The dictionary meaning of the word review is “the act of looking, offer something again with a view to correction or improvement”. As explained by the Apex Court in S. Nagraj and others v. State of Karnataka and another 1993 Supp (4) SCC 595, review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. The purpose of review is rectification of an order which stems from the fundamental principle that the justice is above all and it is exercised only to correct the error which has occurred by some accident without any blame.

2. The power of a Civil Court to review its judgment/decision is traceable in Section 114 CPC and the grounds on which review can be sought are enumerated in Order 47, Rule 1 CPC, which imposes definitive limits to the exercise of power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But it may not be exercised on the ground that the decision was erroneous on merits because it would be the province of a Court of appeal. Order 47 Rule 1 CPC is reproduced as under:-

“REVIEW : 1. Application For Review Of Judgment.

(1) Any person considering himself aggrieved –

(a) by a decree or order from which an appeal is allowed, but from which, no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him may apply for a review of judgment to the court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review or judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation : The fact that the decision on question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.

3. The first principle for exercising power of review is that it cannot be exercised as an inherent power. It must either be conferred by the law either specifically or by necessary implication. As held in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, the power of review is very much endowed upon High Court under Article 226 of the Constitution of India, being a court of plenary jurisdiction, in order to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Such power of review is to be exercised within the definitive limits, for which the grounds provided under Order 47 Rule 1 CPC provides sufficient guidance. The object and ambit of power of review has been explained by the Supreme court in Shri Ram Sahu (dead) through LRs and others v. Vinod Kumar Rawat and others 2020(12) Scale 415, in following terms:-

`…9. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of section 114 CPC, it appears that the said substantive power of review under section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47, Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47, Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review….’

4. The parameters provided in Order 47 Rule 1 CPC are three-fold, i.e., discovery and new and important evidence or matter, which after exercising due diligence was not in the knowledge of the person seeking review; mistake or error apparent on the face of record and any other ground which analogous to the aforesaid two grounds. In order to appreciate the workability, scope and extent of these grounds, it is imperative for us to delineate the principles as settled by the courts from time to time.

I. Discovery of new and important matter or evidence

5. When review is sought on the ground that some new evidence or matter has been discovered, the onus is on the party seeking review to show that such matter or evidence is relevant and it should be of such character that if same had been produced, it might have altered the judgment. Mere discovery of new evidence or new matter alone is not sufficient to seek review, it must necessarily of such importance having potential to change the view taken by the court at the first instance. The further controlling circumstance for seeking review on this ground is that the party seeking review has to show that such additional matter or evidence was not within its knowledge and even after due diligence same could not have been produced before the court earlier. The court before entertaining review on the ground of discovery of new matter or evidence is required to record its satisfaction about the three aspects, which can also be called as “triple test” i.e., (i) new matter/evidence discovered is of such nature which could change the judgment (ii) such new matter/evidence was not within the knowledge of the party seeking review (iii) same could not be produced before court even after due diligence. When any of the conditions of the test, as laid down above is not fulfilled, “discovery of new matter/evidence” ipso facto would not be sufficient ground for the court to interfere with the finality of the judgment.

6. This was the view expressed by the Hon’ble Supreme Court of India in the case of “The State of West Bengal and others v. Kamal Sengupta and others 2008 (8) SCC 612“, wherein the apex court had laid down the conditions required for seeking review of the judgment on the ground of “discovery of new matter or evidence”. The relevant para of the judgment reads as under:-

`…..14. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justiciae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier….’

II. Mistake or Error apparent on the face of record

7. A mere error whether factual or legal is not sufficient to invoke review jurisdiction because as has also been observed the Apex Court in Asharfi Devi (D) Thr LRs v. State of U.P. and others 2019(5) SCC 86, in order to attract the provisions of Order 47, Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case. As the phrase suggests, an error or mistake to be a ground to seek review must be such, which may strike one on a mere looking at the record and would not require a long-drawn process of reasoning to reach the conclusion that there has been a mistake or error. A mistake which is discovered after a process of reasoning would not qualify to be “an error apparent”. The following observations explaining the meaning of “error apparent on the face of record” in “Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 are worth noting: –

“An error which has to be established by a longdrawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from selfevident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.”

8. Only a “patent error” and not a “mere wrong decision” can be said to be an error apparent on the face of record. In Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 Supreme Court 233, the court held that error apparent must be something more than a mere error and must be one which is manifest on the face of the record. Similar observations were made by the Apex Court in the case of Parison Devi v. Sumitri Devi (1997) 8 SCC 715 holding that an error which has to be detected by reasoning can hardly be called as an error apparent on the face of record. It was observed as under:-

“9. Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not selfevident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be ‘reheard and corrected’. A review petition, it must be remembered has a limited purpose and cannot be allowed to be ‘an appeal in disguise’.”

9. Thus, a mistake or error which the party pleads for seeking review must be one which is self-evident, if a matter is required to be first reheard and then corrected, it would be an appeal under the guise of review. The courts have time and again emphasized on the narrow difference which exists between an appeal and a review. The courts exercising review jurisdiction have been time and again cautioned to not to walk on the path of reassessment of the judgment while hearing review application. While doing so, the courts have evolved “multiple facets” explaining scope and extent of “mistake or error apparent on the face of record” as a ground for seeking review.

10. Merely because a document which was forming part of the record was not considered at the time of deciding the case cannot be categorized as a mistake or error apparent on the face of record as was held by the Hon’ble Supreme Court of India in the Aribam Tuleshwar Sharmma v. Aribam Pishak Sharma and others (1974) 4 SCC 389. Such ground is the province of a court of appeal as under appellate jurisdiction, the court may correct all manner of errors committed by the subordinate court, but the review court can only review a mistake/error which is apparent on the face of record. An erroneous decision on merits cannot be a ground of review. The observations of the court reads as under:-

`….The Judicial Commissioner gave two reasons for reviewing his predecessor’s order. The first was that his predecessor had overlooked two important documents Exs. A-1 and A-3 which showed that the respondents were in possession of the sites even in the year 1948-49 and that the grants must have been made even by then. The second was that there was a patent illegality in permitting the appellant to question, in a single writ petition, settlement made in favour of different respondents. We are afraid that neither of the reasons mentioned by the learned Judicial Commissioner constitutes a ground for review. It is true as observed by this Court in Shivdeo Singh v. State of Punjab [AIR 1963 SC 1909] there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.

In the present case both the grounds on which the review was allowed were hardly grounds for review. That the two documents which were part of the record were not considered by the Court at the time of issue of a writ under Article 226 cannot be a ground for review especially when the two documents were not even relied upon by the parties in the affidavits filed before the Court in the proceedings under Article 226. Again that several instead of one writ petition should have been filed is a mere question of procedure which certainly would not justify a review. We are, therefore, of the view that the Judicial Commissioner acted without jurisdiction in allowing the review. The order of the Judicial Commissioner dated December 7, 1967 is accordingly set aside and the order dated May 25, 1965, is restored. The appeal is allowed but without costs…’

11. After quoting the passage from Aribam Tuleshwar Sharma (Supra) with approval, the apex court once again reiterated in Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170, that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 CPC. The ratio laid down in the case of Parsion Devi (supra), Meera Bhanja (supra) and Aribam Tuleshwar Sharma (supra) was reiterated by the Hon’ble Supreme Court in Sasi (D) Through Lrs. v. Aravindakshan Nair and others AIR 2017 SC 1432, and following observations were made: –

`…6. The grounds enumerated therein are specific. The principles for interference in exercise of review jurisdiction are well settled. The Court passing the order is entitled to review the order, if any of the grounds specified in the aforesaid provision are satisfied.

7. In Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 Supreme Court 1372 the Court while dealing with the scope of review had opined:

“What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an `error apparent on the face of the record’). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an `error apparent on the face of the record’, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by `error apparent’. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.”

8. In Parsion Devi v. Sumitri Devi, 1997(4) RCR (Civil) 458 : (1997) 8 SCC 715, the Court after referring to Thungabhadra Industries Ltd. (supra), Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 and Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389, held thus:-

“Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise””

12. It is further settled that the power of review is to be exercised for “correction of mistake” and not for “substitution of view”. In Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC 596, the apex court observed that a review cannot be claimed for fresh hearing of the matter or for correction of an erroneous view taken on earlier point of time. The error of law or fact of which correction is being sought must “stare in the face” without needing an elaborate argument for establishing same. The observations of the court reads as under:-

“….30. The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression ‘any other sufficient reason’ used in Order 47, Rule 1 means a reason sufficiently analogous to those specified in the Rule…”

13. In the case of Lily Thomas v. Union of India (2000) 6 SCC 224, apex court observed and held that the power of review can be exercised for correction of a mistake but not to substitute a view. Only because there was a possibility of two views and the court had chosen to adopt one, can never be ground for review. A review cannot be an appeal in disguise. The observations of the court in this regard are as under: –

`….56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment. …’

14. The re-appreciation of evidence for finding the mistake or error in the judgment is beyond the scope and purview of the review jurisdiction. If in any case the court is required to reappreciate the evidence in order to find out the error/mistake in the judgment, it would amount to re-hearing of case which is domain of an appellate court. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. The Hon’ble Supreme Court in the case of Kerala State Electricity Board v. Hitech Electrothermics & Hydropower Ltd. & Ors., (2005)6 SCC 651, clarifying this aspect, held as under:-

“10. …….In a review petition it is not open to this Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.”

15. The order of the High court reviewing its judgment was held to be bad by the Apex court in Rajender Kumar v. Rambhai AIR 2003 SC 2095 on the ground that the High Court entered upon the exercise of reappreciation of evidence without first satisfying itself that order suffers from such an error which could lead to failure of justice. Unless and until, such an error exists, order cannot be reviewed. The relevant observations of the court are as follows:-

`…5. On a perusal of the order under challenge it is clear that the High Court without considering the question whether the judgment/order sought to be reviewed suffered from any error, entered upon the exercise of reappreciating the evidence and on such reappreciation of evidence redetermined the compensation by reducing the amount to the extent noted earlier.

6. The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed.

7. Coming to the merits of the case, suffice it to say that on perusal of the order, which has been reviewed by the order under challenge did not suffer from any serious illegality, which called for correction by exercise of review jurisdiction.

16. The Hon’ble Supreme Court in the case of Inderchand Jain (D) through L.Rs v. Motilal (D) through L.Rs (2009) 14 SCC 663, reiterated the aforesaid view and held that re-appreciation of evidence is beyond the review jurisdiction.

