Report No. 69

Chapter 76

Determination of Questions as to Admissibility

Section 136

76.1. Introductory.-

Section 136 is vitally important for understanding the role of the Judge in the field of evidence. Three propositions-all of importance-are set out in section 136. In order to understand their importance, it is necessary to deal briefly with the grounds of inadmissibility of evidence.

76.2. Grounds of rejection-First paragraph.-

These grounds (of inadmissibility of evidence) are numerous. The legal principle that evidence must be relevant to the facts in issue is, of course, paramount and is incorporated in the first paragraph of section 136 and in section 5. But it is an important function of the law of evidence to exclude certain evidence, even though relevant, on the grounds of policy or other considerations. It is for this reason that Phipson defined evidence as "the facts, testimony and documents which may be legally received in order to prove or disprove the facts under inquiry".1

The same idea is expressed-though in different words-by Professor Cross. When defining judicial evidence, Cross lays stress on what "a court will accept" as evidence2 of the facts in issue in a given case. What requires to be pointed out is that evidence on which a court can act must relate to facts which are legally relevant, and the means adopted for attempting to prove the facts must also themselves be those permitted by law.

1. Phipson Evidence, 5th Edn. (1920), p. 1, cited in Nokes Introduction to Evidence, (1967), P. 6.

2. Cross Evidence, (1974), p. 4.

76.3. Relevance.-

The first paragraph of the section deals with relevance. It is for the judge to decide the question of relevance. Accordingly, the first paragraph provides that when either party proposes to give evidence of any fact, the judge may ask the party proposing to give evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.

76.4. Grounds of objection.-

Although this paragraph is confined to relevance, it cannot be disputed that it is for the Judge to decide other grounds of objection also. Objection to evidence can be taken on several grounds and not merely on the ground of relevance. Even where the fact is relevant, the evidence may be excluded by rules of policy. Of the form in which it is tendered may be excluded by specific rules. Then, even on relevant matters and even where the nature of the evidence is legally permissible, the form of the particular question may be objectionable. Again, the person through whom the evidence is tendered may not be competent to do so.

76.5. To illustrate what is stated above, it may be convenient to note some of the important grounds of objection The list is not, however, exhaustive.

Facts

1. The fact of which evidence is proposed to be given is not relevant under any section of the Evidence Act.1

1. Sections 5 and 136.

Nature of the evidence.

2. Though the fact is relevant, evidence thereof is excluded by the specific provisions regarding confessions1-e.g. a confession which is excluded as involuntary.2

3. The evidence is no admissible, being hearsay3-assuming that it does not fall within the recognised exceptions to that rule, e.g. section 10, sections 17 to 31, 32 to 35, section 60 proviso, and (as regards corroborative evidence) section 157 or the provision of any special law by way of exception to hearsay.

4. The evidence tendered is evidence of opinion or character, and is, therefore, inadmissible, not being covered by sections 45 to 55.

1. Sections 24, 25 and 26.

2. See discussion relating to "relevant fact".

3. Section 60.

Form of the evidence.

5. The evidence tendered is excluded by the rules relating to secondary evidence.1

6. The evidence tendered is excluded by the rules relating to the exclusion of oral evidence by documentary evidence.2

1. Section 65.

2. Sections 91-98.

Exclusions operating on particular persons

7. The evidence tendered is barred by the rule of estoppel,1 which prevents a particular party from testifying in support, of a particular plea,inconsistent with his previous representation.

8. The evidence tendered is excluded by privilege-a protection enjoyed by the particular witness.2

1. Sections 115-117.

2. Sections 121 to 132.

Witness competence.

9. The witness through whom the evidence is tendered is incompetent by reason of age or mental infirmity.1

1. Section 118.

Questions-nature and form

10. The particular question put to the witness is a leading question and cannot be allowed1 in examination-in-chief.

11. The particular question put to the witness should not be permitted, as it is indecent or scandalous or intended to insult or annoy or is offensive in form.2

12. The question is by way of cross-examination and should not be allowed unless the witness is treated as hostile.3

13. The evidence tendered is not admissible, as it contradicts the answers given by the witness in answer to questions put to shake his credit.4

14. The witness cannot refresh his memory by referring to the writing, as it was not made at the time stated in the section.5

1. Section 142.

2. Sections 151 and 152.

3. Section 154.

4. Section 153.

5. Section 159.

Other laws

15. The evidence is excluded by the specific provisions of any other law.1

This illustrative list will show the wide powers of the Judge in ruling on questions of evidence.

