Law and You >Procedural Laws > Indian Evidence Act, 1872 > Applicability of Act

The Indian Evidence Act, 1872, is a comprehensive legislation that governs the law of evidence in India. It was enacted during the British colonial period and has continued to be a fundamental statute shaping the rules and procedures related to the presentation and evaluation of evidence in Indian courts. The Act came into effect on September 1, 1872, and it has undergone amendments over the years to address evolving legal needs.

Key features and provisions of the Indian Evidence Act, 1872, include:

• Applicability: The Act is applicable to all judicial proceedings in India, both civil and criminal, and it applies to all Indian courts, including those established by the Central or State governments.
• Relevance of Facts: The Act defines what facts are relevant and irrelevant in legal proceedings. It provides guidelines on the admissibility of evidence based on the relevance of facts to the matter in dispute.
• Oral and Documentary Evidence: The Act distinguishes between oral evidence (testimonies given by witnesses in court) and documentary evidence (evidence in the form of documents, records, etc.). It establishes rules for the admissibility and proof of both types of evidence.
• Presumptions: The Act includes provisions related to certain presumptions, i.e., assumptions that the court can make unless proven otherwise. These presumptions are often related to common human experiences and the normal course of events.
• Witnesses: The Act outlines the competency of witnesses, their examination-in-chief, cross-examination, and re-examination. It also addresses the credibility of witnesses and the circumstances under which their previous statements can be used to impeach their credibility.
• Privileged Communications: Certain communications are considered privileged and are protected from disclosure in court. For example, communications between spouses or between attorney and client may be protected.
• Confessions and Statements to Police: The Act regulates the admissibility of confessions made to the police and provides safeguards to ensure that confessions are voluntary.
• Expert Opinion: The Act allows for the opinion of experts to be admitted as evidence in matters requiring specialized knowledge.
• Burden of Proof: It establishes rules regarding the burden of proof in civil and criminal cases, specifying which party is required to prove a fact.  

The Indian Evidence Act, 1872, plays a crucial role in shaping the legal landscape of evidence in India. Legal practitioners, judges, and individuals involved in legal proceedings refer to this Act to understand the rules governing the admission and assessment of evidence in the Indian legal system.

Applicability of the Indian Evidence Act, 1872:

According to Section 1 of the Indian Evidence Act, 1872, this Act applies to all judicial proceedings in or before any Court, including Courts-martial, other than Courts-martial convened under the Army Act (44 & 45 Vict., c. 58) the Naval Discipline Act (29 & 30 Vict., c. 109) or the Indian Navy (Discipline) Act, 1934 (34 of 1934) or the Air Force Act (7 Geo. 5, c. 51) but not to affidavits presented to any Court or Officer, nor to proceedings before an arbitrator; and it shall come into force on the first day of September, 1872.

Thus, according Section 1 of the Act,

• The Act is not applicable to arbitration proceedings.
• The Act has no application to enquiries conducted by the tribunals, even though they may be judicial in character; such tribunals follow rules of natural justice.

Act Applies to Judicial Proceedings:

According to Sec. 3 of the Evidence Act, court includes all judges and magistrates and all persons, except arbitrators, legally authorized to take evidence. The definition of ‘court’ in this Act is framed only for the purpose of the Act itself and should not be extended beyond its legitimate scope. Special laws must be confined in their operations to their special subject.

In Braj Nandan Sinha v. Jyothi Narain, AIR 1956 SC 66 case the Court held that the definition is necessarily not exhaustive but is framed only for the purposes of the Act, and as such cannot be extended where such extension is not warranted. Special laws must be confined in their operations to their special subject.

A judicial proceeding is any action brought before a court of law which is presided over by a judge. A judicial proceeding is initiated by a party’s request for remedial action to be taken by another. The parties to a proceeding must adhere to the process set out where strict rules apply. According to Section 2, Sub-clause (i), Criminal Procedure Code, 1973, a judicial proceeding includes any proceedings in the course of which evidence is or may be legally taken on oath.  The Evidence Act applies to all judicial proceedings.

The Act is applicable to all judicial proceedings, both civil and criminal, conducted in Indian courts. This includes courts at various levels, such as High Courts, District Courts, Sessions Courts, Magistrate Courts, and other tribunals established under specific laws. The Act governs the law of evidence in civil cases, influencing how parties present and evaluate evidence in matters such as contractual disputes, property disputes, family law cases, and other civil litigation. The Act is also applicable to criminal proceedings, guiding the admission and assessment of evidence in criminal trials. This includes cases involving offenses under the Indian Penal Code and other criminal statutes.

