Rs. 50,000 and therefore the appeal should be allowed.

Counsel for the respondents submitted that the claimant has not examined the treating doctor for assessment of disability and therefore the Tribunal on the basis of the materials available on record and wound certificate has granted just and reasonable compensation.

The Court relied on the judgment Shri Iqbalahmed v. Patel Integrated Logistics Ltd., ILR 2017 KAR 3045 wherein it was held that in cases where the claimants are unable to examine the treating doctor as witness, the Presiding Officer of the Tribunal shall play a pro-active role in ensuring the presence of the doctors by invoking the power under Section 165 of The Evidence Act.

The Court thus observed that the Motor Vehicles Act is a social beneficial piece of legislation which caters to the need of the claimants. The very scope and object of the Act while dealing with the claim, is to protect and promote the interest pf the claimants. The Act, tries to monetarily compensate the injured and the dependents of the deceased who find themselves in a difficult situation after suffering an accident.

The Court thus held that the matter be remanded back to the Tribunal with a direction to the Presiding Officer of the Tribunal to summon the treating doctor and in case the treating doctor is not available, the matter should be referred to the Medical Board for assessment of disability.

In view of the above, the appeal was allowed.[Kumari H.P. Shobha v. Managing Director, MFA No. 3668 of 2015, decided on 17-01-2020]


Arunima Bose, Editorial Assistant has put this story together

Op EdsOP. ED.

Introduction

Extracting a contradiction or an omission which amounts to a contradiction is an art of the cross-examiner and the method to prove it is a science. Any contradiction if proved in accordance with the provisions of the Evidence Act, 1872 can impeach the credibility of the witness and can help in rejecting the evidence of the prosecution in criminal trials and of the other side in civil trials. Contradictions have to be proved in accordance with the procedure prescribed under the Evidence Act, 1872 otherwise it would have no evidentiary value and would not be admissible. A witness can be contradicted with its previous statements either made by him in writing or reduced into writing by someone.

In criminal trials, statements recorded by the Police during the course of any investigation cannot be used for any purpose during the trial except to contradict the witness as provided under Section 145[1] of the Evidence Act, 1872. The police officer has the power to examine the witnesses who are acquainted with the facts and circumstances of the case as provided under Section 161[2] of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”). The investigating officer will invariably reduce into writing any statement made by the witness before him in accordance with Section 161(3) of the Code of Criminal Procedure, 1973 and the said statements will be a part of the final report (charge-sheet) to be submitted under Section 173 of the Code to the Magistrate concerned. Section 162[3] of the Code provides that such statements made to the police officer by any person is not required to be signed and it further imposes a bar for use of such statements for any other purpose except as provided under the proviso to the said section.

The statements recorded under Section 161(3) of the Code are not substantive piece of evidence and the Court cannot suo motu make use of such statements in case if the testimony of the witness made during the trial is not consistent with the statement made before the police during the course of investigation. The object of Section 162 of the Code is to protect the accused against overzealous police officers and untruthful witness.  In almost every other trial the witnesses are either turning hostile or are giving exaggerated testimonies. Sometimes clever witness in their examination-in-chief conforms to what they have stated earlier to the police, but in the cross-examination introduces statements in a subtle way contradicting in effect what they stated in the examination-in-chief. In either case, for the defence as well as for the prosecution it becomes important to bring the earlier part of the statement which is inconsistent with the deposition, on the record of the case as otherwise it cannot be used for any purpose and the court will not be in a position to refer to it.

If the witness turns hostile and resiles from his earlier statement made before the police, then it becomes important for the Public Prosecutor to bring that part of the earlier statement on record of the trial and the manner is provided under Section 145 of the Evidence Act, 1872 read with the proviso to Section 162 of the Code. If the earlier part of the statement where the witness has supported the case of the prosecution is not brought on record and if the contradiction between the testimony in court and the earlier statement is not proved then the said statement though supporting the case of the prosecution would not be used for any purpose by the court. How much evidentiary value to attach to the earlier statement is for the court to decide on the sound principles of appreciation of evidence however it is foremost important to bring it on record. Similarly, if there are material improvements or contradictions or omissions which amount to contradictions found in the deposition then it would be necessary for the defence to bring the earlier statement made before the police on record and to further prove it in accordance with the manner prescribed under Section 145 of the Evidence Act, 1872. It is only after such contradictions are brought on record and thereafter proved the question would come of evaluating the testimony. Therefore, it becomes very important for both the prosecution as well as the defence to first bring the contradiction on the record and thereafter to prove it in accordance with the manner prescribed.

The Supreme Court while hearing a criminal appeal noticed certain inadequacies and deficiencies in recording of evidence during the criminal trial across the country. To deal with such deficiencies the Supreme Court issued suo motu[4] notice to Registrar General of all the High Courts, Chief Secretaries, Advocate General, etc. of all State/Union Territories to arrive at uniform best practices across the country. One of such inadequacy and deficiency which the Supreme Court noticed was regarding ‘Marking of Contradictions’. The Supreme Court in its order observed that “A healthy practice of marking the contradictions/omissions properly does not appear to exist in several States”.

 Divan, J. in his judgment in the matter of State of Gujarat v. Hiralal Devji[5] emphasised on the duty of the Presiding Judge to draw the attention of the advocate to the provisions of the Evidence Act so that the contradiction is proved in accordance with the provisions of law.  Divan, J. observed:

We also wish to emphasise that in many Sessions cases when an advocate appointed by the court appears and particularly when a junior advocate, who has not much experience of the procedure of the court, has been appointed to conduct the defence of an ‘accused person, it is the duty of the Presiding Judge to draw his attention to the statutory provisions of Section 145 of the Evidence Act…”

Let us examine what is contradiction and when can an omission amount to a contradiction and how it can be proved during the trial.

Contradiction: Meaning and Purpose

The word ‘contradict’ according to the Oxford Dictionary means “to affirm to the contrary; to be directly opposed to; to go counter to; to deny categorically”. The word contradiction is not defined under the Evidence Act or under the Code. Contradiction means “A state or condition of opposition in things compared; variance, inconsistency, contrariety”. The Cambridge Dictionary defines the word contradiction as “the act of saying something that is opposite or very different in meaning to something else what is said earlier”. To illustrate:

‘X’ states in the witness box that ‘Y’ stabbed ‘Z’;

But before the Police ‘X’ stated that ‘A’ stabbed ‘Z’.

This is a pure and simple case of contradictory statements. Contradictions have to be brought on record during cross-examination of the witness.

The purpose of cross-examination is three-fold, one is to test the veracity of the statement made by a witness in his examination-in-chief, second is to shake/impeach his credit[6] and third is to elicit from that witness any relevant facts which may be favorable to the case for the cross-examiner. Right to cross- examine the witness by the accused is the cardinal rule of a fair trial which is a fundamental right of every accused, similarly it is the duty of the court trying the accused to satisfy itself regarding the reliability/credibility of the witness. In order to impeach the credibility of the witness one of the methods provided under Section 155 of the Evidence Act is to bring out the proof of former statement inconsistent with any part of his evidence in court, which is liable to be contradicted. So, in order to impeach the credibility of the witness, if there is any inconsistency in the deposition with the earlier statement then the proof of the former statement has to be brought on record and thereafter it has to be proved.

In some cases, an omission to state a fact or circumstance in the statement under Section 161(3) of the Code, may amount to contradiction during the deposition in court, if the omission appears to be significant and otherwise relevant. The condition for the omission to amount to contradiction is that what is stated in deposition becomes irreconcilable with what is omitted and impliedly negatives its existence.

Let us understand when omission would amount to contradiction by an example: ‘X’ made a statement before the police under Section 161(3) of the Code, that he saw ‘A’ stabbing ‘C’ to death;

In the witness box, he states that he saw ‘A’ and ‘B’ stabbing ‘C’ to death.

‘X’ omitted to mention that he saw ‘A’ and ‘B’ both stab ‘C’ to death.

Not mentioning the name of ‘B’ in the statement before the Police amount to significant and relevant omission as it is not comprehensible that a witness who saw two persons stab ‘C’ would mention in the statement before the Police that he saw only one person stab ‘C’ to death and therefore in such situations omissions can also amount to contradiction and will have to be proved in the manner prescribed. If the statement before the Police does not come on record of the trial and if the court is not in a position to refer to it then it would lead to a miscarriage of justice. If the statement before the Police is brought on record and thereafter proved in accordance with the procedure then the court will be in a position to imply that B was not present. Therefore, whenever there is an inherent repugnancy between the testimony and the statement before the Police, then even an omission can become a contradiction.

Let us take an example of inherent repugnancy to understand the concept. If a witness makes a statement before the Police and the officer records the statement under Section 161(3) of the Code wherein:

The witness mentions that he saw ‘X’ shooting ‘Y’ dead with a gun,

During the trial, he deposes that he saw ‘Z’ stabbing ‘Y’ dead;

Both statements cannot stand together and are inherently repugnant. Third category of omissions resulting into contradiction would be where a negative aspect of a positive recital is found in the statement.

Example of this third category would be when in the recorded statement under Section 161(3);

The witness states that a dark man stabbed ‘X’,

whereas in the witness box the witness deposes that a fair man stabbed ‘X’.

As explained in the judgment of Tahsildar Singh v. State of U.P.[7], sometimes a positive statement may have a negative aspect and a negative one a positive aspect. When the witness says that ‘a man is dark’ which is a positive statement, it also means that ‘the man is not fair’, which is a negative aspect of the statement and which is implied in the positive statement. These are the three categories of omissions which may amount to contradiction and will have to be proved during the trial.

The benefit of proving contradictions correctly can be explained by demonstrating the judgment of State of Madhya Pradesh v. Banshilal Behari[8], it was a case of a double murder with 3 eyewitnesses, where the trial court sentenced the accused to death and the High Court acquitted the accused as the credibility of the witnesses were impeached by proving the contradictions on the record. The eyewitness during his deposition in the witness box stated as under:

“that when he went inside the house along with Mst. Bhanwari Bai, he saw the accused, standing there with his sword embedded in the neck of Banwari.”

The High Court disbelieved this fact because the witness in his statement to the Police made no mention that he saw the accused, standing there with his sword thrust in the neck of Banwari.

The High Court observed reagrding omission and how it was a contradiction in the following words:

“He was confronted with this omission under Section 145 of the Evidence Act, but he could offer no satisfactory explanation. Wigmore in his Treatise of Evidence has observed that failure to assert: a fact when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact. In such cases an omission amounts to contradiction or inconsistency. Now it is most natural that if this witness had seen the accused in a position to which he testified before the Additional Sessions Judge; he would have certainly stated it before the Police. This omission amounts to contradiction.”