17. A repetition of old and concluded argument, which was not accepted by the court at first instance, is not enough to repone the concluded adjudications. If once an argument does not get imprimatur of the court and the case was decided, the party cannot seek a rehearing of the original matter. The Apex Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., (2006) 5 SCC 501 by referring to a review petition seeking review on same relief and grounds as pleaded in original petition, observed that such “second innings” is impressible under guise of review and held as under :

“11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.

12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of “second innings” which is impermissible and unwarranted and cannot be granted.“

18. Even a failure to argue a point at the time of hearing of the matter by the court, is also not a ground for seeking review as it would be a case where the existing material was overlooked by counsel and not a case of excusable misfortune or mistake. This was so observed by a Division Bench of the Orissa High Court in the case of Union of India v. Sudhir Kumar Ray and Ors, AIR 1975 Ori. 64, holding as follows:-

“Failure to argue a point is not an envisagable ground for review under Order 47 Rule 1 CPC, according to which in only three cases mere review is permitted. Those cases are where new material has been overlooked by excusable misfortune, mistake or there is an error apparent on the face of record and where there is ‘any other sufficient reason’. The present case is not covered by the first two classes of cases. No new material has been overlooked by excusable misfortune or mistake; it is a case of an existing material being overlooked by the counsel and not a case of excusable misfortune nor a mistake. There is also no error apparent on the face of record.”

19. A perusal of the aforesaid precedents leaves no doubt that the Courts have repeatedly held that the jurisdiction and scope of review is not that of an appeal. It is a reluctant resort only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. The path on which the review court has to walk upon is indeed very narrow and guarded by the definitive limits. It has to make sure that while deciding review, it shall not transgress the limits and enter province of an appellate court. A petition seeking review cannot be entertained at drop of hat. “Any” or “every” mistake is not sufficient for invoking review jurisdiction. Mistake has to be such which is apparent and manifest on the face of record and if not corrected, would result into miscarriage of justice. There is no definitive test laid down to assess as to which mistake will be an error apparent on the face of record. From perusal of the judicial precedents as discussed above, it transpires that a mistake to be apparent shall be “self-evident” and “stare in the face” of it. If a mistake has to be discovered after examining the record and requires an argument to establish it, such mistake or error would be not be “apparent on the face of record” and would cease to qualify as a ground for seeking review. What is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it is thus, left to be determined judicially on the facts of each case.

20. The observations of Apex court in Delhi Administration v. Gurdip Singh Uban and others AIR 2000 SC 3737 are worth noting here wherein an argument was raised before the court that in every case where there is “injustice”, the Court should not feel shackled by rules of procedure nor constrained by the limited scope of a review application. The argument was rejected by the court after making reference to essay authored by Justice Cardozo, which in fact summarizes the boundaries within which a court has to act while balancing the rights of parties within the four corners of law and to not sway away under the influence of plea of “justice” and “injustice”. The observations of the court are as follows:-

23. The words “justice” and “injustice”, in our view, are sometimes loosely used and have different meanings to different persons particularly to those arrayed on opposite sides. “One man’s justice is another’s injustice” [Ralph Waldo Emerson : Essays (1803-82), First Series, 1841, “Circles”]. Justice Cardozo said:”The web is tangled and obscure, shot through with a multitude of shades and colours, the skeins irregular and broken. Many hues that seem to be simple, are found, when analysed, to be a complex and uncertain blend. Justice itself, which we are wont to appeal to as a test as well as an ideal, may mean different things to different minds and at different times. Attempts to objectify its standards or even to describe them, have never wholly succeeded.” (Selected Writings of Cardozo, pp. 223-24, Falcon Publications, 1947.)

24. While the man who succeeds may think justice is on his side, the man who loses is prone to think that injustice has been done to him. Most litigants who have not won, presume that injustice has been unreasonably inflicted upon them. Their approach is subjective and personalised. Therefore, this appeal by Shri Shanti Bhushan for “justice” can take us nowhere. The State and DDA which are on the other side are impersonal bodies and if they are exercising statutory powers for public good and acquiring land for public purposes, the Court has to balance the rights of parties and this has to be done within the four corners of the law. We are not lay courts meting out justice according to our whims and fancies but are governed by law as well as by binding precedent.

III. Any other sufficient reason

21. The third ground enumerated under Order 47 Rule 1 CPC for seeking review is “any other sufficient reason”. There is no definition provided for the term “any other sufficient reason”. It is a general ground provided along with special grounds i.e., “discovery of new matter or evidence” and “mistake or error apparent of the face of record”. For interpreting the general words, doctrine of ejusdem generis also known as Lord Tenterden’s Rule, comes to the rescue. As per the said doctrine, when a list of specific words are being followed by the general words, the general words are interpreted in a way so as to restrict them to include the items or things which will be of same type as those of the specific words. The underlying principle behind the doctrine is that the color and context of the general words are to be derived from their context. Likewise, the expression “any other sufficient reason” when interpreted in view of aforesaid principle would mean such “sufficient reason” which is analogous to those specified immediately to it in the provision Order 47 Rule 1 CPC. In Chhajju Ram v. Neki and Ors, AIR 1922 PC 112, it was held by the Privy Council that analogy must be discovered between two grounds specified therein namely; (i) discovery of new and important matter or evidence; and (ii) error apparent on the face of record, before entertaining the review on any other sufficient ground.

22. In Moran Mar Basselios Chatholicos v. Most Rev. Mar Poulose Athanasius AIR 1954 SC 526, the Hon’ble Supreme Court of India, has interpreted words “any other sufficient reason” in the manner as follows:-

`…..It has been held by the Judicial Committee that the words “any other sufficient reason” must mean ” a reason sufficient on grounds, at least analogous to those specified in the rule”. See — Chhajju Ram v. Neki’, AIR 1922 Privy Council 112. This conclusion was reiterated by the Judicial Committee in —‘Bisheshwar Pratap Sahi v. Parath Nath’, AIR 1934 Privy Council 213 and was adopted by our Federal Court in — ‘Heri Shankar v. Anath Nath’, AIR 1949 Privy Council 106 at pp. 110, 111. Learned counsel appearing in support of this appeal recognises the aforesaid limitations and submits that his case comes within the ground of “”mistake or error apparent on the face of the record” or some ground analogous thereto..’

23. The same view was reiterated in Debi Prasad and Ors. v. Khelawan and Ors., AIR 1957 All. 67; and Mohammad Hasan Khan v. Ahmad Hafis Ahmad Ali Khan and Anr., AIR 1957 Nag. 97 and thereafter in Lily Thomas (supra) wherein the court observed as under:-

`….58. Otherwise also no ground as envisaged under Order 40 of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal case, (1995) 3 SCC 635 It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words “any other sufficient reason appearing in Order 47 Rule 1 CPC” must mean “a reason sufficient on grounds at least analogous to those specified in the rule” as was held in Chhajju Ram v. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa, AIR 1954 SC 440 this Court held that such error is an error which is a patent error and not a mere wrong decision…’

24. The principles as regards the scope and extent of review jurisdiction of the court, as also discussed above, have been summarized by the Hon’ble Supreme Court in Kamlesh Verma v. Mayawati and others 2013 (8) SCC 320 and were reiterated by the Hon’ble Punjab and Haryana High Court as well, in the case of Columbia Holdings Pvt Ltd and others v. State of Haryana and others RA-CW-357 of 2015. The principles set out in various judicial precedents can be summarized as follows:-

A. Exercise of review jurisdiction is called for only in cases where one of the following grounds exists:

(i) When there is discovery of new and important matter or evidence, subject to the fulfillment of the following conditions:-

a. new matter/evidence discovered is of such nature which could change the judgment

b. such new matter/evidence was not within the knowledge of the party seeking review

c. same could not be produced before court even after due diligence

(ii) When mistake or error apparent on the face of the record.

(iii) When there exists “any other sufficient reason”, which is interpreted as analogous to the aforesaid two grounds.

B. The review jurisdiction is not exercisable on following grounds:-

(i) Only a “patent error” and not a “mere wrong decision” can be said to be an error apparent on the face of record.

(ii) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(iii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(iv) If a matter is required to be first reheard and then corrected, it would be an appeal under the guise of review

(v) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(vi) The power of review is to be exercised for “correction of mistake” and not for “substitution of view”. Substitution of view would be the province of an appellate court.

(vii) Merely because a document which was forming part of the record was not considered at the time of deciding the case cannot be categorized as a mistake or error apparent on the face of record.

(viii) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.

(ix) The mere possibility of two views on the subject cannot be a ground for review.

(x) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(xi) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.

(xii) Failure to argue a point at the time of hearing of the matter by the court, is also not a ground for seeking review as it would be a case where the existing material was overlooked by counsel and not a case of excusable misfortune or mistake.

25. A perusal of the aforesaid judgments and principles reveals that the scope of review jurisdiction is narrow. As was rightly summed up by Justice Krishna Iyer in Northern India caterers (India) Ltd. v. Lt. Governor of Delhi 1980 (2) SCC 167, “A plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon“. Therefore, unless and until there is patent error in the judgment delivered which is visible on the face of it, the review jurisdiction cannot be exercised.

]]> https://lawfinderblog.com/scope-and-extent-of-review-jurisdiction-of-the-court/feed/ 0 https://lawfinderblog.com/evidentiary-value-of-confession-or-disclosure-statement-made-by-accused/?utm_source=rss&utm_medium=rss&utm_campaign=evidentiary-value-of-confession-or-disclosure-statement-made-by-accused https://lawfinderblog.com/evidentiary-value-of-confession-or-disclosure-statement-made-by-accused/#respond Tue, 10 Jan 2023 07:57:59 +0000 https://lawfinderblog.com/?p=4332

The subject of confession is not defined in the Indian law. As per Article 22 of Stephen’s Digest of the Law of Evidence, Confession is defined as “an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime”.

Article 20(3) of the Constitution of India mandates that no person accused of any offence shall be compelled to be a witness against himself. In the light to the aforesaid provision, the Indian Legal System does not accord much significance to confessions by an accused.

Section 25 of Indian Evidence Act, 1872 deals with confession made by any person to a police officer and states that no such statement can be proved against any person accused of any offence. This section works on the logic that if confessions to police were allowed to be used as evidence, the police would torture the accused and force him to confess to a crime which he might not have committed. The words “statement made to a police officer” necessarily connote the idea of communication or in other words, a statement being communicated to a police officer by any person. These words also definitely imply that there should be some direct or indirect nexus or connection between the person making the statement and the police officer. Therefore, it is clear that there must be some communication to a police officer for the purposes of showing that the statement was made to a police officer.

