Report No. 69

1.31. Stephen's Bill.-

Since the first Bill did not meet with approval, a new Bill was prepared by Sir James Fitzjames Stephen, and was ultimately passed as the Indian Evidence Act, 1872.

It should be noted that Stephen prepared (a) the Indian Evidence Act, 1872, (b) an English Bill of 1873, and (c) Digest of the Law of Evidence (first published in 1876)1.

The Act was adapted to territories elsewhere, from Ceylon2, Burma, Malayasia and Singapore in the East to countries in the West3, as well as to large tracts of Africa4, such as Kenya, Nigeria and Uganda5.

1. Nokes Codification of the Law of Evidence, (1965) 5 ICLQ 347 (350).

2. Jennings and Tombish The Dominion of Ceylon (1952), pp. 236, 281, 297, referred to in Nokes Codification of the Law of Evidence, (1956) 5 ICLQ 347 (350).

3. For example, Revised Laws of Grenada, (1953), i, 939; Laws of the Turks and Caicos Islands (1952), i, 194 referred to in Nokes, Codification of the Law of Evidence, (1956) 5 ICLQ 347 (350).

4. Morris Evidence in East Africa.

5. Law of Kenya in force, 1948 (n.n.), i. 109; Law of Nigeria (1948), iii, 42; Laws of the Uganda Protectorate (1951), i, 92; See also Laws of the Zanzibar Protectorate (1935), i, 353.

1.32. That, broadly stated, is the genesis and historical background of the Act.

1.33. Systems of law.-

There are several systems of the law of evidence in force in the various countries of the world; but, principally, we could divide them into the Anglo-American system, the Continental system, the system in force in Eastern Europe and the native system. The continental system-to mention the principal characteristics-has in contrast with common law system, the minimum of rules of evidence in the legal framework, and assigns to the judge a more active role. The most striking distinction between the continental system and the common law system is the prominence of cross-examination in the latter and the dominance of the presiding officer in the former.

In addition, there are, in the continental system, provisions designed to ensure a pre-recording of facts to a larger extent than the common law system. The greater use of notaries and the fuller opportunity for a record of the statements of the accused illustrate this. Incidentally, it may be mentioned that the provision in section 164 of the Code of Criminal Procedure, 1973, is reminiscent of the continental system of recording statements-though, of course, this does not imply that a statement under section 164 is substantive evidence.

In the common law system-to mention only the very important characteristics-there is a large mass of rules laid down by the courts or legislature for the determination of facts; the judge plays a subordinate part, in contrast with the part played by the counsel; where the system of trial by jury prevails, questions of fact are exclusively for the jury; and the content of the law of evidence is, therefore, richer than in the continental system.

The system in force in certain countries of Eastern Europe, though largely based on the continental system, differs from it inasmuch as there is lesser emphasis on technical rules and the search for the truth is not restricted by numerous rules.

1.34. In the Encyclopedia Britannical, the systems of evidence have been briefly described:

"Generally speaking, two different systems of the law of evidence are prevalent all over the world: the Anglo-American and the Continental European systems. The latter can be sub-divided into three variants: the Germanic, the French or Roman, and the Socialist patterns. The Germanic variant tries to utilize all means of proof; it follows the principle of formlessness and balance between the accusatorial and the inquisitorial principles. The French or Roman variant favours evidence by documents and is dominated by a very formal procedure of "enquete" or investigation.

The Socialist variant makes believe that objective truth might be ascertained by evidence. It therefore favours the inquisitorial principle and does not protect witnesses, parties, and experts by privileges or procedural rights. Japan provides an interesting example of mixture of the Continental European system (Germanic and Roman variants) with the Anglo-American system with the continental model dominating, however".

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