The Court further goes on to explain the effect that if the inconsistency is found in the evidence then his entire evidence will have to be scrutinised carefully and if found unsatisfactory then his entire evidence will have to be rejected. The Court observes as under:

“It is true that the Courts in India have been reluctant to act on the maxim “falsus in uno falsus omnibus”, yet the disregard of the maxim cannot be pushed too far. The whole statement should be scrutinised and if found unsatisfactory, it must be rejected. I venture to suggest that where it is proved that a witness has deliberately lied in material particulars, his evidence will have to be looked upon with considerable suspicion.”

Method of marking previous inconsistent statements to prove contradiction 

Under the rule of best evidence in common law, the question of weight comes after the question of admissibility and the question of admissibility comes after the question of relevancy. The first requirement is that the evidence to be introduced during the trial should be relevant to the charge, second the oral, as well as documentary evidence, should be admissible under the best evidence rule and then comes the question of appreciation or giving weight to such evidence.

For bringing the contradiction on record, the cross-examiner can ask a witness about any previous inconsistent statements he may have made, but if the statement was to be brought on record during trial, the witness must be shown the document before he could be asked whether he had said something different on another occasion[9]. This common law principle requiring the cross-examiner to confront a witness with the contents of a prior inconsistent statement before the introduction of extrinsic statement was laid down in the famous case of Queen Carolines in the year 1820. The witness must be confronted with the time, place, persons present and the substance of an impeaching statement before extrinsic evidence could be admitted as proof that the statement had been made. The Rule in Queen Carolines caselaid down the requirement that a cross-examiner, prior to questioning the witness about his own prior statement in writing, must first show it to the witness.”[10] The same rule finds place in Section 145 of the Evidence Act, 1872. The rule is based on the principle of fair-play and is essential for proving the contradiction regarding any inconsistency in the previous statements.

In the judgment of Bal Gangadhar Tilak v.  Sriniwas Pandit[11], the Bombay High Court provides the purpose of bringing the attention of the witness before using the documents or earlier statements to impeach his credit. The High Court observes that On general principles it would appear to be sound that if a witness is under cross-examination on oath he should be given the opportunity, if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, salutary, and intelligible rule, and where a witness’s reputation and character are at stake the duty of enforcing this rule would appear to be singularly clear.”

Let us understand the true meaning and purport of Section 162 of the Code for making use of the statements recorded by the Police as evidence during trial. It is in essence allowing the use of statements recorded by the Police during the course of investigation to be used in evidence for a limited purpose. The first proviso to Section 162(1) makes an exception to the use of the statements recorded under Section 161(3), but it is an exception most jealously circumscribed under the proviso itself. “Any part of his statement” which has been reduced to writing may in certain limited circumstances be used to contradict the witness who made it. The High Court of Patna in the judgment of Badri Chaudhary v. Emperor [12], while interpreting the amendment to Section 162 of the Code of 1898 (which is almost identical to Section 162 CrPC, 1973) stated the limitation regarding the exception to the use of the statements in evidence. It held as under:

“The limitations are strict: (1) only the statement of a prosecution witness can be used; and (2) only if it has been reduced to writing; (3) only a part of the statement recorded can be used; (4) such part must be duly proved; (5) it must be a contradiction of the evidence of the witness in Court; (6) it must be used as provided in Section 145, Evidence Act, that is, it can only he used after the attention of the witness has been drawn to it or to those parts of it which it is intended to use for the purpose of contradiction,…”

Statements before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.  Under Section 145 of the Evidence Act, the attention of the witness has to be called to those parts of it which are to be used to contradict him. The Supreme Court in the judgment of V. R. Mishra  v. State of Uttarakhand [13] at para 19 has reiterated the procedure for bringing the contradiction on record of the trial. The procedure prescribed is as under:

Let us first understand the procedure for proving a pure and simple contradiction and then we will examine how to prove an omission which amounts to contradiction.

Once the examination-in-chief is completed by the Public Prosecutor and the witness deposes something contradictory to the previous statement then during cross-examination by the defence:

  • His attention has to be drawn to that part of the statement made before the Police which contradicts his statement in the witness box.
  • The attention of the witness drawn to that part must reflect in the cross-examination.
  • While recording the deposition of the witness, it becomes the duty of the trial court to ensure that the part of the police statement/case diary with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination.
  • Ideally the relevant portions of case diary/statement used for contradicting a witness must be extracted fully in the deposition. If the same is cumbersome at least the opening and closing words of the contradiction in the case diary statement must be referred to in the deposition and marked separately as a prosecution/defence exhibit.
  • If he admits to have made the previous statement then no further proof is necessary to prove the contradiction. The contradiction is brought on record and it is proved. It can be read while appreciating the evidence.
  • But if the witness after going through the earlier statement denies having made that part of the statement then it must be mentioned in the deposition.
  • By this process the contradiction is merely brought on record, but it is yet to be proved.
  • Thereafter when the investigating officer or the officer who recorded the said statement is examined in the court, his attention should be drawn to the passage marked for contradiction.
  • After going through the police statement if he says that the witness had made that statement then the contradiction can be said to have been proved.
  • If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the Court cannot suo motu make use of statements to police not proved in accordance with Section 145 of the Evidence Act.

During the examination-in-chief, if the witness does not support the case of the prosecution and ultimately, he is declared hostile by the court then with the permission of the court the Public Prosecutor will have to cross-examine the witness. The method of proving the contradiction and bringing the earlier statement on the record would be the same as mentioned above. If the Public Prosecutor does not confront the witness with earlier statements the contradiction would not be on record and he will not be in a position to prove it through the investigating officer. This has been held by 4-Judge Bench judgment of the Supreme Court in Tara Singh v. State[14] wherein it is held as under:

“….if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must in my opinion, confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence under Section 288. As two of the eyewitnesses were not confronted in the manner required by Section 145, their statements will have to be ruled out, and if that is done, the material on which the conviction is based is considerably weakened.”

Further, the Supreme Court in the judgment of State of Rajasthan v. Kartar Singh[15] has held that if the witness resiles completely from its earlier statement than, if the entire previous statement is read over to the witness and then confronted with the said statement that would be in compliance with Section 145 of the Evidence Act. The Supreme Court observed that it would have been pointless to draw the witness attention to each sentence and ask his explanation because the explanation would have been the same that it was false and given under pressure of police. However, the earlier statement will have to be read over in order to comply with the requirement of Section 145 of the Evidence Act. If a clever witness faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief then such witness can be cross-examined by the prosecution as held by the Supreme Court in the judgment of Dahyabhai Chhaganbhai Thakkar  v. State of Gujarat[16].

Method of marking previous inconsistent statements to prove omission which amounts to contradiction  

Omissions may have vital bearing upon the truth of the story given. But to prove the omission there is a slightly different technique. In the case of omission of the most vital and relevant aspect the contradiction is implied and is not so direct. In order to confront with the earlier statement there is nothing in the earlier statement which is contradictory as the witness might have improved his version during the testimony. So first the contradiction will have to be brought by asking questions in cross-examination which are permitted under Section 162 of the Code. Let us understand this by an illustration which is explained in the landmark judgment of Tahsildar Singh (supra):

  • ‘X’ makes a statement before the Police that “When I arrived at the scene I saw ‘A’ running away, chased by ‘B’ and caught by ‘C’”.
  • In the witness box ‘X’ says that “When I arrived at the scene, I saw A take out a dagger from his pocket, stab ‘D’ in his chest and run away. He was chased by ‘B’ and caught by ‘C’.

Here is an example of omission of two facts in the statement before the Police:

  • ‘A’ takes out a dagger from his pocket;
  • ‘A’ stabbed ‘D’ in his chest;

The said omissions are vital. It is not believable that the witness who says ‘A’ took out a dagger and stabbed D in the chest would not mention such a crucial and important fact. Further, it is also not possible that a police officer investigating the case would miss out on such a crucial piece of information. Therefore, it can be implied that the witness has improved his version and is not giving out the correct facts and therefore the omission becomes a contradiction.

However, in order to bring the contradiction on record first, the omission will have to be converted into a contradiction by asking the question in the cross-examination which will bring out the contradiction. The cross-examination in the case of omission becomes very important and it should be aimed at bringing out the contradiction between the statements. Let us understand what kind of questions would be admissible and what would not be admissible.

In the above case the cross-examiner may ask:

  1. I put it to you that when you arrived at the scene ‘A’ was already running away and you did not actually see him stab ‘D’ as you have deposed?
  2. No, I saw both the events.
  3. If that is so, why is your statement to the police silent as to stabbing?
  4. I stated both the facts to the Police.
  5. I am showing you from the original record your statement before the police where you have mentioned “When I arrived at the scene I saw ‘A’ running away, chased by ‘B’ and caught by ‘C’”
  6. I had stated but the Police did not write accordingly.

So the first thing to do is to convert the omission by putting a question which will bring out the contradiction. What is required is to take the statement of the police as it is and establish a contradiction between that statement and the evidence in court. If the cross-examination does anything else but to bring out the contradiction then it is barred under Section 162 of the Code and such questions will not be allowed to be put to the witness. Questions which cannot be asked are as follows:

  1. What did you state to the Police?
  2. Did you state to the police that A stabbed D?

Such questions cannot be asked as they attempt to get a fresh version of the witness and not a contradiction. Contradiction under Section 162 of the Code should be between what a witness asserted in the witness box and what he stated before the police officer. After bringing the contradiction on record the next step is to ask the Investigating officer or the officer who recorded the statement of the witness under Section 161(3) the question regarding whether he had given such a statement before the officer. If the officer states that the witness had not mentioned the said facts then the omission is proved during the trial.

Conclusion

The importance of proving contradiction in accordance with the manner prescribed is absolutely important and very crucial for practicing in the trial courts. If contradictions are proved as per the procedure then it can have a considerable impact on the trial. The illustrations given above are to highlight the best practice to prove contradictions. However, cross-examinations may vary from case to case and on the facts and circumstances as well as on counsel to counsel as well as on statements to statements.


*Jeet J Bhatt is a practicing Advocate at Gujarat High Court. He can be reached at jeetbhatt@gmail.com

[1] Section 145. Cross-examination as to previous statements in writing.— A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

[2]Section 161. Examination of witnesses by police.– (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

[3] Section 162. Statements to police not to be signed: Use of statements in evidence.– (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to 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:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act. Explanation.- An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

[4]In Re: To issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials, 2017 SCC OnLine SC 298.