Section 26 of Indian Evidence Act deals specifically with those confessions which are made by an accused whilst he is in the custody of a police officer and states that no such confession shall be proved against the person who is making it.

Section 27 of Indian Evidence Act lays down that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. This section was once a matter in controversy as the contents of it might appear to be contradictory to its preceding sections. It is more than a mere exception to all or any of the preceding sections; it deals with ”information” whereas the preceding sections deal with only confessions. Sections 25 and 26 of Indian Evidence Act overlap to some extent as a confession by a person in custody to a police officer is hit by both of them. Section 27 of Indian Evidence Act deals with any information confirmed by subsequent facts received from a person in custody whether such information is received by a police officer or by someone else.

A confession made by the accused, while he is in custody or not, to a police officer or the making of which is procured by inducement, threat or promise having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence. Confession made by the accused whilst in the custody of a police officer to a person other than a police officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate. That part of the information given by a person whilst in police custody whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered no more, is provable in a proceedings in which he is charged with the commission of an offence. A statement made a person to police officer in the course of an investigation of an offence under Chapter XIV of the Code of Criminal Procedure, cannot except to the extent permitted by Section 27 of the Indian Evidence Act, be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when the statement was made in which he is concerned as a person accused of an offence.

All these sections, the expression “accused person” in Section 24 of Indian Evidence Act and the expression “a person accused of any offence” have the same connotation, and describe the person, against whom evidence is sought to be led in a criminal proceeding. Even if it is an admission, if it is made in the course of investigation under the Cr.P.C. to a Police Officer, then the same will not be admissible under Section 162 of the Cr.P.C. as it clearly prohibits the use of the statement made to a police officer under Section 161 of the Cr.P.C. except for the purpose, which is mentioned therein.

A statement made by an accused person is admissible against others who are being jointly tried with him only if the statement amounts to a confession. Where the statement falls short of a confession, it is admissible only against its maker as an admission and not against those who are being jointly tried with him.

Sections 25 and 26 of Indian Evidence Act were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence. By the combined operation of Section 27 of the Evidence Act and Section 162 of the Code of Criminal procedure, the admissibility in evidence against a person in a criminal proceedings of a statement made to police officer leading to the discovery of a facts depends for its determination on the question whether he was in custody at the time of making the statement. The said statement is provable if he was in custody at the time he made it, otherwise it is not. Where a person goes to a police officer and makes a statement which shows that an offence has been committed by him, he accuses himself and though he is formally not arrested, since he is not free to move wherever he likes after disclosure of the information to the police he must be deemed to be in custody of the police. After interrogation, the accused makes a statement and led the police to a field and thereafter produced certain articles which were the subject-matter of a criminal offence was sufficient to establish that there was submission on his part to police custody. The word ‘custody’ in Sections 26 or 27 of Indian Evidence Act, does not mean formal custody but includes such state of affairs in which the accused can be said to have come into the hands of a police or can be said to have been under some sort of surveillance or restriction. Thus in all cases the ‘police custody’ is deemed to extend even when the accused was deemed to have submitted to such custody of a police officer by submitting to the interrogation and by making statements about discovery and who could not thereafter be said to be a freeman. If the statement to police is hit under Sections 25 or 26 of Indian Evidence Act as tainted evidence.

The principle underlying Section 27 of Indian Evidence Act that the evidence relating to confessional or other statement made by a person while a person is in the custody of the police is tainted and, therefore, inadmissible. But if the truth of the information given by him is assured by discovery of a fact, it may be presumed to be untainted. This would on the one hand shut out all evidence of a tainted nature while on the other hand permit the proof of so-much of the information whether it amounts to confession or not distinctly leads to the discovery of a fact on the ground that its truth is assured.

In the light of these principles first consider whether the confession is hit by Sections 24 to 26 of Indian Evidence Act and thereafter consider the question of applicability of the proviso contained in Section 27 of Indian Evidence Act which creates the limited exception by making admissible that part of the information which distinctly relates to the facts discovered provided that the accused person is deemed to have submitted himself to the police custody.

Section 162 Cr.P.C. excludes a statement made to a police officer but would not exclude the incriminatory conduct of an accused decrypted and discerned. Section 162 Cr.P.C. bars the prosecution from relying on the statement of an accused, and not evidence relating to the accusing conduct, before, at the time of occurrence and thereafter, divulged and disseminated by the accused when confronted or questioned by the police officers. The said provision states that the conduct of a party, both antecedent and subsequent in reference to a proceeding or reference to any issue or relevant fact is relevant. Where inculpatory information or other clues are revealed by the accused, evidence of the Investigating Officer to this effect would be admissible under Section 8 of the Evidence Act, when the said fact is corroborated by a third person for the facts testified by the public witness would relate to the conduct of the accused. The information given by an accused that provides lead to the Investigating Officer that unravel facts relating to the accused’s conduct, which were till then unknown to the Investigating Officer and which could not have been known, but for such information coming from the accused when sufficiently proved and corroborated by a public witness would fall under Section 8. This evidence can be relied to prove the accused’s complicity. The evidence of conduct when led would carry the credibility and weight depending on the facts including nature of confirmation and back ground facts, as is the case of Section 27 of the Evidence Act. The probative value and weight are matters of assessment dependent upon the factual matrix of each case. Sometimes the disclosure statement made by the accused is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8 of the Evidence Act. The expression ‘fact discovered’ includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused.

Admission is defined in Section 17 of the Evidence Act, as a statement suggesting any inference as to any act in issue of relevant fact made by a party to a proceeding, such as an accused. Admissions are relevant and may be proved as against the person making them, vide Section 21 of Evidence Act. A confession is a specie of an admission of an accused. It is an acknowledgment in express words of the truth of the guilty fact charged. It is admission of all the facts in issue and consists expressly or impliedly of as many admissions as there are facts in issue.

The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of the accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act.

The ‘right against self- incrimination’ does not protect persons who may be compelled to undergo the tests in the course of administrative proceedings or any other proceedings which may result in civil liability. It is also conceivable that a person who is forced to undergo these tests may not subsequently face criminal charges. In this context, Article 20(3) will not apply in situations where the test results could become the basis of non-penal consequences for the subject such as custodial abuse, police surveillance and harassment among others.

Similarly, a statement recorded under Section 67 of the NDPS Act cannot be used against an accused offender in the trial of an offence under the NDPS Act.

The Hon’ble Supreme Court noticed common deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings for interpreting and exhibiting the disclosure statements. So, the Hon’ble Supreme Court has suo moto took the action to check and cure the anomaly. The Hon’ble Supreme Court has directed the Hon’ble High Courts to make the rules regarding the exhibiting of the disclosure statemnts of the accused. The hon’ble Supreme Court has observed that the Presiding Officers shall ensure that only admissible portion of Section 8 or Section 27 Indian Evidence Act, 1872 is marked and such portion alone is extracted on a separate sheet and marked and given an exhibit number. This will make the uniformity regarding the interpretation, appreciation and exhibition of the disclosure statement in the trial.

Bibliography

Pulukuri Kottaya v. Emperor : 1947 AIR (PC) 67

State v. Memon Mohamed Hussain Ismail : 61 Bom LR 715

Legal Remembrencer v. Lalit Mohan_Singh : AIR 1922 Calcutta 342

Santokhi Beldar v. Emperor : AIR 1933 Patna 149

State of U.P. v. Deoman Upadhyaya : AIR 1960 Supreme Court 1125

Mt. Maharani v. Emperor : AIR 1948 Allahabad 7

Mohmed Inayatullah v. The State Of Maharashtra : AIR 1976 SC 483

Kirshnappa v. State Of Karnataka : AIR 1983 Supreme Court 446

Suresh Chandra Bahri v. State of Bihar : AIR 1994 Supreme Court 2420

State of U.P. v. Deoman Upadhyaya : AIR 1960 S.C. 1125

Mohd. Inayatullah v. State of Maharashtra : 1976 (1) SCC 828

Udai Bhan v. State of Uttar Pradesh: AIR 1962 SC 1116

Prakash Chand v. State (Delhi Administration): (1979) 3 SCC 90

Bhojram of Hon’ble PV Council v. Sitaram, AIR-1936 PC 60

Babulal v. Caltex : AIR 1967 PC 205

State of Orissa v. Kaushalya Devi : AIR 1965 SC 38

Dipakbhai Jagdishchandra Patel v. State of Gujarat : 2019 AIR (SC) 3363

Pakala Narayana Swami v. Emperor: AIR (1939) PC 47

Palvinder Kaur v. State of Punjab: AIR 1952 Supreme Court 354

Veera Ibrahim v. State of Maharashtra : AIR 1976 Supreme Court 1167

M.P. Sharma v. Satish Chandra : AIR 1954 Supreme Court 300

State of Bombay v. Kathi Kalu Oghad : AIR 1961 S C 1808, (11 judges bench)

CBI v. V.C. Shukla and others : AIR 1998 S.C. 1406

Pakala Naravana Swami v. King Emperor : AIR 1939 Privy Council 47

Kusal Toppo v. State of Jharkhand : 2019(13) SCC 676

Selvi v. State of Karnataka : 2010 (7) SCC 263

Nandini Satpathy v. P. L. Dani : 1978 (2) SCC 424

Suo Moto Writ (Crl.) No. 1 of 2017. D/d. 20.4.2021.

It is a cumbersome task to classify the documents into various categories. The wisdom of the legislature in the year 1872 has to be appreciated in this regard. Not only the classification of documents into different categories have been made but it is equally a tedious task to define differentiate and distinguish each category of document. The classification made by the Legislature is unique and has withstood the testing time of about 150 years.

Documents have been divided into two categories:- (a) Primary Evidence and (b) Secondary Evidence. In this article, my focus is limited to the extent of defining the primary evidence. Under section 64 of the Indian Evidence Act, 1872 (hereinafter called the “Act”), all the documents are to be proved by way of primary evidence except in the cases enumerated under section 65 of the Act. Although the science has not developed in the year 1872 to the extent as it has developed nowadays, yet the legislature had visualized that human mind may devise certain machinery/technique by which he is able to do the mischief to cause a wrongful gain to himself and a wrongful loss to the opponent party.