In R v. Gholam Ismail, (1875) ILR 1 case, it was held that all that judicial proceeding can be expressed as any procedure over the course of which evidence is or might be taken, or in which any judgment, sentence or final order is passed on recorded evidence.

In Bharat Bank v. Employee of Bharat Bank, AIR 1950 SC 188 case, the Apex Court gave test to find whether a proceeding is judicial as.

• the presentation of the case by each of the parties to the dispute;
• Ascertainment of the facts by the evidence adduced by the parties if the question is purely of facts;
• The submission by the parties of legal arguments to ascertain a question of law; and
• a decision disposing of the matter.

In Shrichand v. state of MP, 1993 Cr LJ 495 (MP) case, the Court held that it is not necessary that the Judge or Magistrate concerned must be actually recording evidence in order to amount to judicial proceedings. In fact, occasion to record evidence may not actually arise and still the proceedings may amount to judicial proceeding. The test is whether in course of those proceedings evidence may be legally taken on oath or not.

In Munna Lal v. State of U.P, AIR 1991 All 189 case, the Court held that a Family Court also falls inside the ambit of the significance and articulation of Court.

For the purposes of the Evidence Act, an inquiry is judicial if it is under an obligation to take evidence from both sides, to hear both sides and then to formulate a judgment by the use of discretion. Such an inquiry is different from a fact-finding inquiry in which only discovered facts have to be recorded and there is to be no use of discretion.

The Law of Evidence is not to be applied to proceedings which are not judicial whether civil or criminal.

The following are held to be judicial proceedings, are governed by the rules of Evidence Act:

• The proceedings under Chapter IX of CrPC, 1973
• An execution proceeding
• An enquiry conducted by a magistrate into the truth of the allegation   contained in a petition, presented to a Deputy Commissioner.
•  Enquiries under Secs. 97, 145, 340 of the CrPC, 1973.
• Proceedings before Industrial Tribunal (Burrakar Coal Co. v. Labour Appellate Tribunal of India, AIR 1958 Cal.226).

It is to be noted that the Act applies to all judicial proceedings in or before any court, including courts-martial other than Court martial convened under the Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act, 1934 and Air Force Act, but not to affidavits presented to any court/ officer or to proceedings before any arbitrator.

Difference between Civil Proceedings and Judicial Proceedings with respect to Indian Evidence Act

A civil case of will and murder will have the same law of evidence. For example, the date of death has to be clarified or confirmed for the will to come into existence and a murder date has to be set for proceeding further with the criminal investigations too. There are, however, certain sections that apply exclusively to civil matters and others that apply exclusively to criminal cases. In civil cases, mere preponderance of evidence may be enough but in criminal cases the prosecution must prove its case beyond reasonable doubt and leave the other alternatives presented very unlikely and highly suspect.

Civil Proceedings	Criminal Proceedings
The doctrine of estoppel applies to civil proceedings only.	The doctrine of estoppel does not apply to criminal proceedings.
Sections 24 to 30 and incompetence of parties as witness are not applicable to civil proceedings.	Sections 24 to 30 and incompetence of parties as witness are applicable to criminal proceedings only.
There is no cardinal principle of civil justice.	The cardinal principle of criminal justice is “It is better that several guilty men should escape rather than that one innocent should suffer”. Thus guilt must be proved beyond the all reasonable doubts.
The rules of evidence may be relaxed by the consent of parties involved in the proceedings.	The rules of evidence cannot be relaxed by the consent of parties involved in the proceedings.
In civil proceedings, the burden of proof lies on petitioner and also on the defendant, and it may often shifts from one party to the another party.	In criminal proceedings the burden of proof lies on prosecution.
In the civil proceedings, it is the duty of the parties to the place their case as they think best.	In the criminal cases the obligation lies on the Court to bring all relevant evidence on the record so that justice is done.
In civil proceedings, the benefit of doubt is not given.	In criminal proceedings, the benefit of doubt is given to the accused.