1. E.g. section 162, Cr. P.C., 1973.

76.6. No discretion.-

At the same time, it should be noted that, in India, the Judge has no discretion to exclude evidence if it is relevant and admissible and not excluded by any specific provision of law. In certain cases-e.g. grant of permission to cross-examine one's own witness-the court has a limited power. In England, the powers are wider. A discretion is recognised, at least in criminal cases, particularly when the evidence is prejudicial to the accused. Apart from the cases where there is a discretion to exclude prejudicial evidence, there exists in certain other cases also, a discretion in relation to the law of evidence. Thus, there is an absolute discretion vested in the trial Judge in England as to whether a witness is to be treated as hostile-a discretion derived from statute.1

Similarly, when the accused offers himself as a witness by virtue of the Criminal Evidence Act, 1898, and the question arises how far he can be cross-examined as to character, there is a certain amount of discretion in the court to be exercised in favour of the accused.2 For example, in the case of Flynn,3 the accused was charged with the offence of robbery and made allegations of indecent assault by the prosecutor for money, as a hush money. It was held that the cross-examination of the past convictions of the accused was wrongly allowed, in the circumstances, since the imputation made by the accused against the prosecution witness was rendered necessary by the very nature of the defence, the trial court should not, on that ground alone, have allowed the character of the accused to be put in issue in his cross-examination.

Again, in regard to the breach of the Judges' Rules, while the breach itself is not sufficient to make a confession inadmissible in law, yet, where a breach of the rules has, in fact, occurred, the trial Judge is vested with a discretion to exclude the confession.4 It was on this ground that a statement obtained by the police without a caution, where such a caution was necessary in the circumstances under the Judges' Rules, was excluded, it having been held that the trial court ought not to have admitted the confession made in such circumstances.5

In R. v. List, (1965) 3 All ER 702, Roskill, J. observed that the court has an overriding discretion to disallow the admission of evidence, if the prejudicial effect would make it virtually impossible for the jury to take a dispassionate view of the crucial facts of the case.

1. Section 22, Common Law Procedure Act, 1854.

2. Section 1(f)(i), Criminal Evidence Act, 1898.

3. R. v. Flynn, (1961) 3 All ER 58 (CCA).

4. R. v. Flynn, (1961) 3 All ER 58 (CCA).

5. R. v. Ovenell, (1968) 52 Cr App R 167.

76.7. Examples of the existence of such discretion are furnished by the rules of English law relating to evidence of similar facts,1 confessions,2 prejudicial facts3-4 evidence illegally obtained.-6 and trivial facts.7 This, list, again, is illustrative only. In all these cases, the Judge has a discretion to exclude evidence principally on the ground of unfairness8 or some public policy. For example, in Callis v. Gunn, (1963) 3 All ER 77 (CCA). the Court of Criminal Appeal, while holding finger-prints evidence to be admissible, referred to the overriding discretion of the Judge to exclude it by stating "provided there is no suggestion of it being obtained oppressively by false representation, by trick, by bribes, anything of that sort".

1. Noor Mohamed v. R., 1949 AC 182 (192).

2. R. v. Wattam, (1952) 16 Cr App R 72, 77.

3. Nokes Introduction to Evidence, (1967), p. 85.

4. R. v. List, (1965) 3 All ER 710-713.

5. (a) Kuruma v. R., 1955 AC 197 (205);

(b) R. v. Mitten, (1966) 1 QB 10;

(c) Comment by Schwartz Excluding Evidence Illegally Obtained, (1966) 29 Modern Law Review 635.

6. Edmund Gabbay Discretion in Criminal Justice, (1973), p. 25.

7. Nokes Introduction to Evidence, (1967), p. 85.

8. R. v. Hall, (1973) 1 All ER 1 (CCA).

76.8. Second paragraph.-

So much as regards the proposition in the first paragraph of section 136, and points allied thereto. The second paragraph of the section is concerned with facts conditionally admissible. It provides that if the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such other fact must be proved before evidence is given of the first mentioned fact, unless the party undertakes to give proof of the other fact and the court is satisfied with such undertaking. Illustration (b) illustrates this paragraph.

76.9. Third paragraph.-

The second paragraph is thus concerned with questions where the admissibility of evidence of one fact depends upon the proof of some other fact. Sometimes, however, the relevancy of one alleged fact may depend upon the proof of some other alleged fact. In such a case, under the third paragraph, the judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. Illustrations (a), (c) and (d) illustrate this paragraph.

76.10. Conclusion.- None of the paragraphs in the section needs any change.

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