Definition of Primary Evidence:-

Section 62 of the Act, aptly defines the primary evidence as under:-

62. Primary evidence.-Primary evidence means the document itself produced for the inspection of the Court.

In Black’s Law Dictionary, 6th Edition; Primary Evidence has been defined as under:-

Primary Evidence means original or first hand evidence; the best evidence that the nature of case admits of, the evidence which is required in the first instance and which must fail before secondary evidence can be admitted. That evidence which the nature of the case or question suggest as the proper means of ascertaining the truth, it is the particular means of proof which is the most natural and satisfactory of which the case admits, and includes the best evidence, which is available to a party and procure able under the existing situation and all evidence failing short of such standard, and which in its nature suggest there is better evidence of the same fact is secondary evidence.

This definition given in the Black’s law dictionary also clarifies that the primary evidence is the original or firsthand primary.

Explanation 1.-Where a document is executed in several parts, each part is primary evidence of the document; Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2.- Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.

Illustration

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

For the purpose of a facilitation to understand the true impact and meaning of this definition, two explanations and one illustration are appended therein. The sole purpose of adding explanation is that the legislature wanted to further fortify the definition with illustration, while illustration is added by way of an example to clarify further the true impact of the definition.

Thus, the primary evidence means the original or firsthand information, which the nature of the case admits. The evidence which is required in the first instance to be produced before the court is the primary evidence. No doubt can be attributed to the original document produced before the court. Otherwise also why a party ought not to produce the primary evidence in the first instance.

Explanation No.1:-

When we go through this explanation, it is divided into two parts. The first part provides that where a document is executed in several parts, each part is primary evidence of the document.

An agreement or a compromise is executed between three or more parties. Number of sets of the agreement or compromise are prepared at one and the same time. Each part is signed by the all parties and witnesses at one and same moment in the present of each other. Such parts becomes the primary evidence.

A will, when required to be registered, is to be prepared in duplicate. The copy of will is typed out at the same time. It is signed by the scribe, testator and the witnesses. The second copy is kept by the Sub Registrar at the time of registration of will in his record. First copy of the will is handed over to the testator. Once the copy of will is signed by scribe, testator or the witnesses, it assumes the character of the original document. However, same is applicable in all type of documents viz. sale deed, mortgage deed, gift deed etc. However, the only lacuna in the said copy retained in the office of Sub Registrar is that it is not written or scribed on the proper stamp paper. Non appending of stamp paper has been held by the courts to be in the formed of the secondary evidence, whereas, under section 74(2) of the Act says that public record kept in any state of private documents is covered under the definition of the Public Documents. In the considered opinion of the author, it is submitted that no discrimination should be shown to the original sale deed, mortgage deed, gift deed and the copy of same retained in the office of Sub Registrar, where the said document is registered.

The second part of explanation-1 is a bit complicated, as it provides that if a document is executed in counter part, each counter part being executed by one or some of the parties only, each counter part is primary evidence as against the parties executing it. Thus, applying the dictum of this second part of the explanation, it becomes crystal clear that the copy retained in the office of Sub Registrar, which is duly signed by the scribe, executant and the witnesses becomes the primary evidence and can never be considered as secondary evidence.

Explanation-2:-

This explanation is based on the scientific technique invented by human brain for preparing a large number of copies. The essentials of this explanation are that where a number of documents are all made by one uniform process, as in the case of printing, lithography, photography, each is primary evidence of the contents of the rest, but where they are copies of common original, they are not primary evidence of the contents of the original.

When we analyze this explanation in its entirety, it is deducible from it is that there are different essential and processes prescribed in it. Such different essential and processes have to be separately dealt with.

The opening lines of the explanation reads as, “where a number of documents are made by one uniform process”, it mandates that number of documents are to be prepared. All the documents are to be prepared by one uniform process. If the process of preparation of document is different, then, it will be outside the purview of this explanation. The emphasis of the legislature is of the uniform process. Some further illustrations of uniform process are given in the later part of the explanation.

Printing:- The second part consists of printing. In the year 1872, printing was the main process of preparation of documents. Printing press prepares the copies of documents in the same process and then, these are considered to be primary evidence.

Lithography:- The process of printing from a flat surface treated as to repel the ink except when it is required for printing. You may have seen the printing of fabric by wooden or stone blocks. On the said printed blocks, the human do carry out the designs with the help of needle and thread.

Counter-part:- This word has not been defined anywhere either in the Act or under the General Clauses Act. For understanding the true meaning of the word counter-part we can rely upon Black’s law dictionary 6th Edition, wherein the counter-part has been defined as under:-

In convincing, the corresponding part; a duplicate or a copy. Where an instrument of conveyance, as a lease, is executed in parts, i.e., by having several copies or duplicate made and interchangeably executed, that which is executed by the grantor is usually called the original and rest are counter-parts; although, where all the parties execute every part, this renders them all originals.

Illustration

A perusal of the illustration appended to Section 62 of the Act, provides that if a person is shown to be in possession of number placards, all printed at one time from one original. Anyone of the placards is the primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

A close scrutiny and analysis of this illustration shows that original is one. From that original, a number of placards are printed at one time, then each placards is the primary contents of any other, but no one of them is the primary evidence.

Conclusion:-

From the discussion made above, it can be easily assumed and presumed that there is a fine distinction between the primary evidence in the form of original document and a copy of the document retained by Sub Registrar or any other authority prepared in the same process. In case, the copies retained in the office of Sub Registrar are considered to be the primary evidence a lot of time energy and money will be saved in proving the said document as a primary evidence. A certified copy of a public document under section 74 of the Act is per se admissible and requires not proof unless covered under the contours of section 68 of the Act.

[1*] The author passed degree in Master of Laws from the Panjab University Chandigarh in the year 1978. He has been practicing on civil side at Ludhiana. He has been a guest professor in Panjab University Regional Centre, Ludhiana. The author has written various articles, which have been published in the journals. The author has also addressed various webinars on facebook/youtube on various legal aspects to enlighten the younger generation. He had judged various moot competitions held in PURC, Ludhiana. Contact No. 9814712425, email: advocateajayjindal@gmail.com, Ch.No.425, 4th Floor, Advocates Complex, District Courts, Ludhiana, Punjab.

[2*] The co-author started visiting the courts since May, 2011 and completed his law graduation from Panjab University, Chandigarh and is regularly doing practice on Civil Side. Email:-Abhayjindal14@yahoo.co.in, M No. 9814912425

In my opinion, the process of recovery should be used in criminal trials but with reasonable restrictions. When we talk about the process of recovery which is derived from the theory of subsequent facts it becomes all the more important to refer to Section 27^[1*] which states “a person accused of any offence, in the custody of a police officer”^[2*]. Now the question arises that whether the discovery is admissible when the accused is in police custody or not in police custody. This has been in debate since the year 1884 as in Queen Empress v. Babu Lal^[3*] where the privy council held that the accused should be in police custody. This was later reversed in 1932 in the case of Namasudra v. Emperor^[4*] that held information to discovery could be outside the custody also. The current position is that what was held in the case of State of U.P. v. Deoman Upadhyay^[5*] where Shah, J. mentioned the said provision is not violative of Article 14 of the Constitution^[6*] as this is manifestly reasonable and creates an intelligible differentia between police custody and outside it. They also expanded the scope of police custody to constructive custody. This concept arises due to flexible interpretation of Section 46 of the Code of Criminal procedure^[7*]. This was again followed in Aghnoo Nagesia v. State of Bihar^[8*]. Also, in Lachman Singh v. State of U.P.^[9*] it was held that Section 27^[10*] is admissible only when accused is in police custody otherwise barred by Section 162 of Cr.P.C.^[11*].

[1* Section 27, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[2* Ibid.]

[3* Queen Empress v. Babu Lal, (1899) ILR 21 AII 106 (India).]

[4* Durlav Namasudra v. Emperor, (1931) SCC OnLine Cal 146 (India).]

[5* State of U.P. v. Deoman Upadhyay, (1961) 1 SCR 14 (India).]

[6* Indian Constitution, Article 14.]

[7* The Code of Criminal Procedure, Section 46 (1898).]

[8* Aghnoo Nagesia v. State of Bihar, (1966) 1 SCR 134 (India).]

[9* Lachman Singh v. State, (1952) SCR 839 (India).]

[10* Section 27, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[11* The Code of Criminal Procedure, Section 162 (1898).]

From the above position it is clear that the accused should be in police custody which is the constructive custody and in no way does it allow the accused to be outside the police custody. So the “,” in Section 27^[12*] should be omitted and “and” should be inserted that is “a person accused of any offence and in the custody of a police officer”. This would lead to clarity with both of these being essential for Section 27^[13*] to act as an exception to the general rule. Also this was the legislative intent as before the enactment of this section under the Indian Evidence Act, these provisions were present in the then Section 149 of the Code of criminal procedure code and which included “or” and which was removed in the year 1872 and changed it to “,”.

[12* Section 27, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[13* Ibid.]

The second question is concerning the admissibility of this section as being violative of Article 20(3)^[14*]. This position was clarified by a twofold test given in the case of State of Bombay v. Kathi Kalu Oghad^[15*] which also held that the discovery is not self-incriminatory if it is not given under any threat. The test was as follows –

1) The testimony does not tend to incriminate the accused

2) Does this testimony make the accused at least probable for committing the crime

[14* Indian Constitution, Article 20, Clause 3.]

[15* State of Bombay v. Kathi Kalu Oghad (1962) 3 SCR 10 (India).]

This position was reiterated in Selvi v. State of Karnataka^[16*] which added two more tests to protect the rights of the accused. These are as follows-

1) The extent to which the accused was compelled.

2) Exercise of Judicial discretion concerning the unfair operation principle.

[16* Selvi v. State of Karnataka, (2010) 7 SCC 263 (India).]

After these tests it is clear that Section 27^[17*] is not violative of Article 20(3) of the Constitution^[18*].

[17* Section 27, The Indian Evidence Act, 1872, Acts of Parliament, 1872 (India).]

[18* Indian Constitution, Article 20, Clause 3.]

Section 26^[19*] of the act talks about the accused’s confessions not being admissible under police officer in the police custody. Thereby restricting its scope to just the police custody which was expanded to constructive custody as mentioned above. Whereas Section 25^[20*] talks about general confessions under the police whose ambit is wider and includes confessions made outside the police custody. Now what section 27^[21*] does is it talks about the exception to the general rule of admissibility of confessions under a police officer by the accused by providing certain requirements that need to be perused. That is why the language of the section starts with the word provided. Since the section is an exception there is vagueness and a grey area concerning which particular provision this exception applies to. It is essential for the accused to be in police custody for this exception to take place. Therefore the second amendment that I propose is that this provision is an exception to only Section 26^[22*] and this should be added as an exception to this provision. This position was also held in Udai Bhan v. State of U.P.^[23*] where they held that “Section 27 is nature of proviso to Section 26”^[24*].