Act does not apply to Non-judicial Proceedings:

“An enquiry about matters of facts where there is no discretion to be exercised and no judgment to be formed, but something is to be done in a certain event, as a duty, is not a judicial but an administrative enquiry” (5 Mad. 178 (FB)). The following are held not to be judicial proceedings and so the Evidence Act does not apply to them:

• A statement recorded by a Magistrate in the Course of Police Investigation under Section 164 CrPC
• A statement recorded by a Magistrate in an inquiry into a conduct of a village headman against whom reports have been made
• An enquiry conducted by a Collector under the Land Acquisition Act
• A departmental enquiry under Sec. 197 of Bombay Land Revenue Act.
• A departmental enquiry held by police officer
• The proceedings before the Sales-Tax Authorities, Income-Tax authorities, Labour Tribunals, Commissions of Inquiry, etc.
• An order passed by 1^st class magistrate under Sec. 452(3) or 454 of the CrPC, 1973.
• A contempt proceeding (Sheoraj v. a p Batra, AIR 1955 All, 638; State v. Padmakant, AIR 1954 All. 523 (FB); Sukhdeo Singh v. Teja Singh, AIR 1954 SC 186).

In Queen-Empress v. Bharma (1886) 11 Bom. 702 FB case, it had been held that procedure before a Magistrate who isn’t authorized to direct an enquiry is not a judicial proceeding in any case.

Legally Authorized to Take Evidence:

The right to take evidence is not an incident of an appellate court. Whenever an appellate court possess the right to receive evidence it is by the virtue of an express enactment such as those contained in Sec. 391, CrPC, 1973, and Order 41, R. 27, CPC.

In State of U. P. v. Ratan Shukla, AIR 1956 All. 258 case, the Court held that a District Magistrate hearing an appeal under Sec. 163 of the Municipalities Act is not legally authorized to take evidence and so it is not a court.

Act does not apply to Affidavits:

An affidavit is a personal oath or affirmation which is based on a person’s own knowledge. Affidavits per se don’t become evidence in suits, however, it can become evidence just by the assent of the parties or where it is exceptionally approved by any provisions of law.

The Act does not apply to ‘affidavits’ presented to any court or officer because the deponent’s assertion of facts on the basis of his personal knowledge   does   not   constitute   ‘evidence’.   There   is   no   doubt   that affidavits are used as mode of proof. It is always open to the court to take into consideration all facts alleged in an affidavit if they have not been controversial in the counter affidavit. The provisions for affidavits are made in CPC (Order XIX, Rule 1, 2 and 3) and the CrPC, 1973,(Ss. 295,296 and 297). An affidavit is not an evidence under Sec. 3 of the Act. It can be used as evidence only if for sufficient reasons, the court passes an order under the  CPC (Order XIX, Rule 1, 2 and 3) and the CrPC, 1973, (Ss. 295,296 and 297).

Affidavits are not admissible under the Act may be due to “best evidence” rule. You can’t cross-examine an affidavit, but you can cross-examine the person who made the affidavit, e.g. the affiant. In a court proceeding, usually the affiant has to appear, rather than use the affidavit. The affidavit might be admitted if both parties stipulated (agreed) to admit it, or the affiant was not available, i.e. dead.

In Shamsunder v. Bharat Oil Mills,  AIR 1964 Bom 38, case, the Bombay High Court held that affidavits can be used as evidence if, for sufficient reasons, the Court passes an order under Order 19, rule 1,2 of the Code Of Civil Procedure 1908. It, therefore, stated that an affidavit cannot be treated as evidence unless an order has been passed under Order 19 of the Code of Civil Procedure.

In Radhakrishnan v. Navratan Mal Jain, AIR 1990 Raj 127 case, the Rajasthan High Court held that when there was no order of the court under Order 19 rule 1, affidavits filed by the parties without giving them the opportunity of cross-examining the deponents, cannot be treated as evidence.

In Kailash Nath Agarwal v. Amar Nath Agarwal AIR 1969 All 82, case the Allahabad High Court held that by importing legal fiction, the affidavits on record of the proceeding may also be placed by the Civil Court as affidavit under Order 19 of the Civil Procedure Code and may also be filed or read in evidence and cross-examination may also be permitted.

An affidavit that is recorded suo moto by a party without having any direction from the Court can’t be named as false evidence.

In Delhi Lotteries v. Rajesh Agarwal, AIR 1998 Del 332 case, the Delhi High Court held that no action under the Indian Penal Code can be taken against the deponent.

The Act does not apply to the Court martial under Armed Forces Acts:

The Act does not apply the Court martial convened under the Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act, 1934 and Air Force Act. It is to be noted that the Act applies to courts-martial other than Court martial convened under the Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act, 1934 and Air Force Act,

The Act is not apply to arbitration proceedings:

The Indian Evidence Act is not applicable to arbitration process. Arbitration in India is primarily governed by the Arbitration and Conciliation Act, 1996. The Arbitration Act provides a comprehensive set of rules and procedures for the conduct of arbitration proceedings, including the admissibility of evidence. The Arbitration Act itself contains provisions related to evidence and procedure in arbitration. In arbitration proceedings, the parties often have more flexibility in presenting evidence compared to traditional court proceedings. The arbitrator or arbitral tribunal has the authority to determine the admissibility, relevance, and weight of the evidence presented. The principles of natural justice and fairness guide the arbitration process.

In Haralal Sadasheorao Bande v. State Industrial Court, Nagpur AIR 1967 Bom 174 case, the Bombay High Court held that the rules of Act don’t apply to the procedures before an arbitrator. The very object of submission to an arbitrator is to have an expeditious dispute solving without getting into the tedious and elaborate procedure of a regular trial or technicalities. 

In Jatan Builders v. Army Welfare Housing Organization, 2009 AIHC 2475 (2485) (Del.) case, the Delhi High Court held that arbitrator can evolve a procedure, which complies with the principle of natural justice for conduct of the proceeding. However, even if the provisions of the Evidence Act are not taken into consideration, still the parties and the arbitrators cannot override or ignore the contractual terms and act contrary to it.

In Ganga v. Lekhraj, (1887) ILR 9 All 253 case, the Allahabad High Court held that arbitrators are bound to conform to the rules of natural justice.

In Hoogly River Bridge Commissioners v. Bhagirathi Bridge Construction Co., AIR 1995 Cal 274 case, the Calcutta High Court held that the Court is absolutely not worried about the merit of the case. However, the principle of natural justice and reasonable or fair play in real life requires some basic evidence either oral or documentary before the arbitrators which would empower them to arrive at a just and reasonable conclusion.

Act does not apply to Disciplinary/ Domestic Proceedings:

The Act has no application to enquiries directed by the Courts despite the fact that they might be legal in character.

In Dhakeshwari Cotton Mills Ltd v. CIT (1954) 26 ITR 775 (SC)  case, the Supreme Court observed that the evidence brought on record without the knowledge of the assessee and used against him without giving him an opportunity to rebut it offends the principles of Natural Justice. There must be something more than bare suspicion to support the assessment.

In State of Haryana v. Ratan Singh, AIR 1977 SC 1512 case, a bus-conductor was terminated from service for not realizing fare from some passengers. The oral statements of the passengers by the checking squad inspector were accepted as sufficient evidence. It was held that the rules of Evidence Act could not be properly applied to the departmental enquiries or disciplinary proceedings.

In K. L. Shinde v. State of Mysore, AIR 1976 SC 1080 case, the Supreme Court held that the rules do not apply to the disciplinary proceedings in as enquiry to which Article 311 of the Constitution applies.

In R. v. Police Complaints Board, (1983) 2 All ER 353 case, it is held that in disciplinary proceedings, the proof required is beyond reasonable doubt as the proceedings are like criminal proceedings and cannot  be compared to civil proceedings.

In Balkrishna Mesra v. Presiding Officer, Orissa (1977) 35 Fac LR 11 (SC) case, the Apex Court held that there is no bar on the part of the competent authority to rely on evidence in disciplinary proceedings.

Evidence Act is not applicable to Domestic Tribunals. It is an established fact that domestic tribunals are not bound by the specialized principles of methodology as are contained in the Evidence Act.

In B. Bhimrajee v. Union, AIR 1971 Cal 336 case, the Calcutta High Court held that the rule of evidence has no application in the departmental proceeding and the examination witnesses need not be in the request set somewhere around the said Act.

In Central Bank v. P. C. Jain AIR 1969 SC 983 case, the Apex Court held that specialized standards of the Evidence Act don’t make a difference to the residential enquiry yet substantive rules which structure the part of the principle of natural justice, such that it can’t be disregarded in Domestic Tribunals.

