Report No. 69

Chapter 99

Discretion of the Judge

99.1. Scope of the Chapter.-

In this Chapter, we propose to consider in brief the question whether the Judge should be vested with a discretion to exclude evidence which is relevant and technically admissible, where its admission is regarded as necessary in the interests of justice. An examination of this subject has been considered necessary in the light of the query raised whether there is need for such discretion in order to promote the cause of justice by preventing harassment or oppression. The submission to be made after an examination of the position is that such an amendment should not be made. In order to understand the scope of the present discussion, it will be convenient to discuss the subject under these heads-

(a) Whether the Court in India has any such discretion according to the present law?

(b) What is the English law on the subject?

(c) Whether the vesting of such a discretion in the court in India would be desirable or feasible?

99.2. Present law in India.-

As to the first question, the correct answer should be in the negative, while courts in India do have jurisdiction-indeed, it is mandatory on their part-to exclude evidence which is irrelevant or inadmissible and to disallow questions which are prohibited by specific legislative provisions, they have no discretion to exclude evidence or to disallow questions permissible by law on the ground that serious prejudice might thereby result to any party or on the ground that embarrassment might be caused to a witness or that the evidence would be unfair. The powers of the Judge are limited to those expressly conferred by the Evidence Act or by the two procedural Codes or any special law. In the absence of a provision conferring such a discretion, courts do not act under any residual or general power to exclude evidence.

Certain sections of the Evidence Act to confer a power or impose an obligation on the Court to regulate the scope of questions in regard to particular matters or in particular forms. By way of example, reference may be made to section 148, whereunder the Court must consider how far the making of imputations on the character of a witness in cross-examination is justified having regard to the considerations mentioned in that section. But, in general, it cannot be said that evidence which is relevant and admissible and not excluded by a specific legal provision, if elicited in the proper form and manner, can still be excluded by the presiding officer on the ground that it would be unfair or oppressive or against public policy. This is true whether the proceeding be civil or criminal.

99.3. No inherent power.-

As to inherent powers under the Code of Criminal Procedure,1 there is, no authority recognising a power to exclude evidence that is unfair to the accused. Nor is there such power under the Civil Procedure Code. The question of unfairness to the accused did come up in a case2 before the Calcutta High Court. In that case, three persons were charged for an offence of murder under section 302, Indian Penal Code. After the close of prosecution evidence, and before the examination of the accused, the trial judge decided to examine the Defence Counsel as a court witness, since one of the accused had been working in his house on a part-time basis when the offence was committed by him. All the three accused were convicted and sentenced to imprisonment for life.

The matter came up in appeal before the High Court. The High Court observed that "the Advocate's evidence was competent and even compellable. There was no privilege against the court. But the embarrassment to the accused was inevitable, the prejudice inescapable. To plead and to prove, to act as counsel and witness in the same case, even if permissible in any circumstance, was not an easy task. And the trial judge enabled the Advocate to play a dual role and combine the two functions by allowing the defence prayer and permitting the Advocate to address the jury. It is here, we think, that the learned judge misdirected himself. The court had the right to obtain his evidence but it failed in its duty to safeguard the interests of the accused. It mattered little if that course was taken on the prayer of the accused themselves."

The High Court held that the accused did not have a fair trial. It set aside the conviction and directed that the accused be retried in accordance with law. This case can be explained on the ground that there was a serious defect in procedure. The decision is not relatable to any supposed discretion to exclude evidence on the ground of unfairness.

1. Section 482, Cr. P.C., 1973.

2. Matia Goala v. State, (1970) 68 CWN 260.

99.4. In support of the view put forth above as to the present law in India, it may be mentioned that in cases where evidence was obtained by the police by an illegal arrest or search, the Courts have almost universally held that the illegality does not affect the admissibility of the evidence. Not only have they held it to be admissible, but also they have taken such evidence into account in coming to a conclusion on the facts.

Had there been a judicial discretion to exclude evidence on the ground of unfairness or prejudice, that aspect would most probably have come up for consideration, at least in some exceptional cases. Secondly,-taking civil cases-in those judicial decisions where a claim for privilege was made but rejected,1 one does not come across any discussion or mention of a residual discretion. It is therefore a reasonable view to take that our courts do not possess the existence of a judicial discretion, either in civil or in criminal cases.

1. Contrast the English positio.- para. 99.6, infra.

99.5. Position in England.-

As to the position on the subject in England, Cross and Wilkins in the Outline of Evidence,1 state it as follows as regards criminal cases:

"In every criminal case the judge has a discretion to disallow the evidence even if in law relevant, and therefore, admissible if admissibility would operate unfairly against the defendant.2

The use of the discretion for this purpose is apparent in relation to confessions and illegally obtained evidence. The court has a discretion to exclude confessions although they were voluntary within the rules discussed in Article 46 and to reject evidence which is in law nonetheless admissible although improperly obtained. This discretion is exercised mainly in order to prevent the accused from suffering on account of having been unfairly induced to incriminate himself.

Another basis of the exercise of the discretion is the protection of the accused from undue prejudice. Similar fact evidence is, as we saw in Article 76, liable to be rejected if the judge considers that its prejudicial propensity outweight its probative value. This is a completely different basis for the exercise of the discretion from that illustrated by the exclusion of confessions; there can be no doubt about the probative value of a confession which complies with the rules governing voluntariness. The discretion to exclude statements made in the presence of the accused is also based on the danger of undue prejudice being caused by evidence of slight probative value.