[19* Section 26, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[20* Section 25, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[21* Section 27, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[22* Section 26, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[23* Udai Bhan v. State of U.P., (1962) 2 Cri LJ 251 (India).]

[24* Ibid.]

I am also in favour of the 185th Law commission report^[25*] to the extent that it strikes down the 152nd law commission report’s view to completely repeal Section 27 as all confessions to police to be excluded. Also, it rejects the 69th report’s claim as to Section 27 being the exception to Section 24 as it includes confessions by ” threat, inducement and promise”. This would lead to the use of third-degree torture methods. Also I do not agree with the recommendations of adding “or” to the provision so that it becomes an exception to both Section 26 and Section 27 as although by expanding the scope of police custody by using constructive custody the courts have said that Section 27 would not extend to recovery being outside the police custody.

[25* 185th Law Commission Report, Government of India, Part II http://lawcommissionofindia.nic.in/reports/185thReport-PartII.pdf.]

So the changes I am proposing is Section 27 be repealed and added to Section 26 with one amendment which as follows-

“Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence and in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

Satyameva Jayate (Literally: “Truth Stands Invincible”) is a mantra from the ancient scripture Mundaka Upanishad. Upon independence of India, it was adopted as the national motto of India. It is inscribed in Devanagari script at the base of the national emblem. The meaning of full mantra is as follows : “Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of Truth resides.”

In the unfortunate litigation, the Court’s serious Endeavour has to be to find out where in fact the truth lies. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth. Every trial is voyage of discovery in which truth is the quest. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that “every trial is a voyage of discovery in which truth is the quest”. In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law. The said quotes are taken from a recent judgment by the Hon,ble Supreme Court of India and although on different context, but would be applicable to all the trials including the leading of evidence and supports the case law on the secondary evidence.

Evidence is important part in the legal field. There has always been an issue with regard to proving the documents and particularly, when the original document is not there, either it has been lost, destroyed or in possession of other party and who despite notice of its production either denies its possession or its authenticity. Section 3 of Indian Evidence Act,1872 defines the term Evidence and Document: “Evidence” which means and includes, all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; all documents including electronic records produced for the inspection of the court; such documents are called documentary evidence. The word “Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

It is trite that under the Evidence Act, 1872, facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted.

Chapter V of the Indian Evidence Act,1872 deals with documentary evidence. As per section 61 of Indian Evidence Act,1872, the contents of a document may be proved either by primary or by secondary evidence. Section 62 of Act,1872 define primary evidence, whereas section 63 define secondary evidence. Section 64 mandates documents to be proved by primary evidence except in the cases mentioned in section 65,in which secondary evidence relating to documents may be given. Section 61 to 66 of Indian Evidence Act,1872 reads as:-

61. Proof of contents of documents. – The contents of documents may be proved either by primary or by secondary evidence.

62. Primary Evidence. – Primary evidence means the document itself produced for the inspection of the court.

Explanation 1-Where a document is executed in several parts, each part is a primary evidence of the document.

Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it

63. Secondary evidence. – Secondary evidence means and includes-

(1) Certified copies given under the provisions hereinafter contained;

(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) Copies made from or compared with the original;

(4) Counterparts of documents as against the parties who did not execute them;

(5) Oral accounts of the contents of a document given by some person who has himself seen it.

64. Proof of documents by primary evidence. – Documents must be proved by primary evidence except in the cases hereinafter mentioned.

“65. Cases in which secondary evidence relating to documents may be given. – Secondary evidence may be given of the existence, condition, or contents of a document in the following cases :-

(a) When the original is shown or appears to be in the possession or power –

of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or

of any person legally bound to produce it,

and when, after the notice mentioned in Section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of Section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in (India) to be given in evidence;

(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.”

66. Rules as to notice to produce – Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:-

(1) when the document to be proved is itself a notice;

(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;

(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

(4) when the adverse party or his agent has the original in Court;

(5) when the adverse party or his agent has admitted the loss of the document;

(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.”

The principle underlying the provisions of Section 65 of the Evidence Act is that the best evidence that is available should be produced. The original document is always the best and primary evidence. Section 65 provides an alternative method of proving the contends of a document which for various reasons cannot be produced. However, it is liable to be shown that the original document of which secondary evidence is sought to be produced was in existence. Besides, secondary evidence is admissible when it is shown that the primary evidence which is the original document was in existence. The law on the subject has undergone various changes as a result of interpretation of the provisions of law and with regard to admissibility of evidence, required to be proved by way of secondary evidence. The law with regard to secondary evidence, its admissibility, procedure to be followed to prove the same are enumerated as:-.

Requirements for leading secondary evidence:- Before secondary evidence of a document can be allowed to be led two things have to be satisfied : (1) that the original document was properly stamped and admissible in evidence and (2) that one of the conditions enumerated in section 65 of the Indian Evidence Act entitling the leading of secondary evidence has been established. 1979 PLR 409, Gurcharan Singh v. Harbhagwan, (P&H).

No necessity of filing the application for secondary evidence:- There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed. In deed, there is not even a requirement in law to file an application for reception of secondary evidence. It may be practice in some courts and may be adopted by some counsel. It is neither mandated under Civil Procedure Code nor is it a requirement under the Evidence Act, All that the Evidence Act requires for production of secondary evidence is that one or other circumstance set out under Section 65 of the Evidence Act must be satisfied..2014(9) RCR(CIVIL)3009, Darshan Lal v. Gurmail Singh & others, 2018(3) PLR 181, Harbans Kaur v. Beant Kaur (Argued by the author of this Article) : 2020(2) RCR 437, Dhanpat v. Sheo Ram (SC).

Procedure for reception of secondary evidence:- In Bipin Shantilal Panchal v. State of Gujarat, 2001 (1) RCR (Criminal) 859, the Hon’ble Apex Court has laid down that the procedure has been set for receiving the document when the same is objected to during trial. Practice of holding up trial on objections at the time of tendering of documents was castigated and was held to be an ‘archaic practice’. Leading of secondary evidence would facilitate the Court to test the admissibility, validity and genuineness of the document in terms of its execution. If the execution of the document at the threshold of existence and loss thereof is proved, the Court can rely upon such document in accordance with law and in the event of failure, the Court would eschew the same. In Simarpal Singh v. Hakam Singh 2009 (2) PLR 562, the court had an occasion to refer to the procedure for reception of secondary evidence that nothing more needs to be done than stating one of the grounds as required under Section 65 of the Evidence Act for justification of reception of secondary evidence. Whether the grounds do really exist or not could be tested in cross examination only. The same position has also been affirmed in S.P. Arora v. Satbir Singh, 2009(3) Lawdigital.in 583 (P&H) : 2010 (5) RCR 350, where the Court has explained that the attempt to de-exhibit a document that is received by the court simply does not arise. To prove a document by way of primary or secondary evidence is a rule of evidence. Whether the party seeking leave of the Court to lead secondary evidence ultimately succeeds in proving the document or not is a question of fact and depends upon evidence. It is settled rule of pleadings that a party must disclose material facts and need not plead evidence. The material fact is loss of document and circumstances leading to loss is a question of evidence. This question can only be decided after providing opportunity to the party concerned to lead secondary evidence. To grant leave to lead secondary evidence does not mean the document is admitted in evidence nor it is a finding of the existence of any of the conditions indicated in Section 65 of the Evidence Act. It only amounts to holding an enquiry regarding existence of document and its loss under some circumstances. Failure or success to prove the existence of document or its loss cannot be pre-determined that too without providing opportunity. Whether it is proved or not, is to be seen after the leave is granted and the material/evidence produced, is evaluated.Further supportive case law is 2007(4) RCR(CIVIL) 311, Ashok Kumar Sachdeva v. Harish Malik, (P&H, Jatinder Singh v. Jaswant Singh and another, 2019 (1) PLR 680., The Co-operative Society vs Suresh Kumar & others, 2020(4) RCR(Civil) 175, M/S Devyani Food Industries Pvt Ltd vs M/S Neelkanth Agencies, 2020(1) RCR(Civil) 409. The leading of evidence at the stage pursuant to the passing of the impugned order would not crystallize any substantial right in favour of the defendants, rather the evidence led by the parties would be tested at the threshold of admissibility, validity and genuineness of the document in terms of execution and its nature. Later stage would be an appropriate stage for lawful consideration of such a criteria i.e. validity, admissibility and genuineness of the document. Though there is no provision in law for de-exhibiting the document already exhibited in evidence, but the exhibition of a document, if objected to has to be answered in terms of its admissibility at a later stage. It will be for the Court to examine and decide as to whether it will be appropriate to rely upon such secondary evidence or not for want of compliance of Section 65 of the Evidence Act. In case, Court finds the secondary evidence not reliable, the Court is at liberty to eschew the same. However, the attempt of a party for production and to exhibit the document cannot be thrown at this threshold. 2018(3) PLR 525, Richhpal Singh v. Iqbal Singh, 2019(4) PLR 625, Ashok Kinger vs Pradeep Kinger.

Objecting to reception of documents and forcing an adjudication by the court before a document is assailed and exhibited. Leading of evidence cannot be shunned merely because its probative value would not be of high order. There had been a long time practice of objecting to reception of documents and forcing an adjudication by the court before a document is assailed and exhibited. In the judgment in Bipin Shantilal Panchal v. State of Gujrat (2001) 3 SCC 1 the Supreme Court said that the practice of objecting to the exhibition of documents and inviting the court to give finding on relevance of document has the inevitable consequences of holding up trial and the new practice that was to be supplanted shall be to receive the documents subject to proof, if the court cannot take an immediate decision on the relevance or admissibility of documents. The only exception could be when the document is insufficiently stamped or a document not stamped since the bar to reception of the document is absolute under Section 35 of the Indian Stamp Act. It stands on a different footing, for such reception will itself take away the right of a person to object to the admissibility of the document at a later stage by virtue of Section 36 of the Stamp Act.In Z. Engineers Construction Pvt. Ltd. & Anr. v. Bipin Bihari Behera & Ors., 2020 SCC OnLine SC 184, held that even in respect of deficiency of stamp duty in the State of Orissa where a question arose as to whether possession had been delivered in pursuance of a registered power of attorney, the same was a question of fact which was required to be decided after the evidence was led.

