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Report No. 69 Section 20 9.53. Introductory.- Under section 20, statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute, are admissions. The illustration to the section puts the case where the question is whether a horse sold by A to B is sound. A says to.-"Go and ask C, C knows all about it". C's statement is an admission. 9.54. English law.- The position in this regard in England is, in substance, the same. Persons to whom one of the parties has asked another party to refer, are described in English text-books as "referees". Stephen1 even says that admission by a person referred to by a party comes very near to the case of arbitration. Some of the earlier English cases even go to the length of saying that the admission of the referee would be conclusive; but opinion on the subject is not settled. In this respect, section 31 of the Indian Evidence Act is quite clear, and the admission is not conclusive as such, though it can operate as an estoppel. Of course, if the parties agree to be bound by any statement which a third person may make, on a reference, then the statements of such referees may be binding.2-3 But this would be by reason of contract, and not by reason of the law of evidence, concerning stolen property, and the list in question was a list of stolen articles which the accused had bought. From certain later cases,4-5however, it would appear that the absence of the accused would not affect the admissibility of the statement of the referee in such cases. 1. Stephen's Digest, Article 19, note. 2. See discussion in Himaanchal v. Jatwar, ILR 46 All 710. 3. See also discussion in Akbari Begum v. Rahmat Hussain, AIR 1933 All 861 (880): 1933 All LJ 1127. 4. R. v. Gray, (1911) 6 Cr App R 242. 5. R. v. Campbell, (1912) 8 Cr App R 75. 9.55. Reverting to English cases which specifically deal with the admissions of a referee, we may mention an action against executors, where the defendants (executors) had written1 to the plaintiff that if the plaintiff wished for further information as to the assets, it could be ascertained from a certain merchant. The reply of the merchant was held to be receivable against the executors. 1. Williams v. Inns, 1 Camp 364. 9.56. The section is confined to suits. The principle may not be different in the case of criminal proceedings. The matter arose, but was not conclusively decided, in an English case.1 The accused told a constable that his wife would make out a list of certain property. A list which was afterwards made out by the wife and handed over to the constable in the presence of the accused was held to be evidence against the accused. Coleridge C.J. however expressly refrained from giving an opinion upon the question if the position would have been different if the accused had been absent. This case related to a trial concerning stolen property, and the list in question was a list of stolen articles which the accused had brought. From certain later cases,2-3 however, it would appear that the absence of the accused would not affect the admissibility of the statement of the referee in such cases. 1. R. v. Mallory, (1884) 15 Cox 458: 13 QBD 33. 2. R. v. Gray, (1911) 6 Cr App R 242. 3. R. v. Campbell, (1912) 8 Cr App R 75. 9.57. Recommendation.- While occasions for applying section 20 in criminal cases are rare, it is proper that for the expression "suit", the expression "civil proceeding" should be substituted.1 We recommend that the section should be so amended. 1. Compare recommendation as to section 19.    |
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