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A. INTRODUCTION (CONCEPTOF EVIDENCE IN CLASSICAL

1. INTRODUCTION TO LAW OF EVIDENCE HINDU AND ISLAMIC JURISPRUDENCE):

Before the enactment of Indian Evidence Act, 1872,

there were different rules of evidences in practice. The
SYNOPSIS:
principles of English law of Evidence were followed by
A. Introduction (Concept of Evidence in Classical the Courts in India in the presidency towns. But in the
moffusil areas, Mohammedan law was followed.
Hindu and Islamic Jurisprudence)

B. British Principles of Evidence As far as the Hindu law was concerned, there are
Sanskrit books, Dharma Sastras, Smritis and Smrities
C. Evidence in Customary Law Systems
dealing with law with elaborate rules of evidence, but
D. Legislations dealing with Evidence (Other than there is no evidence as to how far they were practised.
In the same way, there is very less proof about the rules
the Evidence Act)
of evidence in the Mohammedan jurisprudence.
1. The Civil Procedure Code
B. BRITISH PRINCIPLES OF EVIDENCE:
2. The Criminal Procedure Code

3. The Bankers’ Books Evidence Act, 1891 During the British period, the Charter Act of 1726
4. The Commercial Documents Evidence was the first enactment to bring about the uniform
applicability of law of evidence to all the Courts of British
Act 1939 India. The Act of 1835, Act of 1837, 1852 and 1862 which
5. Fiscal and Revenue Laws followed one after the other, were instrumental in bringing
forth the principles of evidence to Indian Courts. Finally,
E. Substantive and Procedural Laws
Sir James Fitzjames Stephen prepared the present
Evidence Act in 1872. It came into force on 1st September
1872 and all the Courts of the Indian States adopted this
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Act. After Independence, the Act became applicable to the The provisions of the Indian Evidence Act do not
whole of India, except Jammu and Kashmir. apply to:

The Indian Evidence Act, 1872 originally passed a. Affidavits presented to any Court or Officer
by the British Parliament in 1872, sets forth rules on
issues governing admissibility of evidence in the Indian
b. Proceedings before an Arbitrator
courts of law. Though some amendments have been made
to the provisions of the Act, it retains its original form. It
c. Quasi-judicial proceedings before a Statutory
is one of the most important laws administered by Indian
Authority like proceedings before Inquiry Officers and
Civil and Criminal Courts.
other presiding officers, where administrative officers

The Act has 11 chapters and 167 Sections and is act as quasi-judicial authorities. In these cases,
divided into three parts and elaborates on subjects as under: principles of natural justice apply.

Part I – deals with Relevancy of facts - in terms C. EVIDENCE IN CUSTOMARY LAW SYSTEM:
of what facts may or may not be proved. These are dealt
with in detail in sections 5 to 55. Ancient custom is generally regarded as providing a
foundation for many laws in most systems of jurisprudence .
Part II- deals with provisions relating to how the
relevant facts are to be proved- matters which need A custom is a rule of action uniformly and continuously
not be proved under law and how facts-in-issue or relevant followed by the bulk of the people for a long time. Custom is
facts which are to be proved through oral and
recognized as an important source of all laws. Custom
documentary evidence (Section 56 to 100)
outweighs the written text of law under the Hindu system
of law. There can be usage without custom, but no custom
Part III- relates to who must produce evidence
without usage. Custom, if the law is to uphold it as right,
and in what manner evidence should be produced. It
should be immemorial in origin, certain, reasonable in nature
lays down the procedure for production of evidence and
the effects of evidence. (Section 101 to 167). and continuous in use. When a customary right is upheld
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by a court, it becomes customary law. These customary laws 2. Section 48: in determining the existence of any
were the creation of Indian courts. general custom or right, ‘the opinions, as to the
existence of such custom or right, of persons who
Customary rights cannot be the creature of a would be likely to know of its existence if it existed’
written instrument. The principles of customary laws are admissible. Thus a tribal or family custom may
were not codified and the said customs were not listed be proved by general evidence as to its existence by
out separately by legislations in India. members of the tribe or family who would naturally
know of its existence.
However, customary rights were recognized as early
as 1872, when the Indian Evidence Act was enacted. 3. Though under Sec. 45, opinion evidence can be given
Indian Evidence Act (Section 13) deals with the facts only by experts, that is, persons specially skilled in
relevant for the proof of customary law. the relevant ‘science or art’ Sec. 48, says that in
cases involving the proof of local custom, ‘the opinions,
Proof of custom has been aided by the provisions of as to the existence of such custom or right, of persons
the Indian Evidence Act 1872, drafted by James Fitzjames who would be likely to know of its existence if it
Stephen and still in force. It was intended to be a simplified existed’ are admissible.
and improved statement of the common law of evidence.
4. Section 49: ‘When the court has to form an opinion
The important provisions regarding evidence in as to the usages and tenets of any body of men or
customary law are: family ... the opinions of persons having special means
of knowledge thereon are relevant facts’. Eg., proof
1. Section 32(4): statements by persons deceased or of customary adoption, family customs of
who cannot be found as to any public right or custom primogeniture, and so on. Sec. 48 and 49 provide a
are admissible. The term ‘public right or custom’ flexible and comprehensive basis for admitting