Secondary evidence of a primary document, which itself is inadmissible for want of sufficient stamp duty affixed is not permissible. The law in this regard has been settled in .AIR 1971 SC 1070, Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, (SC), followed in 2007(4) RCR(CIVIL) 548, Hariom Agrawal v. Prakash Chand Malviya, (SC),it has been held “The Evidence Act however does not purport to deal with the admissibility of documents in evidence which require to be stamped under the provisions of the Indian Stamp Act. Chapter IV of the Stamp Act deals with instruments not duly stamped. Section 35(1) of this Act provides that: “Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same”. Further Section 36 lays down that : “Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped”. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. ‘Instrument’ is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act. If Section 35 only deals with original instruments and not copies Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. It is clear from the decisions of this Court and a plain reading of Sections 33, 35 and 2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Indian Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899.

Primary Document inadmissible for want of registration, its secondary evidence is not permissible:- Once a document is inadmissible as per section 49 of the Registration Act,1908 for want of compulsory registration under section 17 of the Act,1908, how the secondary evidence of such a inadmissible document be lead. Once it is clear that the original of the Photostat document was itself required to be registered compulsorily under Section 17(i)(b) of the Registration Act,1908 then the question which falls for consideration is whether a document of which original is not admissible, could be permitted to be proved by allowing adducing of its secondary evidence and the answer is No., Shri Balwant Singh v. Shri Mehar Singh, AIR 1974 Punjab and Haryana 130 followed in 2002(4) RCR 830, Hari Singh v. Shish Ram, (P&H).

Mutation:- It has been held by a Full Bench decision of the Court in State of Punjab v. Pohu and another, 1986 R.R.R. 228 : 1986(1) P.L.R. 109 that mutation is neither a primary nor a secondary evidence of the contents of sale deed and is not at all adequate evidence of the amount of consideration paid in respect of sale transaction. Therefore, the mutations enumerated above produced by the appellant in her support have to be ruled out of evidence., relied in 1987 RRR 330, Smt. Kaushalya Devi v. Union of India, (P&H).

Marking of a document as Exhibit does not dispense with a requirement of legal proof of such document.:-Further, a document does not become evidence per se, by the only fact that it is assigned an exhibit number. Marking a document or assigning an exhibit number does not dispense with a requirement of legal proof of such document. A registration copy of the document tendered in court would have to be supported by i) any of the circumstances for reception of secondary evidence under Section 65 of the Evidence Act ii) the document is spoken and proved in the manner that Section 63 of the Indian Succession Act and Section 68 of the Evidence Act require. These are again essentially matters of evidence which will come through only when the witnesses are put through cross examination at the trial. Grant of permission to lead secondary evidence does not amount to holding that the document is admitted in evidence nor does the same amount to a finding with regard to the existence or loss of the document in question nor does it tantamount to holding a finding of existence of any of the conditions enumerated in section 65 of the Indian Evidence Act. Grant of leave to lead secondary evidence only amounts to holding an enquiry regarding existence of documents and its loss under some circumstance. Failure or success to prove the existence of a document cannot be pre-determined and that too without providing opportunity, Rakesh Mohindra v. Anita Beri and others 2015 (4) RCR (Civil) 1023, 2017(3) LH 2025, Rajbir Singh v. Ved Parkash, (Punjab And Haryana),2020(1) RCR(CIVIL) 409, M/s Devyani Food Industries Pvt. Ltd. v. M/s Neelkanth Agencies (P&H).

Documentary evidence by way of an electronic record:- In the absence of certificate under Section 65B of the Indian Evidence Act, 1872, secondary evidence in electronic mode is not admissible. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act : (i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied : (a) There must be a certificate which identifies the electronic record containing the statement;(b) The certificate must describe the manner in which the electronic record was produced;(c) The certificate must furnish the particulars of the device involved in the production of that record;(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.Anwar P.V. v. P.K.Basheer (2014) 10 SCC 473.

When the primary document is alleged to be in possession of other party:-.In Ashok Dulichand v. Madahavlal Dube and Anr., [1976] 1 SCR 246, and it was held “According to Clause (a) of section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given.”There has to be compliance of section 66 of the Evidence Act. Non compliance of Section 66 of the Evidence Act would make the application liable to be dismissed. Which was relied in 2019(1) PLR 680, Jatinder Singh v. Jaswant Singh and recently in Jagmail Singh vs Karamjit Singh, 2020(2) RCR(Civil) 510., In U. Sree v. U. Srinivas, 2013(1) R.C.R. (Civil) 883, the Hon’ble Apex Court has commented that to permit secondary evidence, which has been destroyed by the person in whose possession it was and whose it created an enforceable right or an obligation, is normally not to be allowed as secondary evidence. The secondary evidence of such nature may be tampered with and it would be against public policy to take chance of running the risk of fraud being committed.In U. Sree v. U. Srinivas, 2013 (1) RCR (Civil) 883, the Hon’ble Supreme Court has held that mere denial by the party to produce the original document in whose possession it is stated to be does not lay down ground for producing secondary evidence. Section 65 of the Indian Evidence Act enumerates in which cases secondary evidence relating to documents can be led. Section 63 (2) may be referred to which allows a document to be admitted as secondary evidence, being a copy prepared by mechanical process and the correctness of the Photostat document has to be established. In a situation where Photostat copy of a document is produced and there is no proof of its accuracy or of it having been compared with or it being true reproduction of the original, such document cannot be considered as secondary evidence. In other words, Photostat copy of a document is not admissible as secondary evidence unless proved to be genuine or is admitted by opposite party. Thus a Photostat copy of a document can be produced in evidence only when it is alleged and proved that the original was in existence and is lost or destroyed or is in possession of opposite party who failed to produce it or in any other circumstances mentioned in section 65 of the Act. Recently in 2020(2) RCR 510, Jagmail Singh v. Karamjit Singh (SC), it has been held that A perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished.

Photostat copy of a document:-.(a) Photostat copy of a document can be allowed to be produced only in absence of original document .b) When a party seeks to produce Photostat copy it has to lay the foundational facts by proving that original document existed and is lost or is in possession of opposite party who failed to produce it. Mere assertion of the party is not sufficient to prove these foundational facts .c) The objections as to non existence of such circumstances or non existence of foundational facts must be taken at earliest by the opposite party after the Photostat copy is tendered in evidence. d) When the opposite party raises objection as to authenticity of the Photostat copy its authenticity has to be determined as every copy made from a mechanical process may not be accurate. Both the requirements of clause (2) of section 63 are to be satisfied. e) Allowing production of Photostat copy in evidence does not amount to its proof. Its probative value has to be proved and assessed independently. It has to be shown that it was made from original at particular place and time. f) In cases where the Photostat copy is itself suspicious it should not be relied upon. Unless the court is satisfied that the Photostat copy is genuine and accurate it should not be read in evidence .g) The accuracy of Photostat copy shall be established on oath to the satisfaction of court by the person who prepared such copy or who can speak of its accuracy.” Surinder Kaur v. Mehal Singh and others 2014(1) R.C.R. (civil) 467.

Secondary evidence of Dying Declaration:-In Aher Rama Gova & Ors. v. State of Gujarat, (1979) 4 SCC 500, the secondary evidence of dying declaration recorded by a Magistrate was produced in evidence. The Court found that though the original dying declaration was not produced but from the evidence, it is clear that the original was lost and was not available. The Magistrate himself deposed on oath that he had given the original dying declaration to the Head Constable whereas the Head Constable deposed that he had made a copy of the same and given it back to the Magistrate. Therefore, the Court found that the original dying declaration was not available and the prosecution was entitled to give secondary evidence which consisted of the statement of the Magistrate as also of the Head Constable who had made a copy from the original. Thus, the secondary evidence of dying declaration was admitted in evidence, though no application to lead secondary evidence was filed.

In the end, rule of justice requires that the documents should be allowed to be brought on record and it is for the court to decide at the time of deciding the final lis with regard to authenticity, admissibility, genuineness of the document and as to whether the secondary evidence fulfills the requirements.

Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of the Supreme Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria through LRs.,: 2012(2) RCR (Civil) 441 :. A timely reminder of that solemn duty was given, in the following words:-

“What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.”

Every Case, whether civil or criminal, depends upon the evidence lead in the case. It is the quality of evidence that decides the fate of the case. The Quantity of evidence is immaterial to decide the fate of the case. The study of Indian Evidence Act,1872 is most essential for a practicing advocate in the civil courts. Unless and until an advocate is not conversant and does not possess the knowledge of the act, he is in a disadvantageous position. It is settled principle of law that no section in any act can be read in isolation. Harmonious interpretation of all the sections will help an advocate/court to arrive at a correct conclusion. Reading of any section in isolation will lead one to a misinterpretation of the provisions of law besides leading him in arguing or advocating incorrect interpretation of the provision which may lead to a poor judgment. It is well known that the quality of judgment is directly connected to the quality of arguments raised before the Court.

EVIDENCE

Evidence can be characterized as oral/documentary evidence. The relevance proof, exhibition and admissibility of evidence has been copiously dealt with and provided in the Indian Evidence Act (herein after called the Act.). The detailed discussion on this subject is contained in my Article Document: Proof, Exhibition and Admissibility published in 2019(3) RCR(Journal Section) Page 43. The same may be referred to in this context.

The powers of the court have also been defined in the Act. Section-61 of the Act provides as under:-

“Proof of contents of documents.-The contents of documents may be proved either by primary or by secondary evidence.”

A close scrutiny of this section reveals that how and in what manner the contents of the documents have to be proved. Though two modes have been suggested in this section. The use of word “MAY” in this section leaves it to the discretion of the person proving the contents of the document. Primary and Secondary Evidence has been defeinded in Section 62 and 63 of the Act.

Section 64 of the Act which reads as follows:-

“Proof of documents by primary evidence.-Documents must be proved by primary evidence except in the cases hereinafter mentioned.”

A conjoint reading of both the above sections leads to only conclusion that documents have to be proved by primary evidence. The use of word”MUST” in this section makes it mandatory besides being a condition precedent that the documents have to be proved by means of primary evidence. Once section 64 of the Act mandates that documents are to be proved by primary evidence, then , section 136 of the Act comes in to play which reads as follows;-

“Judge to decide as to admissibility of evidence.-When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the 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. If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first proved, 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.”

A critical analysis of this section shows that Judge may ask the party proposing to lead evidence as to how the said evidence if proved will be relevant while the second part of this section lays down that the Judge shall admit the evidence, if he thinks fit. It is the sole prerogative of the Judge to admit the evidence on fulfillment of essentials laid down in section 136 of the Act. A duty is cast upon the litigant leading his evidence to prove the documents by way of primary evidence only.