[5] 1963 SCC OnLine Guj 32

[6]Section 146 of the Evidence Act, 1872

[7] 1959 Supp (2) SCR 875

[8]  1957 SCC OnLine MP 83

[9]Queen Carolines Case, (1820) 2 Brod& Bing 287,

[10]United States v. Cottrell, 1986 U.S Dist. LEXIS 19272 (E.D. Pa.Oct, 9, 1986)

[11] 1915 SCC OnLine PC 16

[12] 1925 SCC OnLine Pat 148

[13] (2015) 9 SCC 588

[14] 1951 SCR 729

[15](1970) 2 SCC 61

[16] (1964) 7 SCR 361

Case BriefsSupreme Court

Supreme Court: Explaining the requirement under Section 69 of the Evidence Act pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, the bench of SK Kaul and KM Joseph, JJ has held if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting.

The Court was deciding the following questions:

  • Is it still the requirement of law when both the attesting witnesses are dead that: under Section 69 of the Evidence Act, the attestation as required under Section 63 of the Indian Succession Act, viz., attestation by the two witnesses has to be proved?
  • Or Is it sufficient to prove that the attestation of at least one attesting witness is in his handwriting, which is the literal command of Section 69 of the Evidence Act apart from proving the latter limb?

Writing a detailed judgment running into over 270 pages, the Court said that in a case covered under Section 69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with. It explained

“It may be that the proof given by the attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act.”

In short, the Court held that, in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. The language of the Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act.

The Court further said that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness.

“This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness.”

It was further added:

  • in a case, where there is evidence which appears to conform to the requirement under Section 69, the Court is not relieved of its burden to apply its mind to the evidence and find whether the requirements of Section 69 are proved. The reliability of the evidence or the credibility of the witnesses is a matter for the Court to still ponder over.
  • making a totally incorrect statement in a will arouses suspicion. This is on the principle that the testator would not make an incorrect statement when he makes a will. If he makes a rank incorrect statement the inference is that he would not have made that will.
  • the requirements under Section 33 of the Evidence Act are not to be confused with the ingredients to be fulfilled even in a case under Section 11 of the CPC. The applicability of Section 33 of the Evidence Act also does not depend upon the nature of the decision which is rendered in the earlier proceeding.
  • while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same.

On the limits on power of a Hindu to execute a will and effect of Section 30 of the Hindu Succession Act, 1956 thereon

The Court explained that under Mitkashara Law, a Hindu could bequeath his separate and self-acquired properties even prior to the Hindu Succession Act being enacted. A Hindu being a member of the joint family could also possess his separate property which are of various kinds. They include obstructed heritage which is property inherited by a Hindu from another who is a person other than his father, father’s father or great grandfather, Government grant, income of separate property, all acquisitions by means of learning. A Hindu could execute a will bequeathing his separate and selfacquired property. As regards his authority to execute a will concerning his interest in the property of the joint family of which he is a coparcener, the law did not permit such an exercise.

The Court further stated n the case of property of the joint family as long as the property is joint, the right of the coparcener can be described as an interest.

“as long as the family remains joint, a coparcener or even a person who is entitled to share when there is a partition cannot predicate or describe his right in terms of his share. The share remains shrouded and emerges only with division in title or status in the joint family. Once there is a division the share of a coparcener is laid bare.”

Further, after the passage of the Hindu Succession Act even without there being a partition in the sense of a declaration communicated by one coparcener to another to bring about the division it is open to a Hindu to bequeath his interest in the joint family.

“In other words, the words “interest in coparcenary property” can be predicated only when there is a joint family which is in tact in status and not when there is a partition in the sense of there being a disruption in status in the family. Thus, the right of a Hindu in the coparcenary joint family is an interest. Upon disruption or division, it assumes the form of a definite share. When there is a metes and bounds partition then the share translates into absolute rights qua specific properties.”

On the impact of the Hindu Women’s Right to Property Act, 1937

The Court explained that Section 3(2) of the 1937 Act contemplates the situation, where, at the time when the Hindu dies after the enactment of the Act in 1937 (it came into force on 14th April, 1937 and it was repealed by Section 31 of the Hindu Succession Act 1956), in order that the widow acquires the same interest as her husband had under Section 3(2), the Hindu must die when he is not separated from the joint property. If a Hindu, when he dies, is separated and, at least, qua him, there is no Hindu Joint Family, it would not be a case where Section 3(2) would apply.

“… a Hindu when he dies intestate he may have an interest in a Hindu joint family and at the same time also have separate properties. Then qua his separate properties, Section 3(1) would apply whereas in regard to his interest in the joint family, Section 3(2) would govern. Section 3(1) cannot apply as the properties in dispute were not his separate properties.”

[V. Kalyanaswamy (D) v. L. Bakthavatsalam (D), 2020 SCC OnLine SC 584 , decided on 17.07.2020]

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., while addressing a matrimonial dispute, observed that,

“the only criterion or test under Section 14 of Family Courts Act for a Family Court to admit, evidence is it’s subjective satisfaction that the evidence would assist it to deal effectually with the dispute.”

Divorce petition was filed by the husband/respondent on 26th September, 2012 seeking dissolution of marriage on the ground of cruelty under Section 13(1)(ia)of the Hindu Marriage Act, 1955.

As evidence, husband filed a Compact Disc (CD) in which he had recorded how the wife was talking a friend of hers about the husband’s family which clearly was derogatory, defamatory and constituted cruelty.

Recording of ‘private’ conversation without the knowledge or consent of wife is in breach of her fundamental right to privacy.

Wife while objecting to the said evidence stated that since the evidence comprised in the CD was collected in breach of her fundamental right to privacy, the same is not admissible in a court of law.

She further argued that a person is entitled to criticise someone and not share the criticism with the world; and that a person has a right to all thoughts and behavioural patterns within one’s zone of privacy.

Additionally it has been urged that the husband’s action of surreptitiously and clandestinely recording the wife’s telephone conversation with her friend also amounts to an offence under Section 354-D of the Penal Code 1860, whereby the very act of recording such conversation is a criminal offence, punishable in law.

Family Court’s opinion on the CD as evidence:

“This court is of the opinion that the conversation between the respondent and her friend, wherein, she has allegedly spoken about the petitioner/ his family and the status of the matrimonial life would, certainly assist the court in effectively deciding the dispute between the parties. Such a piece of evidence is certainly relevant.”

One of the earliest, leading decisions on the question of admissibility of tape-recorded conversations is Regina v. Maqsud Ali, (1966) 1 QB 688 where a secretly tape-recorded conversation was the only incriminating piece of evidence implicating the accused persons for murder.

Analysis and Conclusion

While a litigating party certainly has a right to privacy, that right must yield to the right of an opposing party to bring evidence it considers relevant to court, to prove its case.

Since no fundamental right under our Constitution is absolute, in the event of conflict between two fundamental rights, as in this case, a contest between the right to privacy and the right to fair trial, both of which arise under the expansive Article 21, the right to privacy may have to yield to the right to fair trial.

In High Court’s opinion,

Legislature could not have enunciated it more clearly than to say that the Family Court “may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872.”

“…What credence, value or weightage is to be given to the evidence so received is discretionary upon the judge, when finally adjudicating the dispute.”

Without at all denigrating the importance of ethical and moral considerations, in the opinion of this court, to say that a Family Court should shut-out evidence at the very threshold on the basis of how it is collected, would be

(i) in breach of Section 14 which unequivocally expresses the intention of the Legislature ;

(ii) in breach of settled principles of evidence ; and

(iii) in breach of the enunciation by the Supreme Court that though the right to privacy is a fundamental right, it is not absolute and must be placed in the context of other rights and values.

Bench further observed that, in most cases that come before the Family Court, the evidence sought to be marshalled would relate to the private affairs of the litigating parties.

Thus, if Section 14 is held not to apply in its full expanse to evidence that impinges on a person’s right to privacy, then Section 14 may as well be effaced from the statute.

In context of the present matter, Court stated that conversation between the wife and her friend, which is the subject matter of recording on the CD, in which she is alleged to have spoken about the husband and his parents, would be a ‘relevant fact’ as understood in law, upon a combined reading of Sections 5, 7 and 8 of the Evidence Act. To that extent therefore, the contents on the CD are relevant for purposes of the divorce proceedings.

Though Court added to its conclusion that, if the right to adduce evidence collected by surreptitious means in a marital or family relationship is available without any qualification or consequences, it could potentially create havoc in people’s personal and family lives and thereby in the society at large.

While law must trump sentiment, a salutary rule of evidence or a beneficent statutory provision, must not be taken as a license for illegal collection of evidence.

In view of the above, no infirmity is found in Family Court’s decision. [Deepti Kapur v. Kunal Julka, 2020 SCC OnLine Del 672 , decided on 30-06-2020]

Op EdsOP. ED.

“If I want to deprive you of your watch, I shall certainly have to fight for it; if I want to buy your watch, I shall have to pay for it; and if I want a gift, I shall have to plead for it; and, according to the means I employ, the watch is stolen property, my own property, or a donation. Thus, we see three different results from three different means. Will you still say that the means do not matter?”                                                                                                    

Mohandas Gandhi

Picture this: A police officer illegally breaks into a house belonging to a suspect (in an incident unrelated to any investigation) but stumbles upon a crucial piece of evidence (say, a blood-stained knife which looks like a murder weapon, or a forged letter of credit). Now, there’s no doubt that this rather enterprising police officer has committed a crime (housebreaking/trespass, amongst others) but would the evidence seized still be admissible in a court of law? Or would it be termed what we lawyers call the ‘fruits of a poisonous tree’ and eschewed from consideration being inadmissible? Is it true that, even if something is admittedly stolen, it is still admissible in evidence?Bha

The short answer is Yes and this is precisely why the authors write this column. There is nothing in the Evidence Act, 1872[1] (“the Evidence Act”) forbidding the courts from looking at an illicitly obtained piece of evidence if it is otherwise relevant to the matter or goes on to establish the guilt or prove innocence. The Courts in India, as we shall shortly see, have time and again held that illegally or improperly obtained evidence is not per se inadmissible.

There are various ways in which evidence can be obtained illegally. Some of the common instances of illegally obtained evidence are:

  • Phone tapping/recording, except in accordance with law;
  • Illegal search and seizure;
  • Forced narcoanalysis;
  • Recording activities using secret cameras.

These instances are more common than one possibly imagines. This happens primarily because of:

  • A general attitude of disregard of procedures and due process guarantees;
  • The abysmal quality of our investigation;
  • Courts’ reluctance in excluding such illegally obtained evidence for the fear of letting a guilty person go scot free on account of what is perceived to be a mere technicality.

The perils of accepting the fruits of a poisonous tree are, therefore, very real. Other jurisdictions have moved away from the principle, either totally or, at any rate, substantially diluted it. Throwing out ‘illegally obtained evidence’ would undoubtedly incentivize the police in improving their methods and investigating in accordance with the law. It would also protect due process rights, personal liberty and check police arbitrariness.