includes local customs adhered to by any substantial evidence of customary law, even though the witness

number or class of people. as are not formally qualified as an expert.

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5. Section 57: the courts may take judicial notice of Sections which are applicable to Civil cases:
frequently proved or notorious customs, and may refer
to appropriate books or documents of reference. In 1. According to Sec. 52, in defamation cases, the
this way judicial notice is frequently taken as character of the defamed person is considered for
established custom. awarding damages.

Though local or family custom may be proved by 2. According to Sec. 55, the character of any person
general evidence as to its existence by members of the which would affect the amount of damages which
tribe or family who would have knowledge of its existence he ought to receive is relevant.
and its exercise without controversy, the rules of evidence
are not ignored entirely. To be admissible the evidence 3. Sec. 115 to 117 deal with estoppel. i.e., ‘no one can
of custom must be clear and not speculative.
deny what he has said or done’.

D. LEGISLATIONS (CPC, CrPC) DEALING WITH EVIDENCE

2. THE CRIMINAL PROCEDURE CODE:-
(OTHER THAN THE INDIAN EVIDENCE ACT):

Sections applicable in criminal cases:

1. THE CIVIL PROCEDURE CODE:-

1. The substantive law of confession is contained in

Evidence is placed before the Court to show the
Sec. 24 to 30 of the Evidence Act and the adjective
existence or non existence of facts. Evidence plays an
law(procedural law) is contained in Sec. 164, 281
important part in course of the trial of civil cases.
and 463 of the Criminal Procedure Code 1973.

Since the law of Evidence deals with the procedure, it

Confessions are received in evidence in criminal
is part of the procedural law or adjective law whereas substantial
cases upon the same principle on which admissions
law deals only the rights and liabilities. The law of evidence
prescribes the procedure which a Court has to follow. are received in civil cases.
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2. According to Sec. 53, the previous good character of Difference between civil and criminal cases as regards
the accused is relevant in criminal proceedings. weight of evidence:

According to Sec. 54, in criminal proceedings, the fact 1. In civil cases, the judge goes deep into the case and
that the accused person has a bad character is finds which party has the right and in whose favour
irrelevant, unless evidence has been given that he the judgment should be given even though the
has a good character, in which case it becomes relevant. evidence is doubtful. In civil cases, if there is doubtful
evidence, the benefit is not given to the party against
3. According to Sec. 120, in criminal proceedings whom such doubtful evidence is given.

against any person, the husband or wife of such

A mere preponderance of probability with due
person, respectively shall be a competent witness.
regard to the burden of proof can be the basis of decision
in civil cases.
4. In the case of Sec. 155, the credit of a witness is
impeached in four ways:
But in criminal cases, if the evidence against the
accused is doubtful, the Judge should give the benefit of
a. evidence of persons that the witness is unworthy of credit
doubt to the accused and acquit him. No accused can be
convicted on the basis of doubtful evidence. The principle
b. proof that the witness has been bribed or accepted is that thousand guilty men may escape but no innocent
offer of a bribe or has received any corrupt inducement man should be punished.