In view of the above discussion it is clear that the Judge has to decide about the admissibility of the Evidence. How a party, without the permission of the Court, Suo moto and at his own whims and fancies, can lead secondary evidence of the document. Every word used in all the sections (Supra) have their own importance and meaning.

Even Section 65 of the Act says:-

“Secondary Evidence may be given………………………………………..”

Also shows that after satisfying the conditions laid down in various subsections of Section 65 of the Act, such and evidence may be lead by either party.

IMPORTANCE OF PRIMARY EVIDENCE

The legislature in his wisdom laid down that the contents of the documents have to be proved by primary evidence. Secondary evidence is just like twins, who are born within a short span of time but have their own characteristics habits and fate. Though they look alike but the behavior habits and experience of twins are totally different. If primary evidence is not lead of the contents of the document then it will lead to complete confusion and chaos. Thus, the permission of the court to lead secondary evidence becomes necessary. Otherwise, One party will lead his evidence as per his own wishes. It will lead to complete wastage of time of the court. Otherwise also, why a party should not prove the contents of the documents by way of primary evidence.

JUDICIAL INTERPRETATION BY HIGH COURTS QUA PERMISSION

There is a divergence of opinions amongst various high courts wherein-

(a) In one set of ruling^[3*] provides that no permission is required for leading secondary evidence. The court may at the time of final arguments may decide about the same. Serious objection to such a view is that at the fag end of the trial and during course of arguments, the courts comes to this conclusion that party has failed to provide justification for leading secondary evidence. This set of rulings also lays down that no application supported by an affidavit is required to be filed. Without filing of application and seeking permission of the court, the party is competent to lead secondary evidence. The courts have further held that it has not been mandated anywhere in the Act that application has to be filed under all circumstance. It is humbly submitted that there are number of provisions under the Indian Evidence Act and other Acts(supra) wherein it is not specifically provided that an application is required to be filed. The legislature in its wisdom has not provided under various acts that an application is required to be filed. Such logic does not hold good.

[3* 2019(9) RCR(C) 3009, 2018(3) PLR 181, 2015(5) RCR(C) 941, 2018(4) RCR(C) 409]

(b) The other set of rulings^[4*] have categorically held that an application supported by an Affidavit is required to be filed for seeking permission to lead secondary evidence. In the absence of such application, no party is competent and that too as a matter of right, can lead secondary evidence. Seeking of permission from the court is, thus, mandatory. In absence of such permission the secondary evidence can be outrightly rejected.

[4* 2012(44) RCR(C) 90, 1993(2) RRR 367. 2012(5) RCR(C) 701, 2015(58) RCR(C) 955, 2002(3) RCR(C) 185, 2010(30) RCR(C) 488, 2000(2) RCR(C) 246, 2009(5) RCR(C) 430]

Otherwise also, over the years, a practice has been adopted by the courts/litigants to the effect that they file an application supported by an affidavit enumerating the circumstances laid down in Section 65 of the Act to seek permission of the court. The court after being prima facie satisfied about the existence, loss and proof of the primary evidence, may permit the party to lead secondary evidence. The grant of permission by the court is thus conditional. The onus of proof is on the party leading evidence to prove the existence, loss and proof of the document.

There is plethora of case laws on the point as to in what cases the said conditions have been fulfilled by the party. Secondly the court can decide about the admissibility of such secondary evidence, which is sine qua non or the grant of permission. No hard and fast rules can be laid down in this regard. It depends upon the peculiar facts and circumstances of the case. There may be innumerous circumstances which may exists in a particular case. Otherwise also the law, its interpretation and application goes on varying with the change of circumstances and the changes which may take place in the society from time to time. Law has to adapt according to the changed circumstances.

(c) INTERPRETATION BY SUPREME COURT

The apex court of India^[5*] has categorically laid down that filing of an application supported by an affidavit is must for permission to lead secondary evidence. The party has to lay down the foundation for adducing secondary evidence.

[5* AIR 2000 SC 1759, AIR 2011 SC 1492, 2015(4) RCR(C) 1023 AND 2020(2) RCR(C) 510]

For example:- In a suit for specific performance filed on the basis of an agreement to sell, a photostat copy of the agreement of sale is annexed with the plaint under order 7 Rule 14 CPC. Later on, during the course of evidence the plaintiff moves an application for permission to lead secondary evidence on the ground that the original agreement of sale has been lost by him prior to the filing of the suit. No such fact is either pleaded in the plaint or replication. In these modern days of advance technology, such a Photostat copy can be prepared at any time. Whether in such circumstances, can permission be granted or not?

QUESTIONS TO BE CONSIDERED

i. Whether the view taken by the Apex Court is applicable?

ii. Whether judgments of the High Courts holding that not such application is required to be filed is correct interpretation of law?

iii. Whether prior permission of the court to lead secondary evidence is mandatory or not?

PER INCURIAM AND ARTICLE 141 OF THE CONSTITUTION OF INDIA

The answer to the questions posed above is that the law laid down by the Apex Court of India is binding upon all the courts in India under Article 141 of the Constitution of India. The law laid down by the Apex Court is applicable and has to be followed by the various High Courts in its letter and spirit.

Secondly, the doctrine of “per incuriam” which lays down that any judgment rendered by any court without discussing or differentiating the earlier judgment is bad in law. If the court comes to a different conclusion then it has to refer the matter to a higher bench. Thus, the view taken by the various high courts without discussing the earlier law especially of the Apex Court of India is bad in law. Such an interpretation of law is liable to be ignored as inapplicable and against the law.

CONCLUSION

From the above discussion of the various provisions of the Act and the judicial decision it becomes abundantly clear that the view of various High Courts that no permission is required to lead the secondary evidence is not the correct interpretation. An application supported by an affidavit is required to be filed for leading secondary evidence. No one can be permitted to lead secondary evidence without seeking the permission of the court.

[1*] The author passed degree in Master of Laws from the Panjab University Chandigarh in the year 1978. He has been practicing on civil side at Ludhiana. He has been a guest professor in Panjab University Regional Centre, Ludhiana. The author has written various articles, which have been published in the journals. The author has also addressed various webinars on facebook/youtube on various legal aspects to enlighten the younger generation. He had judged various moot competitions held in PURC, Ludhiana. Contact No. 9814712425, email: advocateajayjindal@gmail.com, Ch.No.425, 4th Floor, Advocates Complex, District Courts, Ludhiana, Punjab.

[2*] The co-author started visiting the courts since may, 2011 and completed his law graduation from Panjab University, Chandigarh and is regularly doing practice on Civil Side. Email:-Abhayjindal14@yahoo.co.in, M No. 9814912425

16TH September, 1985….. the date when the Indian legislature enacted an act in order to make stringent provisions for the control of operations relating to narcotic drugs and psychotropic substances, to implement provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and to provide for the forfeiture of property derived from, or used in illicit traffic in narcotic drugs and psychotropic substances. The name of the act is not oblivious to the legal practitioners.

Yes, THE NARCOTIC DRUGS and PSYCHOTROPIC SUBSTANCES ACT, 1985. Till date various amendments have been incorporated in the act in order to improve efficacy and achieve the object of the act. In this article, we will not discuss and touch all the provisions of the said act, but we will delve into one of the most vexed questions of law involved in the NDPS cases i.e. whether the powers given to empowered officer u/s 67 NDPS Act are akin and in pari materia with the powers u/s 161 Code of Criminal Procedure (CrPC)? Whether the empowered officer can record confession of the accused u/s 67 NDPS Act? Whether the confessional statement made by accused before officer empowered u/s 42 NDPS Act is admissible in evidence? If yes, whether it can be used against himself and co- accused? Whether empowered officers under NDPS Act are police officers?

Before proceeding further, we must understand the language embodied in section 67. Section 67 reads as under:

“67. Power to call for information, etc. – Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act, –

(c) Examine any person acquainted with the facts and circumstances of the case.”

From the perusal of the section 67 in harmony with the entire provisions of the act, it is manifest that there is no power authorised to the empowered officer to record confession of the accused and if recorded, what is its admissibility. Unlike Terrorist and Disruptive Activities act, 1987, the NDPS Act is utterly silent about the recording of confession or making such confession admissible in the eyes of law. But, said section 67(c) empowers the officer authorised u/s 42 to examine any person acquainted with the facts and circumstances of the case. Now, does the word ‘any person’ connotes the expression accused also? Why the legislature inserted word ‘enquiry’ in section 67 rather than the word ‘investigation’?

The NDPS Act nowhere defines the word ‘enquiry’. The dictionary meaning of word enquiry is, an act of asking information, an official investigation. But, the officer empowered u/s 42 NDPS Act has no power to investigate the offences under NDPS Act. Officers empowered u/s 42 are only authorised to enter and search the place, seize the NDPS and arrest the person believed to have committed the offence under NDPS Act. Such power of investigation of an offence can only be exercised by an officer-in-charge of a police station within whose local jurisdiction the offence is committed (see section 156 CrPC). Nevertheless, section 53 of the NDPS Act empowers the Central or State Govt. to invest powers of an officer-in-charge of police station for investigation of offences under NDPS Act, by issuing a notification in Official Gazette. If such officer is not appointed by such govt., then, such powers of investigation has to be exercised by officer-in-charge of local police station.

From the above discussion, it can be concluded that the word ‘enquiry’ used in section 67 NDPS Act for the situation where enquiry is required before conducting the proceedings enshrined in section 42 i.e. entry, search, seizure and arrest, not investigation. Such an argument can be fortified with the provision of section 52(3), which mandatory requires the officer u/s 42 to take the person and article seized to officer-in-charge of nearest police station, or to the officer empowered u/s 53. Therefore, the answer is that the word ‘any person’ used in section 67 cannot be in any case contemplated to include accused person as before the said proceedings u/s 42 by the empowered officer the person can never be in custody of such officer. Moreover, the legislature used the word ‘enquiry’ in the said section rather than word ‘investigation’, which also showcases the intention of legislature to limit the use of section to enquiry for section 42 only, not for investigation of offences under the act. This leads to the answer of another question that power u/s 67 is not akin to power u/s 161 CrPC as the power u/s 161 CrPC can be used during the course of investigation by officer-in-charge of police station, whereas, the power u/s 67 NDPS Act can be exercised only officer empowered u/s 42 NDPS Act with a view to achieve object and purpose of section 42 only, not otherwise. It implies that no confession u/s 67 can be recorded by an empowered officer u/s 42. However, any confession, if any, under NDPS Act can be recorded only by an officer-in-charge of police station conducting investigation or by an officer appointed in this behalf u/s 53 of the said Act.