In this background, the authors argue that there is a serious need to rethink the courts’ view on ‘admissibility of illegally obtained evidence’. The authors argue that this ‘ends justify the means’ approach is capable of grave prejudice and is largely responsible for the abysmal quality of investigations in the country and a serious reconsideration is needed.

Evolution of jurisprudence on the admissibility of illegally obtained evidence

Throughout history, the dominant approach of the judiciary has been not to exclude evidence on the ground of it being procured through illegal means. Evidence is weighed in a court based on its relevancy/probative value, and irregularity or impropriety in the method of procuring said evidence does not, by itself, make the evidence inadmissible.

One of the oldest cases on the question of admissibility of illegally obtained evidence is R v. Leatham [2]. This was a case of allegations of corrupt practices, heard before a Commission appointed under the Corrupt Practices Prevention Act, 1854. A letter written by the person suspected of bribery to his agent was produced by the agent. On information being subsequently filed, this letter was called for and produced by the secretary of the Commission. An objection was raised concerning the admissibility of the letter because it had been discovered in consequence of an inadmissible statement made by the accused.

In this background, Crompton, J. said, “It matters not how you get it; if you steal it even, it would be admissible” and the letter was admitted in evidence.

Closer to home, in India, we seemingly started off on the right track and, at least initially, did not follow the dictum of R v. Leathem. In Ukha Kolhe v. State of Maharashtra[3], the Court had the occasion of dealing with this issue; the question before the Court was: the admissibility of a blood sample in a case where the procedure for testing the blood sample was not followed and given this illegality – the Court excluded the results of the blood test, holding that, it is clear that the legislative intent was that the prescribed due procedure must be followed for collection of blood samples, and there can be no other way of collecting evidence other than what is specifically laid down. The Court ruled that the evidence cannot be held admissible when the due procedure has not been followed. To come to this conclusion, the Court drew strength from the landmark case of Nazir Ahmad v. The King-Emperor [4]where it was held, “… where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden…”

Indian courts’ shift to a more consequentialist approach: ‘the tree may be poisonous but the fruit is fine,’ in other words: ‘the ends justify the means’

The judicial policy of exclusion of illegally obtained evidence was short-lived. In R. M. Malkani v. State of Maharashtra[5], the Court admitted illegally obtained evidence. In this case, the police had fixed a tape-recording instrument to a telephone with the consent of only one of the parties to record the conversation, however, the other side contended that the tape-recorded conversation had been procured through illegal means. In this background, it was held that “even if evidence is illegally obtained it is admissible”.

Similarly, in Poorna Mal v. Director of Inspection of Income Tax (Investigation), New Delhi[6], while ruling on the question of admissibility of material seized in a search, alleged to be vitiated by illegality, the Court held that “unless there is an express or necessary implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out”.

In State of M.P. through CBIv. Paltan Mallah [7] , it was held that “the evidence obtained under illegal search could still be admitted in evidence, provided, there is no express statutory violation or violation of the constitutional provisions”. The Court also went on to say that “The general provisions given in the Criminal Procedure Code are to be treated as guidelines and if at all there is any minor violation, still the court can accept the evidence and the courts have got discretionary power to either accept it or reject it.”

It is clear that, even if a piece of evidence is procured by improper or illegal means, there is no bar to its admissibility if it is otherwise relevant and its genuineness is proved. This is the view that courts in India have taken. If the evidence is admissible, it does not matter how it has been obtained. The ends do justify the means. This consequentialist approach is deeply troubling. Indian courts seem to be unduly moved by the fear of letting the guilty escape on account of a technicality. But in doing so, the courts have set a very dangerous precedent and there is no incentive anymore for the police officers to comply-with, much less improve, legal methods. These decisions have been used over the years to turn a total blind eye to the most serious procedural transgressions by the police in the collection of evidence.

Departures from the consequentialist approach

There have been some cases, however, where the courts have disallowed illegally obtained evidence, if, in the given case, the strict rules of admissibility would operate unfairly against the accused.

In Umesh Kumar v. State of A.P.[8], for instance, a complaint with supporting documents was sent to the Secretary, Union of India written by a Member of Parliament seeking an enquiry against the then, DG, alleging that he had disproportionate assets in the name of his wife and her associates. Later, it was known that the complaint was not sent by the Member of Parliament and, on an enquiry, it was found that the supporting documents annexed with the complaint were obtained by one Y on the instructions of a senior officer. On an FIR being filed and subsequent enquiry, a charge-sheet was filed against another person named Z. Z approached the Supreme Court for quashing of the charge-sheet against him; in this background, a question arose concerning the complaint against the DG and the Court held that, even though the complaint was false, the documents annexed with the complaint, though illegally collected, were not fabricated and, therefore, could be taken note of. It being the settled legal position that “even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained.”

However, what is important is that the Court also went on to say: “However, as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. More so, the court must conclude that it is genuine and free from tampering or mutilation…”

What exactly would operate “unfairly” against the accused is a fact-intensive exercise and no Indian judgment has laid down the precise contours of this exception. This exception seems to have been inspired by the “Unfair Operation Principle” in UK which prohibits admission of evidence if, in the given case, its reception runs contrary to the principles of basic fairness. The principle gives courts the discretion to decide, on a case to case basis, as to what would operate fairly or unfairly against the accused, and in appropriate cases, exclude such evidence.

The Supreme Court in Selvi v. State of Karnataka[9], while testing the legality of scientific tests like polygraph or narcoanalysis, made some interesting observations in this regard. The Court opined that if involuntary statements were given weightage during a trial, the investigators might feel incentivized to, “compel such statements – often through methods involving coercion, threats, inducement or deception.” In the view of the Court, the right against self-incrimination served as a safeguard against torture and other methods that could be used to elicit information and the exclusion of such testimonies was important as otherwise, investigators will rely more on such violative methods instead of following the due process of law and this would be against the protection against self-incrimination granted by the Constitution. The Court remarked, “The frequent reliance on such `short-cuts’ will compromise the diligence required for conducting meaningful investigations.” The Court seemed to suggest or at least presage exclusion of unconstitutionally obtained evidence.

Selvi[10] was also observed by one of the most celebrated and landmark judgment of recent times; the nine-Judge Constitution Bench judgment in K.S. Puttaswamy v. Union of India[11] which recognised the right to privacy as a fundamental right, entitled to protection as a part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. The Court also overruled certain judgments which held contrary views like KharakSingh[12] which was relied on in R.M. Malkani[13].

Taking this step of recognition of the right to privacy as an inherent fundamental right further, the Bombay High Court in Vinit Kumar v. CBI[14], set aside certain interception orders and directed the destruction of copies of the intercepted messages. Here, the issue was whether the orders which directed interception of telephone calls were ultra vires of Section 5(2) of the Telegraph Act, 1885[15] and the Rules and whether they were violative of the petitioner’s fundamental rights.

The petitioner relied heavily on a judgment of the Supreme Court in People’s Union for Civil Liberties (PUCL) v. Union of India[16] which, being way ahead of its time, had recognised “hold[ing] a telephonic conversation in one’s home or office without interference” as a part of the right to privacy. The Court observed that adopting the adage ‘the ends justify the means’, “would amount to declaring the government authorities may violate any directions of the Supreme Court or mandatory statutory rules in order to secure evidence against the citizens. It would lead to manifest arbitrariness and would promote the scant regard to the procedure and fundamental rights of the citizens, and law laid down by the Supreme Court. This decision, again, seems to place unconstitutionally obtained evidence on a higher pedestal than evidence which is merely illegally obtained. Given the fact that the a huge body of precedent (permitting the admissibility of illegally obtained evidence) still stands, it would be interesting to see if other courts would be inclined to pursue and take further the Bombay High Court’s decision in Vinit (supra) and the Supreme Court’s  decision in Selvi (supra) and start excluding even illegally obtained evidence. The authors argue that they should since not doing so would be tantamount to saying that: something which is illegally obtained may still be termed ‘constitutionally obtained’ and received in evidence.

The Bombay High Court judgment in Vinit Kumar[17], needless to state, is extremely welcome though its capacity for general application in other cases is doubtful given the fact that the rules under the Telegraph Act specifically allow the destruction of illegally obtained evidence. Evidence illegally obtained in other proceedings, where there is no specific provision of destruction/exclusion, is still likely to be held admissible and the general rule still remains: “even if evidence is illegally obtained it is admissible”.

Comparison with other jurisdictions

In the United States (‘US’), before 1914, warrantless and illegal searches were common and evidence procured from these searches was admissible in court. However, in 1914, the United States Supreme Court had to deal with the question of a warrantless search of a house wherein the evidence collected was used to convict the owner of the house for illegal gambling. This was the case of Fremont Weeks v. United States[18] where the Court overturned Week’s conviction based on the Fourth Amendment of the Constitution of the US, which bars the use of evidence secured through a warrantless search and seizure. Thus, was born the exclusionary rule, which is a judicially created remedy used to check police misconduct in obtaining evidence. As per the exclusionary rule, a Judge may exclude incriminating evidence from a criminal trial if there was police misconduct in obtaining the evidence. The exclusionary rule was the predecessor of the doctrine of “fruits of the poisonous tree”.

The doctrine of the “fruits of the poisonous tree” holds that the evidence (fruit) from an illegal search or seizure which is a tainted source (the tree), would also be tainted and hence, inadmissible.

The term “fruits of the poisonous tree” was first used by Frankfurter, J. in Nardone v. United States[19] wherein it was held that, in a prosecution in a federal court, evidence procured by tapping wires in violation of the Communications Act of 1934 is inadmissible. This was applied not only to the intercepted conversations but also to evidence procured through the use of knowledge gained from such conversations. Eventually, there was a difference of opinion and contradictory judgments with regard to the exclusionary rule until 1961, when, in Mapp v. Ohio[20], the US Supreme Court held 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. Though this initially applied to criminal cases only, in recent times, the US courts have also applied this to civil cases.

However, as with most things in criminal law, the exclusionary rule also has some exceptions which attempt to strike a balance between the imperatives of fact-finding/prosecution and the protection of the due process of rights of the accused. The exceptions are as follows[21]:

  1. Use of illegally obtained evidence not for the purpose of proving guilt but to impeach the credibility of the accused should he/she choose to depose;
  2. Inevitable discovery: By virtue of this exception, something which the police would have found inevitably, even without the illegal search/seizure/method, is taken to be admissible.
  3. Good faith: An officer acting under the impression of being permitted by law, for instance, conducts a search believing a warrant to be authorised but later revoked, is believed to have acted in good faith and any discovery is held admissible in law. This exception was created by the Supreme Court in United States v. Leon[22], because, according to the majority opinion, the rule was designed to deter police misconduct, and excluding evidence when the police did not actually misbehave would not deter police misconduct and only lead to vital evidence being eschewed without any redeeming value.
  4. Independent source: Evidence procured by illegal means by an independent source or third person which in part at least is not obtained from a tainted source. An independent source must be someone absolutely unconnected to the illegality of the arrest, search, and/or seizure (People v. Arnau[23]).
  5. Attenuation. If the link between an illegal search and legally admissible evidence is thin, the evidence is admissible, even if the illegal search may have set in motion the chain of events that led to evidence being revealed. In other words, unless it can be proven that the evidence resulted directly from some illegal action taken by law enforcement officials, it can be admitted.  In People v. Martinez[24], a three-part test was established for this exception: “(1) the time period between the illegal arrest and the ensuing confession or consensual search; (2) the presence of intervening factors or event; and (3) the purpose and flagrancy of the official misconduct“.