c. former statements inconsistent with the present 2. In criminal cases, there must be clear proof of the
evidence and substance of the offence (corpus delicti). Before
adducing proof that the accused is the author of a
d. general immoral character of the prosecutrix in cases certain offence, it must be established that the
of rape or attempt to ravish. crime was committed.
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3. In civil cases, burden of proof shifts from one party Salient features of this Act:
to the othe r, depending on the nature and
circumstances of the case. But in criminal cases, 1. This is an amendment of the Law of Evidence with
it never shifts to the accused. The accused is under respect to Bankers’ Books.
no obligation to prove his innocence.
the subject or context:

4. The provision relating to admission and estoppel are

This Act may be applicable to ‘bank’ which means-
generally applicable to civil cases only. Provisions
relating to confession, dying declaration,
(a) any company or corporation carrying on the business
incompetency of parties as witnesses, character of
of banking.
prostitutes in rape cases, are generally applicable
only in criminal cases.
(b) to the books of any partnership or individual.

3. T HE BANKERS ’ BOOKS EVIDENCE ACT , 1891

(c) any post office savings bank or money order office;
(ACT XVIII OF 1891)

2. ‘bankers’ books’ include ledgers, day-books, cash-

Banks keep their accounting and its details in
books, account-books and all other books used in the
various ledgers, registers, etc. When any claim of the
bank is required to be established or proved in the Courts ordinary business of a bank;

of law, these books are required to be produced in original.

As it is difficult to do so, it’s extracts can be produced. ‘certified copy’ means

To facilitate the production of such evidence in an a. a copy of any entry in the books of a bank together
easy way and to have eividentiary value to the extracts with certificate written at the foot of such copy that
and copies, this Act was enacted. it is a true copy of such entry.
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b. that such entry is contained in one of the ordinary any baker’s book the contents of which can be proved
books of the bank and under this Act, or to appear as a witness to prove the
matters, transactions and accounts therein recorded,
c. was made in the usual and ordinary course of without the order of the Court or a Judge.
business, and that
5. Inspection of Books by order of Court or Judge –
d. such book is still in the custody of the bank,
(1) On the application of any party to a legal proceeding

e. such certificate must be dated and subscribed by

(i) the Court or a Judge may order that such party may
the principal accountant or manager of the bank with
inspect and take copies of any entries in a Banker’s
his name and official title.
Book for any of the purposes of such proceeding, or

3. Mode of proof of entries in Bankers’ Books –

(ii) may order the bank to prepare and produce, within a
time specified in the order, certified copies of all
A certified copy of any entry in a Banker’s book is
such entries, accompanied by a further certificate
in all legal proceedings received as prima facie evidence
that no other entries are to be found in the books of
of the existence of such entry, and is admitted as evidence
the Bank relevant to the matters in issue in such
of the matters, transactions and accounts therein
proceeding,
recorded in every case to the same extent as, of the
original entry itself .
(iii) and such further certificate must be dated and
subscribed in manner directed in reference to
4. Case in which officer of bank not compellable to
certified copies.
produce books –

No officer of a bank is in any legal proceeding to (2) An Order for production or inspection of certified
which the bank is not a party be compellable to produce copies may be made either with or without
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summoning the Bank and is served on the Bank b. may presume in relation to documents included in
three clear days (exclusive of Bank holidays) before Part II of the Schedule.(21 kinds of documents)
the same is to be obeyed.
c. may presume any document purporting to be a
document included in Part I or Part II of the Schedule,
(3) The Bank may, at any time before the time given, either
to have been duly made by or under the appropriate
offer to produce their books at the trial or give notice of
authority, and that the statements contained in such
their intention to show cause against such Order. documents are accurate.