In India v. T. R. Varma, AIR 1957 SC 882 case, the Supreme Court held that it is the requirement of law that such Tribunals ought to watch rules of natural justice in the conduct of enquiry.

The Evidence Act doesn’t strictly apply to enquiries conducted by domestic Tribunals. However, a Commission appointed by Code Of Civil Procedure and Code of Criminal Procedure has the power to summon the witness and evidence, and the rules of evidence apply to the proceedings before him.

Act does not apply to Domestic/ Administrative Tribunals:

Courts and tribunals are both legal entities that play crucial roles in the administration of justice, but there are some key differences between them. Courts are traditional judicial bodies established by the government to resolve disputes and administer justice. Tribunals, on the other hand, are specialized bodies set up to resolve specific types of disputes or administer justice in particular areas of law. They may be created by legislation to handle disputes in fields like employment, tax, immigration, or administrative law.

Tribunals follow legal procedures, they may be less formal than courts. They often aim for a more accessible and less intimidating environment, and the rules of evidence may be more relaxed compared to courts. Depending on the legal system, decisions of tribunals may or may not be subject to appeal. In some cases, there may be a specialized process for reviewing tribunal decisions.

Thus, many of these tribunals, boards and other authorities certainly perform judicial functions, must observe the rules of natural justice and are subject to the special appellate jurisdiction of the Supreme Court under Article 136 of the Constitution that does not conclude the matter as regards the need for applying or not applying the Evidence Act to them.

In Bharat Bank v. Employee of Bharat Bank, AIR 1950 SC 188 case, Kania, C.J.,  said that the essence of the matter is that these tribunals are not necessarily places where “justice is judicially administered”, and even if they very nearly resemble courts-to borrow the language used by the Court cannot, merely on that ground, be equated to courts for the purposes of the Evidence Act.

It’s important to note that while the Indian Evidence Act provides a general framework for the law of evidence in India, there are specific rules and procedures under other laws or statutes that may apply to certain types of cases. Legal practitioners need to consider any special provisions or amendments that may be applicable in specific situations or under specific enactments.

Act does not apply to Industrial Tribunals and Labour Court:

Industrial tribunals in India are often established under specific statutes such as the Industrial Disputes Act, 1947. These tribunals are responsible for adjudicating disputes between employers and employees in the industrial sector. The rules and procedures for these tribunals are laid down in the respective legislations that establish them. Industrial tribunals, being quasi-judicial bodies, may adopt more flexible procedures compared to regular courts. The rules of evidence may be adapted to suit the nature of industrial disputes, and the tribunal may have the discretion to admit evidence that might not be admissible in a traditional court setting. Thus the Indian Evidence Act is not applicable to Industrial Tribunals.

Labour courts are specialized forums designed to adjudicate disputes related to labour and employment matters. Some labour laws have their own provisions regarding the admissibility of evidence, examination of witnesses, and other procedural aspects. These provisions may either supplement or override the rules of evidence under the Indian Evidence Act. Labour courts may adopt more flexible procedures compared to regular courts, and the rules of evidence may be adapted to suit the specific nature of labour disputes. The focus may be on expeditious resolution and the substantial merits of the case rather than strict adherence to technical rules of evidence.

In Bareilly Electricity v. Workmen AIR 1972 SC 330 case, the Supreme Court held that all the technicalities of the Evidence Act are not strictly applicable to Labour Courts and Tribunals, except in so far as Section 11 of the Industrial Disputes Act 1947 and the rules therein are permitted.

In Leonard Biermans v. Second Industrial Tribunal AIR 1962 Cal 375 case, the Calcutta High Court held that a proceeding before an Industrial Tribunal is merely a quasi-judicial proceeding and the evidence is not applicable to such proceedings.

Conclusion:

The Indian Evidence Act, 1872, is a substantive law that applies to the entire territory of India. Its applicability extends to both civil and criminal proceedings in all Indian courts, including those established by the Central or State governments. The Act was enacted during the British colonial period and continues to be a fundamental statute governing the law of evidence in India. This Act, is a comprehensive law that applies to the entire legal landscape of India. Its provisions shape how evidence is presented and evaluated in courts, providing a framework for the fair and just resolution of legal disputes. Legal practitioners and individuals involved in legal proceedings refer to this Act to understand the rules governing the law of evidence in India.

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