In the United Kingdom (‘UK’), Section 78(1) of the Police and Criminal Evidence Act, 1984  (“the PCE Act”) states that, in any proceedings, a court may refuse to allow evidence, 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 an adverse effect on the fairness of the proceedings; this is known as the “Unfair Operation Principle. Section 82(3) of the PCE Act also gives courts the power to refuse evidence (whether by preventing questions from being put or otherwise) at its discretion.

Back home in India, the Law Commission of India, in its 94th Report[25], suggested the incorporation of a provision Section 166-A in Chapter 10 of the Evidence Act which, if enacted, would have read as “In a criminal proceeding, where it is shown that anything in evidence was obtained by illegal or improper means, the court, after considering the nature of the illegality or impropriety and all the circumstances under which the thing tendered was obtained, may refuse to admit it in evidence, if the court is of the opinion that because of the nature of the illegal or improper means by which it was obtained its admission would tend to bring the administration of justice into disrepute.”

The Law Commission also suggested that a court, while making the above assessment, may consider all the circumstances surrounding the proceedings and the manner in which the evidence was obtained, including but not limited to:

  1. the extent to which human dignity and social values were violated in obtaining the evidence;
  2. the seriousness of the case;
  3. the importance of the evidence; 
  4. the question whether any harm to an accused or others was in?icted wilfully or not, and;
  5. the question of whether circumstances were justifying the action, such as a situation of urgency requiring action to prevent the destruction or loss of evidence.

However, none of the above was ever implemented and the courts, in India, except a handful of decisions to the contrary (not capable of general application), continue to go by the dictum of ‘even if it’s stolen, it is admissible in evidence’.

Way forward

“There is no crueller tyranny than that which is perpetuated under the shield of law and in the name of justice.” – Montesquieu

The time is always right to do what is right. The countries which originally incorporated this principle have moved away from it and so must India. On the judiciary’s side, the Supreme Court’s judgment in Puttuswamy, followed by the Bombay High Court’s judgment, is definitely a step in the right direction and a step we welcome. Having said that, an amendment in the law is imperative to clearly lay down a rule where the court is given the discretion to exclude illegally obtained evidence; which discretion may be exercised – keeping in mind a variety of circumstances as detailed above. If the change doesn’t come-in from the legislature, the judiciary must clearly lay down exclusionary principles (as in US) or put the ‘unfair operation principle’ (inspired from UK) on firmer legal ground. It is high time that the law, instead of looking the other way, must disincentivise illegal investigations and protect due process by refusing to receive illegally obtained evidence. Any other view would be tantamount to the law missing the forest for the (poisonous) trees.    


*Former Judge. Partner, L&L Partners, Law Offices.

**Associate, L&L Partners. The views of the authors are personal.

[1] Evidence Act, 1872 

[2] (1861) 8 Cox CC 498

[3]  (1964) 1 SCR 926 

[4] 1936 SCC OnLine PC 41   

[5] (1973) 1 SCC 471 

[6] (1974) 1 SCC 345 

[7] (2005) 3 SCC 169, ¶ 32  

[8] (2013) 10 SCC 591 

[9] (2010) 7 SCC 263  

[10] Ibid

[11] (2017) 10 SCC 1 

[12] Kharak Singh v. State of U.P., (1964) 1 SCR 332  

[13] R. M. Malkani v. State of Maharashtra, (1973) 1 SCC 471

[14] 2019 SCC OnLine Bom 3155  

[15] Section 5(2) of the Indian Telegraph Act, 1885  

[16] (1997) 1 SCC 301 

[17] 2019 SCC OnLine Bom 3155

[18] 1914 SCC OnLine US SC 61

[19] 1939 SCC OnLine US SC 151

[20] 1961 SCC OnLine US SC 136  

[21] ‘The Law: Illegally Obtained Evidence’ (Universal Class), available at-https://www.universalclass.com/articles/law/illegally-obtained-evidence.htm Last accessed on 08.04.2020.

[22] 1984 SCC OnLine US SC 195

[23] 58 NY 2d 27(N.Y.1982)

[24] 38 Cal 2d 556

[25] 94th Report of Law Commission of India on Evidence obtained Illegally or Improperly: Proposed Section 166-A, Indian Evidence Act, 1872

Op EdsOP. ED.

The matter is called out, you walk into court confidently thinking all your documents will be marked because you have them neatly arranged in a compilation…15–20 minutes later you wonder why the documents are marked for identification and half your documents are not admitted. That senior who appeared just before me got his documents admitted….what happened to me?

Well most of us have faced this at least in our junior days at the bar. Why did that happen?

The answer lies in the realm of sufficiency of proof of the document sought to be marked.

I’m going to discuss how to get over this as best as possible given the documents you have in hand in a given case.

First we need to understand that evidence consists ­­of “documentary evidence” and “oral evidence”

This article restricts itself to proof of documentary evidence.

Documentary evidence under the Evidence Act, 1872 (the Act) is of various types:

Broadly and most often we deal with “private documents”[1]. Documents such as letters, agreements, emails, etc. exchanged between contesting parties to a litigation are private documents.

The next set of documents which one deals with are “public documents”[2] for example documents such as a  birth certificate, marriage certificate, a bill of a public water utility or electric company or an FIR filed before the police station. In these cases the record of the authority or a certified copy[3] or an extract is issued by an officer of a public authority discharging functions delegated to him – these are public documents. A public document is one which is basically a reproduction of an entry contained in some kind of public register, book or record relating to relevant facts or a certified copy issued by the authority as for example a birth certificate providing details such as date of birth, place where the birth took place the name of the mother, etc. Generally speaking, courts do accept public documents more readily than private documents as there is a presumption that the risk of tampering with public documents is far less as it has come from a reliable source such is the public record or register duly maintained in an official capacity. The Courts also consider the entries in such records maintained by public authorities to be relevant facts[4]. Courts generally lean in favor of accepting or admitting the contents of public documents since these documents have as their genesis some reliable source and can be traced back to that reliable source for verification if necessary. However even a public document still doesn’t stand proved by the mere fact of its production. It must be proved in the normal manner of proof as discussed hereafter when an objection to it is taken.

Sometimes you also deal with what are known as ancient documents or documents which are more than 30 years old[5]. Section 90 of the Act provides a presumption with regard to these documents.

There is also a category of documents which we come across which could be public or private documents but they are not documents in original. Proof of such documents poses a further complication when it comes to proving the same. To prove such documents we need to lead what we all know as secondary evidence[6].

We also come across cases where something is said by one person to another and that is not recorded in writing between the two persons. In that case only “oral evidence” would have to be given as opposed to “documentary evidence”.

For all these cases what is needed to be proved is the truth of the  facts stated in the documents be it an original document or a carbon copy or xerox copy or a public document.

The question which really requires to be answered is how is that done and what is the correct mode and manner of doing so.

 Under the Act, the court usually accepts a fact is proved when after considering the document and the evidence before it, it comes to the conclusion that what is stated in the document is believable based on what the document on the face of it states along with what a witness to the document states about the contents and the manner in which the document was prepared/authored. This is the heart of the matter and it is when the court believes not only in the existence but also truth of contents that the document would be exhibited by the court.

At the stage of exhibition of the documents the court looks at two basic aspects, one the existence of the document and secondly the proof of contents being sufficiently deposed to by a witness having requisite knowledge of the contents thereof. On being satisfied of both these criteria the document in question will be exhibited. At the stage of marking or exhibiting documents the truth of what is stated in the document is not considered and is left open to final evaluation at the trial after cross-examination is conducted and the entire testimony of the witness on the document is weighed. It is then that the court concludes the document speaks the truth or not and decides what weightage is to be given to it for arriving at a final decision in the matter.

Objections to exhibition of documents are of two basic types and are indicated in the admission and denial statement exchanged between parties once a compilation is tendered to the opposite party. There can be an objection/denial of the very existence of the document and secondly an objection/denial of the truth of contents of the documents. Depending on the objection taken the mode of proof is required to be tailored.

PROOF OF A DOCUMENT WHEN THE CONTENTS ARE NOT DISPUTED BUT THE OBJECTION IS TO THE FACT THAT IT IS NOT AN ORIGINAL

Where the document is not disputed in terms of its existence or contents but the objection taken is that the document in the compilation is a xerox copy and not the original (since it may be lost or not traceable), the mode of proof would be in the case of a private document to lead secondary evidence which is discussed later. However this is only necessary if the court so insists as once the existence and contents is accepted or not denied even a copy would be exhibited as there is no real objection and what the court has to consider is the truth of contents. Similarly in the case of a public document (if the court so insists) the mode of proving such a public document is to have as required either the actual public document produced by issuing a witness summons through court or alternately having a certified copy or extract of the document[7] produced as proof of the contents of the public document. Here in such a case a witness is asked by way of a witness summons to merely produce a document in position of the public authority. The procedure followed usually by the courts is that the original document is taken possession of from the public authority (who attends court at a time fixed), and exhibited after he/she confirms it forms part of the official records maintained by the authority. It is important that this fact i.e. that the document produced is shown to form part of the official record maintained by the authority which is producing it is clearly stated by the witness summoned for the purpose. The court after being satisfied of this i.e. that the documents are produced from the authentic records of the public authority would then exhibit the documents. This is how a public document can be proved in case there is no contest to the existence of the public document but the objection is about it not being an authenticated document.

 PROOF OF A DOCUMENT WHEN THE CONTENTS AND EXISTENCE ARE BOTH DENIED

In case of a private or public document where there is a denial of the existence and contents then in that case it would be necessary to prove such document by way of the ordinary method of proof of documents and their contents. It matters not that the document is a public document. The Bombay High Court has in Om Prakash Berlia v. Unit Trust of India [8] held that even a public document requires proof in the ordinary course and it is not that a public document is proved by its mere production by a public authority where the contents are disputed. In that case it was held: (SCC Online paras 13, 14 and 26)

13. It will have been noticed that the production of certified copies under the provisions of Section 63 is a means of leading secondary evidence. Secondary evidence can, obviously, be led only of what the document states not as to whether what the document states is true. Under Section 65(e), secondary evidence may be given when the original is a public document within the meaning of Section 74 and only a certified copy of the public document is admissible. Secondary evidence of a public document so led only proves what the document states, no more. In other words, he who seeks to prove a public document is relieved of the obligation to produce the original. He can produce instead a certified copy. All other requirements he must still comply with.

  1. In this context this Court’s judgment in C.H. Shah v. S.S. Malpathak [9] must be noted. The Court was concerned with deciding whether the original of a public document has to be proved in the same manner as any other document. A consideration of the relevant provisions of the Evidence Act clearly showed the Court that the only difference which the Act made between public and private documents was in regard to the form of secondary evidence which is admissible viz. a certified copy, and in regard to the presumption of the genuineness of the certified copy; in all other respects no distinction was drawn by the Act between public and private documents.

                                  *                                    *                                      *

  1. In the result, I hold that the said copy and extract (Exhibits 17 and 18) do not establish, even prima facie, the truth or accuracy or correctness of the contents of their originals. They prove only what the contents of their originals are.”

                                                                                                                (emphasis supplied)

In case of disputed documents the first step is producing the original or primary direct evidence[10] and then leading the evidence of the person who has made the original unless of course that person is no longer available. In such a case the first step is producing the original and annexing it with the compilation of documents and then leading the evidence of the person who has made the document or been party to its formation. In case the document is available in original with the party proposing to prove it as for example an agreement retained in original by him, there appears no difficulty. However, in case the document is lost then the only way is to lead secondary evidence of the same through a copy made in accordance with Sections 63 and 65 of the Act. However in the case for example of a letter which is written by Mr. A to Mr. B which is sought to be proved by Mr. A, first that letter in original will have to be produced. This can be done by Mr. A issuing a notice to produce to Mr. B because obviously having written the letter to Mr. B the letter would not remain with him. In response if Mr. B disputes that the letter was even received by him one would have to prove that the letter was duly received by Mr. B by giving evidence of proof of delivery by registered post AD or evidence of the fact that Mr. B had responded to the letter or had referred to that letter in some other later of correspondence or it was hand delivered. In such a case then appropriate secondary evidence would have to be led while annexing to the compilation instead of an original a copy which conforms with the requirements of Section 63 of the Act. In both the above cases what is achieved is only the first stage of obtaining the requisite document and making it a part of the compilation relied on. In both cases the only thing proved by the above process is the existence of the document.

However for exhibition of the document it is necessary to depose to the truth of contents of the document i.e. what is said in the agreement or what was written in the letter is true and correct.

In both the cases what would be necessary is to prove the contents of the document because what is important is not that something is really stated in the document but whether what is stated in the document is correct. That can only be proved by somebody who knows about the document itself or who was a party to making the document or had verified the document or approved it or signed it with knowledge of its contents. This is because evidence must be direct primary evidence under Sections 60 to 62 of the Act.

The next step after the production of the document in original or as a copy (secondary evidence) in the compilation of documents is to lead appropriate evidence of the truth of the contents of the document sought to be proved. That needs to be done in the aforesaid example by the evidence of a person (who was a party to or had been intricately involved with or drafted/gave instructions to make the agreement or letter) stating so in the witness box or in an affidavit of examination- in- chief about these facts. It is not enough to only depose that the letter or agreement is signed by the witness, he must also depose to some particulars of the letter or agreement showing he is personally aware about what is mentioned therein. As an example if Mr. A only deposes that he signed the letter but that it was written by somebody else and he had not verified its contents then the letter doesn’t stand proved because all that Mr A is able to do and say is that he signed such a letter. This only proves his signature and at best the existence of the same. What is crucial is the contents of the letter and that can only be proved by the person who authored the letter on the basis of knowing the facts stated in the letter. Therefore what is examined by the court and what must be shown if the document is sought to be proved sufficiently for exhibition is to give direct evidence under Section 60 of the Act by the person who is aware of the facts of the case. The person who gives evidence must not only give direct evidence but he must also have the necessary knowledge about what is stated in the document which he is trying to prove. This is because what is necessary is that evidence cannot be hearsay evidence. I will shortly deal with this. To prove the contents of a document what is needed is to prove by direct evidence of the person concerned with the transaction (for public and private documents) the actual facts stated in the document. A reading of the evidence must show that the witness has personal knowledge of what the contents of the letter or agreement talk of and can depose sufficiently thereon. In case the evidence shows the witness attempting to prove the document is not aware of the contents and another person is aware of it the document will not be exhibited till that other person has deposed on the contents of the document. It is only once this is done that the document can be stated to be proved sufficiently for exhibition. Care must be taken to see that someone who can vouchsafe for the contents must depose to the documents.  The Supreme court in Narbada Devi Gupta v. Birendra Kumar Jaiswal[11] has held: (SCC p. 751)

16…. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue”…”

(emphasis supplied)

One of the best and most instructive cases on proof of documents is that of Madholal Sindhu v.  Asian Assurance Co. Ltd.[12] It is therein held that it is not sufficient to merely prove that somebody signed a document and the witness could prove or identify the signature, what is required is to prove that the person who signed the document was aware of the document and its contents and the transaction. In that case it was held as follows: (SCC Online paras 4-6, 8 & 9)

“4. Mr. Somjee argued that under the provisions of the Evidence Act all facts except the contents of documents could be proved by oral evidence, that so far as the contents of documents are concerned, they could be proved either by primary or secondary evidence, that the primary evidence of the documents meant the documents themselves produced before the court, and that if the documents were alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as was in that person’s handwriting need be proved to be in his handwriting. He, therefore, urged that the said various documents which he sought to prove before the court need only be proved to be in the handwriting of the persons making the same and if he succeeded in doing so by calling the evidence of persons acquainted with the handwriting of the persons who signed or wrote out the said several documents, he was entitled to put them in and argued that the contents of the said documents were also proved by him.

  1. This proposition sounded to me a novel one. I had in fact never heard any such argument before. Section 67, Evidence Act only permitted the proof of the signature or handwriting of the person signing or writing the document to be given and considered it to be sufficient in those cases where the issue between the parties was whether a document was signed or written wholly or in part by that person. It did not go so far as to say that even if it was proved that the signature or the handwriting of so much of the document as was alleged to be in the handwriting of the person, was in his handwriting, it would go to prove the contents of that document. No doubt the proof insofar as it was sought to be given in the evidence of Balkrishna Bhagwan Deshmukh of the signature or handwriting of the said various documents could have established that those documents were signed or written in the handwriting of Deshpande, Paranjape or Jamnadas; but the matter could rest there and would carry the plaintiff no further.
  2. It certainly could not prove that the contents of those various documents which were thus proved to have been signed or written by Deshpande, Paranjape or Jamnadas were correct, and unless the plaintiff succeeded in proving the correctness of the contents of those various documents, he would not advance any step towards proving his case. Mr. Taraporewalla for the bank and Jamnadas supported Mr. Somjee in his submission. He submitted that once the signatures were proved the letters as a whole were proved, though the Court might say that the contents thereof were not proved in the sense that they were true. He submitted that the Court could admit those documents in evidence with that reservation, a reservation which to my mind went to the root of the whole matter and deprived the documents of all value whatsoever even if they might be admitted by the Court in evidence.

                         *                                *                                 *

  1. Mr. Setalvad on the strength of this authority urged that the documents which were sought to be tendered by Mr. Somjee through this witness Balkrishna Bhagwan Deshmukh could not be admitted in evidence without calling the signatory or the writer thereof who could be the only persons competent to depose to the truth of contents of the said various documents. Mr. Somjee replied urging that the usual mode of proving documents was by calling the writer or by the testimony of the persons who were acquainted with the handwriting of the persons in question, and he was thus entitled to prove the various documents which he sought to tender in evidence through this witness Balkrishna Bhagwan Deshmukh who was acquainted with the signatures or handwriting of the persons who signed or wrote the said various documents.
  2. As I have already observed it was futile for Mr. Somjee to merely prove the signatures or the handwriting of the persons who signed or wrote the various documents without calling the said persons who were the only persons who could depose to the correctness of the contents of those various documents. Whether Deshpande, Paranjape or Jamnadas signed or wrote the various documents, was not the only issue before me. It that had been the only issue, the proof of the signatures or the handwriting of Deshpande Paranjape or Jamnadas would have been enough. What was in issue, however, before me was apart from Deshpande, Paranjape or Jamnadas having signed or written those documents, whether the contents of those various documents were correct. This certainly could not be proved by Balkrishna Bhagwan Deshmukh who had no personal knowledge whatever about the contents of those various documents. It would have served no purpose whatever to admit those documents in evidence with the reservation as suggested by Mr. Taraporewalla. I was supported in this conclusion of mine by the remarks of the appeal Court in — ‘11 Bom HCR 242 [13] at p. 246 (A)’, and I accordingly declined to admit in evidence the said various documents in spite of Balkrishna Bhagwan Deshmukh deposing before me that the said various documents were signed by or were in the handwriting of Deshpande, Paranjape or Jamnadas. (The rest of the judgment is not material to the report.)”

The principles in Madholal case[14] stand the test of time even today and this judgement has even been referred to in a later judgement of the Bombay High Court Sir Mohammed Yusuf v.  D[15] where it is quoted with approval. The following passages are relevant:

13. Mr. Peerbhoy contended that the entire document (Ext. 28) could not be admitted in evidence inasmuch as D had only proved the signature below the document. The Tribunal gave a ruling stating that in their opinion proof of the signature was not proof of the contents of the document, which bears the signature. They added that “it would be open to Mr. Peerbhoy to contend that despite the admission of the document on record what was proved was that the document bore the signature of Abreo and not that their contents were true”. In their report, the tribunal have stated that proof of the signature does not amount to proof of the contents of Ext. 28. Nor did it mean that even if Abreo had received that copy letter, he showed it to Abdul Rahman at any time. According to the Bar Council Tribunal, the evidentiary value of Ext. 28, even if it is held proved, was almost nil. As pointed out above, the mode of proving Ext. 28 that was initially undertaken by D was to identify the signature of Abreo as a person who was acquainted with Abreo’s handwriting (vide Section 47 of the Evidence Act). The ruling given by the tribunal may hold good so far as the question of the proof of the contents of Ext. 28 is concerned, (we will discuss this question presently at some length), if the only mode of proof adopted by D was to identify the signature of Abreo. It certainly does not apply to the second mode of proof which D sought to adopt, for the first time, in his further examination-in-chief before the Bar Council Tribunal by saying that Abreo put his signature below Ext. 28 in his presence, for this amounts to proof of the execution of the document. We are not, however, disposed to accept the improved version of D, when he tried to say, for the first time before the Tribunal, that he had seen Abreo putting his signature below Ext. 28. The mode of proof that D adopted in the first instance fell within the purview of Section 47 of the Evidence Act, that is to say, it amounted to his opinion about the signature of Abreo on the basis of his acquaintance with the latter’s hand-writing. The Bar Council Tribunal had probably in their mind the decision of Bhagwati, J. (as he then was) in Madholal Sindhu v. Asian Assurance Co.[16] The Advocate General has strongly relied upon this judgment and contended that proof of the signature below the document does not amount to proof of the contents of the document. In that case an attempt was made to prove through the sub-accountant in the head office of the Bank several documents consisting of letters and documents executed by Jamnadas in favour of the bank and also the resolutions of the executive committee of the bank and the letters addressed by the bank to Nissim by proving the handwriting in which all the documents purported to have been written. Bhagwati, J. characterised this attempt “as an attempt to prove the handwriting of these various documents without calling in evidence the persons who had written the same or who were acquainted with the contents thereof so that they might not be subjected to cross-examination at the hands of the counsel for the official Assignee. The witnesses who could have proved those documents and the contents thereof would have been Deshpande, the managing director of the bank. Paranjape the Secretary of the bank, Jamnadas and Nissim”. Bhagwati, J. referred to Section 67 of the Evidence Act and observed:

“Section 67 of the Evidence Act only permits the proof of the signature or handwriting of the person signing or writing the document to be given and considers it to be sufficient in those cases where the issue between the parties is whether a document was signed or written wholly or in part by that person. The section does not go so far as to say that even if it was proved that the signature or the handwriting of so much of the document as was alleged to be in the handwriting of the person, was in his handwriting, it would go to prove the contents of that document. No doubt the proof insofar as it was sought to be given in the evidence of Balkrishna Bhagwan Deshmukh of the signature of handwriting of the said various documents could have established that those documents were signed or writen in the handwriting of Deshpande, Paranjape or Jamnadas; but the matter could rest there and would carry the plaintiff no further.”

  1. From the facts as they appear from the judgment, it appears to us that the evidence given by Deshmukh in that case amounted to proving the handwriting of the persons concerned under Section 47 of the Evidence Act. We are inclined to the view that the proof offered by the evidence of Deshmukh was proof of the handwriting by a person acquainted with that handwriting and, therefore, amounted to opinion evidence under Section 47 of the Evidence Act. What is important to note is that Bhagwati, J. has gone to the length of holding that proof of the signature or the handwriting under Section 67 of the Evidence Act does not amount to proof of the contents of that document.

                                *                         *                                   *

  1. Section 67 does not prescribe any particular mode of proof. It lays down no new rule whatever as to the kind of proof that must be given. The section merely states with reference to the deeds what is the universal rule in all cases viz. that a person who makes an allegation must prove it. The question that arose before the Supreme Court in Mobarik Ali case[17] was, whether the authorship of the document can be proved without adducing evidence in proof of the signature of the person concerned. In that case, the prosecution relied upon a number of letters and these letters fell under two categories; (1) Letters from the appellant (accused) either to Jessawala or to the complainant and (2) Letters to the appellant from Jassawalla or the complainant. Most of the letters from the appellant relied upon bore what purported to be his signatures. A few of them were admitted by the appellant. There were also a few letters without signatures. The complainant and Jassawalla spoke to the signatures on the other letters. The objection raised on behalf of the appellant was that neither of them had actually seen the appellant writing any of the letters nor were they shown to have such intimate acquaintance with his correspondence as to enable them to speak to the genuineness of these signatures. The trial Judges as well as the learned Judges of the High Court had found, that there were sufficient number of admitted or proved letters which might well enable Jassawalla and the complainant to identify the signature of the appellant, in the disputed letters. They also laid stress substantially on the contents of the various letters, in the context of the other letters and telegrams to which they purported to be replies and which formed the chain of correspondence as indicating the genuineness of the disputed letters. The learned counsel objected to this approach on a question of proof. Their Lordships of the Supreme Court observed:

“We are, however, unable to see any objection. The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact the evidence relating thereto may be direct, or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents or of the signature by one of the modes provided in Sections 45 and 47 of the Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, also his knowledge of the subject-matter of the chain of correspondence, to speak to its authorship. In an appropriate case, the Court may also be in a position to judge whether the document constitutes a genuine link in the chain of correspondence and thus to determine its authorship. We are unable, therefore, to say that the approach adopted by the Courts below in arriving at the conclusion that the letters are genuine is open to any serious legal objection. The question, if any, can only be as to the adequacy of the material on which the conclusion as to the genuineness of the letters is arrived at. That, however, is a matter which we cannot permit to be canvassed before us”.

  1. We are unable to understand how the above observations in any way amount to modification of the view taken by Bhagwati, J. in Madholal case[18]nor do we appreciate how they help Mr. Gupte in the argument that he is advancing. Mr. Gupte in particular, relied upon the following sentences occurring in the above passage:

“The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Sections 45 and 47 of the Evidence Act. It may also be proved by internal evidence afforded by the contents of the document…”

  1. The issue under consideration in that case was whether the internal evidence afforded by the contents of the document amounted to the proof of the authorship of the document and, therefore, their Lordships held that the evidence of the recipient of the document would be material to establish the authorship of the document. This was the real decision that was given by the Supreme Court in Mobarik Ali case[19]. Even the general observations viz. “It (proof) may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents or of the signature by one of the modes provided in Sections 45 and 47 of the Evidence Act” are not of much help to Mr. Gupte. As pointed out above, at the initial stage D tried to resort to the mode of proving spoken of in Section 47 of the Evidence Act but at a latter stage, shifted the ground and tried to give direct evidence of the execution of the document. It is true that proof of the signature or of the handwriting by one acquainted with the handwriting is a recognised mode of proof under Section 47 of the Evidence Act. Therefore, insofar as D says that he recognised the signature of Abreo, the letter’s signature can be taken to have been proved under Section 47 of the Act. But the proof of the signature on the basis of opinion evidence, however, is not proof of the handwriting of the document. Mr. Gupte pointed out that the body of the document as Ex. 28 is typewritten. Therefore, there is no question of proving the writing of that document. At the same time, it must not be forgotten that the figure and letters ‘1st’ are written in hand and in pencil. D has not attempted to identify the figure and letters. The whole document, therefore, cannot be said to have been even formally proved. Apart from this aspect of the matter, it is clear to us that the decision in Mobarik Ali case[20] does not affect the decision given by Bhagwati, J. viz., that the proof of the document does not amount to proof of the contents thereof. The only question that arose in Mobarik Ali case related to the formal proof of the document and, therefore, Their Lordships of the Supreme Court held that the letters and telegrams could be said to have been formally proved by reason of internal evidence provided by the documents and the positive evidence given by the recipient of those documents. Once the letters and telegrams were held proved, the further question about the proof of the contents did not arise in Mobarik Ali case[21], because the author of the documents was accused himself and the statements contained therein would amount to his admissions. In our view, therefore, the decision of Bhagwati, J. is still good law.
  2. The reason on which the decision of Bhagwati, J. is based is not far to seek. The evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court. We, therefore, hold that the attempt to prove the contents of the document by proving the signature or the handwriting of the author thereof is to set at nought the well recognised rule that hearsay evidence cannot be admitted.

                                                                                                                        (emphasis supplied)

It is therefore necessary in the case of disputed documents to therefore prove the contents of the documents through the evidence of persons/witnesses who have authored the documents or are parties to it or are aware of the facts personally stated therein.

Another reason for following the practice of having a witness with sufficient personal knowledge deposing about the documents sought to be proved is that even if the documents are exhibited the task is not yet done. This is because the person deposing will also be subject to cross-examination and in case it is found during the cross-examination that the person giving evidence about the document knows nothing about how it was made, where the details provided in the document are obtained from, what are the back up or supporting documents etc. then in that case the weightage to be given to such document even though exhibited in the first instance would be severely diminished.

PROOF OF A DOCUMENTS THE ORIGINALS OF WHICH ARE LOST OR UNTRACEABLE OR IN POSSESSION OF AN ADVERSE PARTY

 Here the first thing which needs to be established is that the document is lost and despite diligent search the same is not available. This will have to be proved and specifically averred in evidence. Secondary evidence cannot be allowed in absence of this proof of loss of the document. The Supreme Court in Benga Behera v. Braja Kishore Nanda[22] held that: (SCC pp. 737-38)

29. Another vital aspect of the matter cannot also be ignored. Respondent 1 in his evidence accepted that he had obtained the registered will from the office of the Sub-Registrar upon presenting “the ticket” on 30-1-1982. After receipt of the will, he had shown it to Sarajumani Dasi. He did not say how the will was lost, particularly when he had not only shown the original will to the testatrix but also had consulted a lawyer in relation thereto. No information was lodged about the missing of the document before any authority. Even the approximate point of time the will was lost, was not stated. In his cross-examination, he stated, “I cannot say where and how the original will was lost.”

  1. Loss of the original will was, thus, not satisfactorily proved.
  2. A document upon which a title is based is required to be proved by primary evidence, and secondary evidence may be given under Section 65(c) of the Evidence Act. The said clause of Section 65 provides as under:

“65. (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;”

Loss of the original, therefore, was required to be proved.

  1. In a case of this nature, it was obligatory on the part of the first respondent to establish the loss of the original will beyond all reasonable doubt. His testimony in that behalf remained uncorroborated.”

In case a document is in possession of the opposing party the proper practice to be followed will be to give a notice to produce the document to such party in possession of the document and only after the party refuses to provide/produce the document can secondary evidence be resorted to[23].

Thereafter the mode of proof will be the same as for other disputed documents. Additionally appropriate evidence about how the copy which is secondary evidence was obtained and made from the original will also have to be led. In other words evidence of the manner in which the copy is made will have to be led in accordance with the manner set out in Section 63 of the Act. As an example if a letter sought to be proved is lost evidence would have to be given first of the efforts made to locate the same unsuccessfully and then of the manner in which the copy now relied upon in the compilation was obtained or made and the process by which it was made e.g. photocopy. The necessary averment of the witness apart from the factum of his failure despite diligent search to locate the original will have to be to the effect that at the relevant time the original document was available and a copy was made from the original and the copy in the compilation was compared by him with the original and found to be an accurate reproduction of the original document.