4. T HE COMMERCIAL DOCUMENTS EVIDENCE ACT 5. FISCAL AND REVENUE LAWS:

1939:
Fiscal Statutes regulate the levy, collection and refund
of tax to tax assesses. The Evidence of fiscal statute is similar
The Act deals with the law of evidence with respect
to any other law. In deciding the liability of a subject (Citizen)
to certain commercial documents.
to tax, it is necessary to adhere to strict letter of law, and
not merely to the spirit of the statute or the substance of
1. The Statements of facts in issue or relevant facts the law. Tax can be imposed only when the case falls strictly
made in any document included in the Schedule as within the provisions of the fiscal law.
to matters usually stated in such document are
themselves relevant facts within the meaning of the Evidence in fiscal statutes:
Evidence Act.
1. Before taxing any person, it must be clearly established
that the person to be taxed comes within the purview
2. For the purposes of the Indian Evidence Act, 1872, a
and ambit of the charging Section by clear words.
Court:

2. No one can be taxed by implication of law. If a person

a. shall presume, in relation to documents included in has not been brought within the ambit of the charging
Part I of the Schedule.(24 kinds of documents) Section by clear words, he cannot be taxed at all.
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3. The subject cannot be taxed without clear words that 7. The words of a taxing Act must never be stretched
the person is liable for taxation. against a taxpayer.

Calcutta Jute Manufacturing Company, Vs. 8. The cardinal principle of tax law is that the law to be
Commercial Tax Officer: applied to an assessee is the law in force in the
assessment year unless otherwise provided expressly
The Supreme Court held that in an Act which or by necessary implication.
imposes tax, one has to look into merely what is clearly
stated. There is no room for searching the intention. 9. No retrospective effect to a fiscal statute is possible,
There is no room for equity about a tax. There is no room for unless the language of the statute is very clear and
presumption as to tax. There is nothing to be read in, nor to plain. If the language is ambiguous or doubtful, the
be implied. One must only look at the language used. doubt has to be resolved in favour of the subject and
not in favour of the Government.
4. The right to tax should be clearly established.
Conditions precedent to the imposition of any tax 10. A tax can be levied only if under the provisions of the
should be strictly complied with. taxing statute, it is leviable.

Reliance Jute and Industries limited Vs. Commercial

5. Courts should not strain words and find unnatural
Tax Officer:
meaning to fill up the loopholes to impose tax, or to
prevent tax evasion.
Fiscal statutes imposing tax is normally presumed
that they are not retrospective. The tax law which is in
6. If the evidence is open to two views, one - more
force in the assessment year can only be made applicable,
favourable to the State and the other to the subject, unless otherwise provided expressly or by necessary
then the latter view favourable to the subject should implication. It is only the procedural or machinery
be adopted. provisions which are generally retrospective.
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Onkarmal Meghraj Vs. CIT Bombay: When the Courts find that there is an attempt at
concealment, it will “brush away the cobweb, varnish,
11. The taxes and assessments can only be imposed by and show to the world the transactions in their true
an authority established under a statute. No tax can light” and bring the evaders to tax net.
be levied by order, circular, by law, regulation etc.,
of the executive. 16. The penalty provision in a fiscal statute cannot be
equated to a criminal statute.
12. A person who claims an exemption has to establish it.
E. SUBSTANTIVE AND PROCEDURAL LAWS:
13. As regards imposition of tax, no presumption exists.
It cannot be drawn by implication or analogical A. DEFINITION:
extensions.
Salmond defines the law of procedure as the
14. A penalty provision of fiscal statute does not attract branch of the law which governs the process of litigation.
the rule of presumption of mental intention (Mens It includes all civil and criminal proceeding and also the
rea) as found in criminal offences. The word ‘shall rules governing the institution of proceedings.
presume’ used in a fiscal statute shows that any
violation of the provision which will result in penalty ‘Procedure’ is a method by which a legal right is
to the assessee is interpreted as rebuttable enforced. Substantive law defines the right of a person
presumption. and by means of the Court proceedings, it gives remedy
to the person.
15. The tax authorities must consider the legal aspects
of a particular transaction for levy of tax. This is called DIFFERENTS BETWEEN PROCEDURAL AND SUBSTANTIVE LAW:

‘substance of the matter’. i.e., the true nature of There are difference between Procedural and
transaction. substantive laws which are as follows: