Report No. 185

Section 39

This single section is dealt with under the heading 'How much of a statement is to be proved'. It reads as follows (as amended by Act 21/2000):

"Section 39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers: When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of an electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made."

In a very interesting discussion, the 69th Report, reviewed the corresponding English and American law on the subject and suggested some 'improvements' to this section. While a party should be restricted to 'so much' of the "statement, conversation, document, electronic record, book or series of letters or papers", the question is whether the words "as the Court considers necessary" gives a discretion to the court and if so, to what extent? The more important question is whether the opposite party has a 'right' to place the entire statement, conversation, document etc. before the court, for a proper understanding of the "nature and effect" of the statement etc.

The section deals with two interesting situations, namely, (i) that a party should not be allowed to place before court wasteful or inadmissible parts of a statement, conversation etc. and (ii) that he does not rely on a truncated parts of the statement, conversation etc.

The proposed 'improvement' concerns this second aspect and the need to provide a right to the opposite party. Taylor states (Section 733) that basically if a part of a conversation is relied upon as an admission, the adverse party can give evidence only as to so much of the same conversation as may explain or qualify the matter already before the court. But, there are exceptions. Sarkar (15th Ed, 1999 p.814) refers to the decision of Abbot CJ in Queen's case (1820) 2 B&B 297 where the learned Judge refers to conversation which a witness may have had with a party to the suit and one with a third person.

In the first case, if the conversation with a party to the suit is itself evidence against him (the party), then the party has a right to lay before the court the whole of the conversation and not merely so much as may explain or qualify the matter introduced by the previous examination, but even matters not properly connected with the part introduced in the previous examination, provided it related to the 'subject matter of the suit'. On the other hand, as held in Prince v. Samo: 7 Ad&E 627, if it is the case of a non-party witness who has given evidence, he cannot be cross-examined with respect to other unconnected assertions of the plaintiff.

Sarkar (p.814-815) also quotes Wigmore (para 2113) to say that the "opponent against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal, a complete understanding of the total tenor and effect of the utterance. There is much opportunity for difference of opinion whether the proponent in the first instance must put the whole.

But there is and could be no difference of opinion as to the opponent's right, if a part only has been put in, himself to put in the remainder". This is subject to three conditions (a) No utterance irrelevant to the issue is receivable; (b) No more of the remainder of the utterance that concerns the same subject and is explanatory of the first part, is receivable; (c) The remainder thus received merely aids in the construction of the utterance as a whole, and is not in itself testimony.

Sarkar (see p.815) quotes Norton (pp.203-204) to say that the judge is therefore a referee, by whose decision is limited the quantity of the document etc. containing the statements which shall be put in evidence. His discretion is to be guided by the principle of letting so much, and so much only as makes clear "the nature of the effect of the statement and the circumstances under which it was made".

In the 69th Report, it is stated (see para 15.10) that while the principle has been adequately reflected in Section 39, "the section could be improved in one respect, by an express provision spelling out the rights of the opposite party."

The Report then quotes Section 1854 of California Code as follows:

"When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the subject may be enquired into by the other; thus, when a letter is read, the answer may be given, and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation or writing which is necessary to make it understood may also be given in evidence."

The Montana Code provides in Section 3130:

"When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject may be enquired into by the other; thus, when a letter is read, all other matters on the same subject between the parties may be given."

The 69th Report then states (see para 15.14 and 15.20) that it is not as if Section 39 gives a discretion to the court. It uses the words 'court considers it necessary'. The Report refers to police diaries and then to the Full Bench decision of the Allahabad High court in Queen Empress v. Mannu (1897) ILR 19 All 390 (para 15.27) where the majority treated the section as giving a 'discretion' while the minority view of P.C. Banerji J was that the accused had the right which he may use at his discretion. The point here was examined from the point of view concerning use of 'police diaries' by the prosecution for 'refreshing memory'.

Section 172 of the Code (Criminal Procedure Code, 1898) provides that if a police officer used a diary to refresh his memory, the Evidence Act would apply, bringing into effect Section 161 of the Evidence Act and also Section 145. Section 161 Evidence Act reads as follows:

"Section 161. Right of adverse party as to writing used to refresh memory: Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon."

Section 145 reads as follows:

"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."

The 69th Report says that the majority in the Allahabad case while holding that the court has a 'discretion' did not refer to Section 161 and 145 of the Evidence Act. The Report, therefore, recommended that a subsection be added in Section 39 that where a party has failed to give evidence, any part of the statement, conversation etc. which is necessary, as aforesaid, the other party may give that part in evidence. The proviso in the existing Section 39 'as the court considers necessary' is to be deleted. Discretion of the court is substituted by discretion given to the other party. Section 39 is split up into two subsections and a revised Section 39 is recommended as follows (the underlined words are new):

"39. (1) When any statement of which evidence is give.-

(a) forms part of a longer statement or of a conversation or part of an isolated document, or

(b) is contained in a document which forms part of a book or of a connected series of letters or papers,

then, subject to the provisions of subsection (2), the party giving evidence of the statement shall give in evidence so much, and no more, of the statement, conversation, document, electronic record, book or series of letters or papers as is necessary in that particular case to the full understanding of the nature and effect of the statement and of the circumstances under which it was made.

(2) Where such party has failed to give in evidence any part of the statement, conversation, document, electronic record, book or series of letters or papers which is necessary as aforesaid, the other party may give that part in evidence."

We agree with the above recommendation subject to the further amendment consequent to Act 21/2000 by adding the words 'or is contained in part of electronic record' after the word 'book' in proposed clause (b) of subsection (1) and later adding the words 'electronic record' after the word 'document' in the same subsection (1). We also recommend that the words 'electronic record' be added after the word 'document' in proposed subsection (2) also.

The revised section 39 should read as follows:

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