The next stage is for the witness deposing to be able to withstand cross-examination by answering relevant questions relating to document. Take the following example (in a dispute on electricity consumption) and assume there is an electric bill, a disputed document exhibited since the public authority has produced it from its record maintained by it in the normal course of business. Since there is a dispute about consumption of units even though the bill itself in original is produced all that is proved by production is that such a bill was made by the public authority and such and such number of units were consumed as stated therein. However what needs to be seen is whether there is a correct recording of the consumption of units in the public document that is the bill. Mere production of the document is not enough what is needed in such a case further is for some person to give evidence of the public document to the extent that the document is substantiated with supporting documents such as meter reading cards and supporting data maintained in the office of the authority. In such a case if the witnesses states that the bill was prepared by him on the basis of data cards maintained showing the consumption from month to month and he had verified the consumption from month to month then in that case if the data cards showing the consumption are also produced the contents of the bill will stand proved, of course subject to cross-examination not dislodging the correctness of the consumption shown in the document. Therefore what is needed apart from successful exhibition of the document is for a witness to stand the test of stringent cross-examination. It is not merely somebody stepping into the box and saying the contents are true and correct that person must withstand cross-examination. It is only after that person has withstood the test of cross-examination that the document will be deemed to be accepted by the court sufficient to sign a judgement in favour of the party claiming under the document. Mere exhibition of a document does not dispense with the proof of the truth of its contents. The Supreme Court in Narbada Devi Gupta v. Birendra Kumar Jaiswal[24]held: (SCC p. 751)

16. Reliance is heavily placed on behalf of the appellant on Ramji Dayawala & Sons (P) Ltd.[25] The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue”. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court.”

DOCUMENTS 30 YEARS’ OLD

 There are also documents which are of such old vintage that it is very difficult and sometimes impossible to produce the maker of the document and in this case the provisions of Section 90 of the Act come to the rescue when the document is more than 30 years’ old. However, this rule considering the fact that most cases coming up for trial are 30 years after the transactions cannot be the sole basis for admitting documents and in such cases the court would look at the surrounding circumstances before exhibiting the document. This means the court would look as if there, is for example, any correspondence contemporaneously that supports what is stated in the document sought to be proved. If the document is a letter, has there been any response to it disputing the contents of the letter, the court may also take into consideration what is stated about the letter in the plaint or in a written statement. Exhibition of such documents which do not have persons who can depose to them is extremely difficult and even if they are exhibited (rarely) the evidentiary value is limited unless its contents are admitted in some other parallel documents. The section does not dispense with proof of the contents. The judgement of the Supreme Court in Gangamma v. Shivalingaiah[26] elucidates the position: (SCC p. 360)

6. We agree with the learned counsel. The purported substantial question of law was formulated by the High Court on a wrong premise. Section 90 of the Evidence Act has been misconstrued and misinterpreted by the High Court. Section 90 of the Evidence Act reads as under:

“90. Presumption as to documents thirty years old.—Where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.”

  1. A bare perusal of the aforementioned provision would clearly go to show that in terms thereof merely a presumption is raised to the effect that signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting and in case a document is executed or attested, the same was executed and attested by the persons by whom it purports to be executed and attested.
  2. Section 90 of the Evidence Act nowhere provides that in terms thereof the authenticity of the recitals contained in any document is presumed to be correct. The High Court, therefore, committed a manifest error of law in interpreting the provision of Section 90 of the Evidence Act and, thus, fell into an error in formulating the substantial question of law. As the purported substantial question of law was formulated on a wrong reading of Section 90 of the Evidence Act, the impugned judgment cannot be sustained. We may furthermore notice that even if a formal execution of a document is proved, the same by itself cannot lead to a presumption that the recitals contained therein are also correct. The mere execution of a document, in other words, does not lead to the conclusion that the recitals made therein are correct, and subject to the statutory provisions contained in Sections 91 and 92 of the Evidence Act, it is open to the parties to raise a plea contra thereto.”

 It is also to be noted that the presumption of Section 90 of the Act does not apply to copies of documents as held in Tilak Chand Kureel v. Bhim Raj[27]. The relevant passage is as under:

“4. On behalf of the appellant it was contended that Exts. 2, 18 and 19 were not admissible in evidence and the High Court was wrong in relying upon these documents. It was said that the presumption under Section 90 of the Evidence Act was not applicable as copies were produced and not the original documents. In our opinion this argument is well-founded. In Basant v. Brijraj[28] it was held by the Privy Council that the presumption enacted in Section 90 of the Evidence Act can be applied only with regard to original documents and not copies thereof. The same view was taken by this Court in Harihar Prasad Singh v. Mst of Munshi Nath Prasada[29] In view of the legal position it is manifest that the High Court ought not to have taken into consideration Exts. 2, 18 and 19.”

PERSONAL KNOWLEDGE

 The last issue which needs to be addressed to prove documents contents through a witness pertains to the witness having direct knowledge and giving direct evidence rather than a witness relying upon something which he claims he heard. The rule of inadmissibility of hearsay evidence kicks in. Evidence needs to be evidence of the person who is involved in and familiar with the transaction. In this behalf a recent judgement considering the law on the issue was delivered by the  Bombay High Court (G. S. Patel, J.) in Harish Loyalka v. Dileep Nevatia[30]. It is inter alia held therein that the provisions of Order 18 Rule 4 of the Code of Civil Procedure, 1908 (“CPC”) require that the “examination-in-chief” shall be on affidavit. This means that the affidavit in lieu of examination-in-chief can contain, and contain only, such material as is properly admissible in examination-in-chief, in a manner no different than if the witness was in the witness box and his direct evidence was being taken by his advocate. An affidavit that contains arguments and submissions is neither an affidavit within the meaning of Order 19 Rule 3 CPC, nor an affidavit in lieu of examination-in-chief within the meaning of CPC Order 18 Rule 4.

In that judgment it was also held:

“13. As Mr. Joshi points out, under Section 5 of the Evidence Act, evidence may be given in a suit of every fact in issue or of a relevant fact, and of no other. That section is specific and unambiguous. Material that is ex facie entirely irrelevant, hearsay, and certainly material that is in the nature of submissions and arguments must be excluded.”

To sum up the aforesaid are some of the important principles and aspects of law to bear in mind when preparing for a hearing for exhibiting and proving documents.


*Advocate, High Court, Bombay. Assisted by Sheetal Parkash, Arjun Prabhu and Mayur Agarwal

[1] Sections 74 & 75, Evidence Act

[2] Defined in Section 74 of Evidence Act

[3] Sections 76 & 77, Evidence Act

[4] Section 35, Evidence Act

[5] Section 90, Evidence Act

[6] Section 63, Evidence Act

[7] Under Section 77 of the Evidence Act

[8] 1982 SCC OnLine Bom 148

[9] 1971 SCC OnLine Bom 104

[10] Sections 60 to 62 Evidence Act

[11](2003) 8 SCC 745

[12] 1945 SCC OnLine Bom 44

[13] Reg v. Jora Hasji

[14] Madholal Sindhu v.  Asian Assurance Co. Ltd., 1945 SCC OnLine Bom 44

[15] 1961 SCC OnLine Bom 5

[16] 1945 SCC OnLine Bom 44

[17] Mobarik Ali Ahmed v. State of Bombay, 1958 SCR 328

[18] 1945 SCC OnLine Bom 44

[19] 1958 SCR 328

[20] Ibid.

[21] Ibid.

[22]  (2007) 9 SCC 728

[23] Sections 65 and 66, Evidence Act

[24] (2003) 8 SCC 745

[25] Ramji Dayawala & Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80

[26] (2005) 9 SCC 359 

[27] (1969) 3 SCC 367

[28] 1935 SCC OnLine PC 21

[29] 1956 SCR I at p. 9

[30] 2014 SCC OnLine Bom 1640

Case BriefsHigh Courts

Gauhati High Court: The conviction and sentence awarded to the appellants in a criminal case for the offences punishable under Section 302 read with Section 34 IPC, was set aside by a Division Bench comprising of Ajit Singh, CJ and Prasanta Kumar Deka, J.
The appellants were accused of committing sexual assault on the deceased and subsequently killing her. They were booked under the above said sections of IPC and convicted by the trial court. The conviction of the appellants was based on the alleged extra judicial confession made by them. The appellants challenged the said decision of the trial court.
The High Court inter alia found that the alleged extra judicial confession was made in police custody. Sections 25 and 26 have to be strictly construed. Such confession, according to the Court, was inadmissible in light of Section 26 of Evidence Act. Further, the averments of the alleged extra judicial confession were not proved in light of the post-mortem report. It was alleged that the appellants had confessed that they raped the deceased and then killed her. However, in the PMR, no such fact was recorded. Therefore, the conviction and sentence awarded to the appellants was quashed and set aside. [Dulu Basak v. State of Assam,  2018 SCC OnLine Gau 320,  order dated 02-05-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: In an appeal before the High Court, the appellants challenged their conviction by Sessions Judge in murder case of wife of one of the appellants under Sections 302 read with Section 34 IPC. In the present case, the deceased Basanti Bai died in the intervening night in 2006 at their village. During investigation, statements of the witnesses were recorded. The trial court after considering the material available on record by the impugned judgment convicted and sentenced the accused-appellants to imprisonment for life.

After going through the facts of the case, the Court heard the counsel for the appellant who pleaded that firstly, the cause of the death of deceased had yet not been established as the doctor in her post-mortem report had mentioned that she died due to asphyxia that may also be caused due to any general disease and thus, death cannot be called homicidal. Secondly, he told the Court that the witnesses adduced by the prosecution are hearsay witnesses, which is not legally admissible. Thirdly, he pleaded that there had been not even a single witness from the village where the incident took place, thus weakening the stand of the prosecution to a great extent.

The Court considered the fact that all the evidences taken into consideration by the trial court are the evidence of relatives of deceased and whatever had ever been spoken by the deceased during visit of their house had been reproduced by them before the Court thus, failing to be legal as per Section 60 of Evidence Act which states that oral evidence must always be direct to be admissible. To support its observation, the Court cited Kalyan Kumar Gogoi v. Ashutosh Agnihotri (2011) 2 SCC 532 in which the Supreme Court had explained reasons as to why hearsay witnesses were not admitted like truth comes in diluted and diminished form this way and the witness in such cases will not have any responsibility on him and so on.

The Court went on to say that as the evidence upon which the inference of trial court is based is admissible, the other aspects of the matter needed to be examined in depth. The Court noticed that none of the 13 witnesses examined belonged to the village where deceased died. The Court observed that in such cases of hearsay evidence, Section 106 of the Evidence Act may be attracted if a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference and its purpose is not to relieve the prosecution to prove the burden of guilt. But in the present case, out of all the witnesses, no one stated that the appellant was inside the house at the time of the incident.

The Bench of Ram Prasanna Sharma, J. on minute scrutiny of the facts and examined witnesses said that that suspicion however grave cannot take the place of proof and that the prosecution just in order to succeed on a criminal charge cannot afford to lodge its case only on the basis of “may be true” but has to essentially elevate it to the grade of “must be true”. [Shankarlal v. State of Chattisgarh, 2017 SCC OnLine Chh 1138, decided on 6-10-2017]