We saw on page 229, that, even though cross-examination is legally permissible under section 1(f) of the Criminal Evidence Act, 1898, it may be disallowed in the judge's discretion. This is an extension of the judge's discretionary control of any cross-examination. It is especially important in the case of an accused giving evidence on his own behalf, but there is a general requirement that the cross-examination must be fair to the witness. Fairness to witnesses also accounts for the discretion claimed by the courts to disallow questions on the ground that the answers would involve the disclosure of confidences, although those confidences are not the subject of a legally recognised privilege. This latter exercise of the discretion has only been mentioned in civil cases. In fact, it is possible that it would be held inapplicable in a criminal case on account of the public interest at stake."

1. Cross & Wilkins, Outline, 1975, p. 248.

2. Lord Parker, C.J. in Canis v. Gunn, (1964) 1 QB 495: (1963) 3 All ER 677 (680).

99.6. Civil Cases regular.-

It is in relation to claims to privilege1 from answering questions in cross-examination that the courts' exclusionary discretion has been invoked in civil cases. The basis on which the discretion has been exercised has been that of balancing the competing interests of disclosure in furtherance of the administration of justice between the parties and non-disclosure in the interest of confidentiality. It seems that the trial judge has a discretion to uphold a witness's claim to be privileged from answering certain questions although no privilege exists as a matter of law, and even though the questions are relevant and necessary for the purpose of the particular proceedings.2

The only reported cases concern claims to privilege by doctors and priests and journalists; but, in the context of the exclusion of evidence in the public interest, it has been recognised that the public has an interest in the preservation of confidentiality which must be weighed against the private interest of the parties and the importance of the due administration of justice between them.3

1. Cross Evidence, (1974), p. 30.

2. A.G. v. Mulholland; A.G. v. Pester, (1963) 2 QB 477: (1963) 1 All ER 767.

3. Alfred Crompton Amusement Machinery Ltd. v. Commissioner of Customs and Excise (No. 2), (1973).-2 All ER 1169; Normich Pharmacal Co. v. Customs and Excise Commissioners, (1973) 2 All ER 943.

99.7. There is no English authority1 suggesting that, in civil cases, the judge has a discretion to disallow improperly obtained admissions, or prejudicial evidence relating to misconduct on other occasions and, in each instance, there is Commonwealth authority to the contrary.2-3

1. Cross Evidence, (1974), p. 30.

2. Ibrahim v. R., 1914 AC 599 (610).

3. Manenti v. Malbourne Tramways, 1954 VLR 115 (118); Cross Evidence, (1974), p. 30.

99.8. It may be mentioned that where Cross and Wilkins have referred to the discretion in relation to cross-examination, they have in mind the power of the court to disallow questions which are needlessly offensive or embarrassing in form. This power is similar to that under section 151 of our Act.

99.9. Privilege.-

As to situations involving an unsuccessful claim of privilege Donovan L.J. made these observations1 in A.G. v. Mulholland-"I agree. I add a few words only about the need for some residual discretion in the court of trial in a case where a journalist is asked in the course of the trial for the source of his information. While the journalist has no privilege entitling him as of right to refuse to disclose the source, so. I think, the interrogator has no absolute right to require such disclosure. In the first place the question has to be relevant to be admissible at all; in the second place it ought to be one the answer to which will serve a useful purpose in relation to the proceedings in hand-I prefer that expression to the term 'necessary'.

Both these matters are for the consideration and if need be, the decision of the judge. And over and above these two requirements, there may be other considerations, impossible to define in advance, but arising out of the infinite variety of facts and circumstance which a court encounters, which may lead a judge to conclude that more harm than good would result from compelling a disclosure or punishing a refusal to answer. For these reasons. I think that it would be wrong to hold that a judge is tied hand and foot in such a case as the present and must always order an answer or punish a refusal to give the answer once it is shown that the question is technically admissible. Indeed, I understand the learned Attorney-General to concur in this view namely, that the judge should always keep an ultimate discretion.

This would apply not only in the case of journalists, but in other cases where information is given and received under the seal of confidence, for example, information given by a patient to his doctor and arising out of that relationship, in the present case, where the ultimate matter at stake is the safety of the community, I agree that no such consideration as I have mentioned, calling for the exercise of a discretion in favour of the appellants, arises, and, that accordingly, their appeals fail and must be dismissed.

1. A.G. v. Mulholland, (1963) 1 All ER 767.

99.10. Whether change needed.-

The next question is whether it is desirable that the courts in India should be vested with a judicial discretion to exclude evidence and, if so, on what grounds. Notwithstanding the English precedent, it appears to us that to confer such a discretion may lead to a certain amount of vagueness in the administration of the law. This is not to say that in regard to those sections which expressly confer a power on the court to exercise its sound judgment, there should be a modification of any substance by way of narrowing down their scope. They operate on definite matters. The question with which we are concerned is whether there should be recognised a "residual discretion"-to borrow a phrase from the judgment of Donovan L.J. in the English case of Attorney General v. Mulholland.

The questions permissible in cross-examination are the subject matter of section 148. We are also recommending the insertion of a restrictive provision as to questions relating to the character of a person suing for defamation.1 Those provisions of the Act which prohibit the putting of indecent or offensive questions will also continue to be in the Act. But, aside, from those provisions, it may not be feasible to vest a general discretion in the court to exclude evidence that may have been obtained by unfair means or may otherwise cause prejudice to a party. Such a provision might lead to undue vagueness and thereby render unpredictable the actual outcome in a large number of cases.

1. Section 55 as recommended.

99.11. In regard to the view expressed by Donovan L.J. in the English case of Attorney-General v. Mulholland-2265 to 2268-Where he suggested that the court has, even in a civil case, a discretion to exclude a communication of a confidential nature even where the law does not recognise a privilege as such, the vesting of such a discretion in the courts in India might lead to want of uniformity.

99.12. No change.- We do not therefore recommend any change.

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