Now, the next conundrum is whether the confession recorded under NDPS Act by the officer-in-charge of police station or officer appointed u/s 53 is admissible in the eyes law? As far as the question of confession before officer-in-charge of police station is concerned, the section 25 of the Indian Evidence Act is very much clear on this aspect. Section 25 of the Indian Evidence Act reads as:

“25. Confession to police officer not to be proved. – No confession made to a police officer, shall be proved as against a person accused of any offence.”

Meaning thereby, no confession made before officer-in-charge of police station investigating offence under NDPS Act is admissible and hence, cannot be relied upon as officer-in-charge of police station is a police officer. But, whether officer invested with powers of investigation u/s 53 NDPS Act is a police officer for the application of section 25 evidence act? This question was first answered by Hon’ble Supreme Court in the case Raj Kumar Karwal vs Union of India, 1990(1) R.C.R. (Criminal) 719, wherein, it was held that departmental officers given powers of police u/s 53 NDPS Act are not police officer and hence, confession made before them is not hit by section 25 and therefore, admissible. Thereafter, this question was again came for consideration before Hon’ble Supreme Court in Kanhaiyalal vs Union of India, 2008(1) R.C.R. (Criminal) 610, where the Hon’ble Apex Court relying upon decision of Raj Kumar Karwal (supra) held that confession made before officer of NCB is admissible in evidence and the said officer is not a police officer within meaning of section 25 of Evidence Act. But, in the year 2013, the Hon’ble Apex Court doubted the correctness of ratio of Kanhaiyalal (supra) case in Tofan Singh vs State of Tamil Nadu, 2013(4) R.C.R. (Criminal) 631 and refer the matter to larger bench saying that a re-look is required into case of Kanhaiyala (supra) for reconsideration of the issue as to whether the officer investigating the matter under NDPS Act would qualify as police officer or not.

Well, by the time the matter is pending before the larger bench of the Hon’ble Supreme Court, the courts should refrain themselves from adopting the ratio of law laid down in Raj Kumar Karwal (supra) and Kanhaiyalal (supra) since the law laid down in both the said cases is incorrect because the decision in the said cases was formed without discussing the object of NDPS Act, the provisions of NDPS Act, especially section 42, 53 and 67, and the object of section 25 evidence act. Moreover, it can be noted down here that at the time of framing evidence act, the legislature must not have even contemplated that such a situation of investing powers of police to departmental officers (see S.53) would arise in the future and not even so, it is basic principle of law that legislature is always presumed to have known all the existing laws and if the legislature intends to not to include departmental officers within the purview of section 25 evidence act, it would have amended the section 25 of the said act too. Furthermore, unlike TADA Act, no express provision has been incorporated in the NDPS Act to make the confession of accused admissible. This implies that the legislature never intended to make confession under NDPS Act admissible.

EPILOGUE

The following conclusion can be deduced from the aforesaid deliberation:

(1) That under the NDPS Act, no confession can be recorded u/s 67 since the no such power has been invested with the empowered officer u/s 67 either explicitly or impliedly.

(2) That confession of an accused, under NDPS Act, can only be recorded by an officer-in-charge of concerned police station conducting investigation or the officer empowered by the government u/s 53 NDPS Act.

(3) The office empowered to investigate u/s 53 are also police officers within the meaning of section 25 Evidence Act.

(4) That confession recorded by officer empowered to investigate u/s 53 can never be admissible in the eyes of law, unless there is such express provision in the NDPS Act, as it would be against the policy and object of section 25 Evidence Act.

Suppose a person X is an accused in the offence of commission of murdering Z and he has been arrested by the police. During investigation, X confesses in police custody that he has committed murder of B by giving him knife blow in his stomach and after the murder, he concealed the knife used in the offence at a place which only he knows and he can help the police in getting the same recovered from that place. Now, in this entire confessional statement of accused X in police custody, the statement with respect to factum of commission of murder is a confession, but the statement or information disclosing the factum of concealment of weapon of offence and recovering of the same in its consequence is a disclosure statement of an accused. In other words, when something is discovered as a result of information or statement given by accused in police custody, that statement is known as “Disclosure Statement”. It can be a confessional or not, which depends upon the facts and circumstances of a case. In Indian law, there is no use of word `Disclosure Statement’, but there is a provision introduced in the Indian Evidence Act, 1872 (hereinafter referred as “the Act”), i.e. Section 27, which corresponds with such concept. Section 27 of the Act provides that when any fact is discovered in consequence of information received from a person accused of any offence, in police custody, such information as relates to that fact discovered can be proved (see section 27). It is founded on the principle that even though the evidence relating to a confessional or other statements made by a person in police custody is tainted and so inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable insofar as it distinctly relates to the fact thereby discovered.

But the questions fall for consideration here are that whether section 27 applies only to information received in police custody? Whether section 27 is a proviso and if yes, to which sections? Whether section 27 is proviso to section 24 also? Whether section 27 needs to be amended in view of public interest and achieving its principle object? In this article, we would delve into these aspects and try to reach at some reasonable and logical conclusion.

Section 27 is one of the most important, but, at the same time, one of the most controversial sections in the Evidence Act. It has tremendous bearing upon criminal proceedings in the courts in the country. The section starts with the word “provided”. Therefore, it can be said that it is a proviso to the previous sections. But, it is not clear to which section, among section 24 to 26, it is a proviso. There is no difficulty that section 27 is a proviso to section 26. But is it also a proviso to section 25, where statement leading to a discovery are made by accused not in custody? In Pakala Narayanaswami’s case (AIR 1939 PC 47), the Privy Council observed that “section 27 seems to be intended to be a proviso to section 26”. In Udai Bhan v. State of UP AIR 1962 SC 1116, the Supreme Court observed that section 27 is a proviso to section 26. In State of UP v. Deoman Upadhaya AIR 1960 SC 1125, the majority of Supreme Court judges rejected a plea that section 27 is violative of Article 14 as section 27 applies only to statements made in police custody and not to statements made by persons not in police custody. The majority observed that this anomaly in regard to inadmissibility of statements by persons not in custody is the result of section 162 of Code of Criminal Procedure and not because of anything in the Evidence Act. Hence, Art. 14 is not violated if facts discovered in consequence of statement by persons in custody are relevant and admissible and not by persons who are not in custody. However, Subba Rao J. held the provision in section 27 discriminatory if it applied only to statements made u/s 26 and not u/s 25.

In fact, a three Judge Bench in Chinnaswamy’s case (AIR 1962 SC 1788) stated that section 27 is an exception to section 25 also. In Aghnoo Nagesia case (AIR 1966 SC 119), this view has been reiterated (see Sanjay v. State Govt. of Delhi 2001(3) SCC 190; Pandurang Kalu Patil & Anr v. State of Maharashtra 2002 (1) JT SC 229). That means the discoveries made pursuant to statements falling u/s 25 by persons not in custody are also admissible. Further, if what is admissible u/s 27 is a) discovery of material object, b) place where it was discovered and c) knowledge of the accused about the object, then such facts are relevant and admissible even when the accused is not in police custody, either u/s 8 (subsequent conduct) or u/s 9 . So, there is no reason for not applying section 27 to statements leading to discovery made under section 25. Hence, in my view, Section 27 is a proviso not only to section 26, but also to section 25. Therefore, the view adopted by the majority bench in Deoman Upadhaya supra is incorrect and needs to be reconsidered.

Now, the next question is whether section 27 is a proviso to section 24 also? The answer to this particular question is also not provided in the Act. Section 24 of the Act is founded on the principle of public policy. The object and legislative intent behind the insertion of this section is to discourage the practice of threat, inducement, promise and coercion in extracting the confession of a person. It is intended to discourage the tendering of hopes or promises or the exercise of coercion, in order to induce or compel the making of confessions. Section 24 is not based merely on the criterion of truth. It is intended to discourage coercion in the wide sense for securing confessions. Section 24 enacts a rule which should have universal application. In various countries, including UK, USA and CANADA, all discoveries, including those made from statements obtained by threat, inducement or promise and coercion are treated as admissible. But the Law Commission of India in its 69^th report proposed exclusion of facts if obtained by threats, inducement or promise. The Commission felt that if such facts were part of statements made in circumstances provided in section 24, i.e. threats, inducement or promise that would encourage police or other person to act arbitrarily. Hence, facts revealed from statements falling u/s 24 should not to be admissible. The paramount rule of policy embodied in section 24 must override section 27. But, the review committee on the said 69^th report recommended that inducement and promise should be segregated from threat, violence or torture and treat discoveries made from statements obtained by inducement and promise admissible, while making facts obtained by threats, coercion or violence or torture inadmissible, in order to strike right balance between the right of the accused on the one hand and the public interest involved in making such facts relevant. In my view, the said recommendation proposed by review committee is absolutely correct and in view of the same, necessary amendments should be done in section 27.

Conclusion

From the above discussion, it can be rightly concluded that the legislature must look into the anomalies of section 27 and amend its provision considering the following aspects:

(1) Section 27 should be made applicable on accused persons not in police custody,

(2) If an accused person confesses or provide any information to police or any person, whether in police custody or not, and in consequence to that information or statement, any fact is discovered, then such fact and information must be admissible in evidence, whether such information or statement has been obtained by inducement or promise, but not by threat or coercion or pressure, if the fact discovered is especially within the knowledge of such accused person only and not others.

(3) Section 27 must be made proviso or exception to general rules of admissibility of confession or statement made by an accused as contained in sections 24, 25 and 26 of the Act or in other provisions of law governing statements made by accused i.e. Section 161 CrPC read with 162 CrPC, by making necessary amendment in its provision. As of now, the plain reading of the section portrays it as an exception to Section 26 only as the word “in the custody of a police officer” is used in the language of the section.

Court cases are always decided on the basis of the evidence recorded in the case. No effective judgment can be passed by the court without recording and appreciating the evidence fortifying the facts of the case. The trial of a civil case starts after framing of issues with the process of recording of evidence. Evidence consist is of two types i.e. Oral Evidence and Documentary Evidence. Witnesses are summoned/examined by both the parties to prove their respective cases. Some witnesses make only the oral deposition without referring to any document while other witness depose regarding the document written by them, attested by them or signatures/writing identified by them while other witnesses depose regarding the document scribed by them or attested by them or by identifying the signatures/writing of the executants/witnesses of these documents. The examination of a witness has been provided in section 137 of the Evidence Act, 1872 while cross examination of a witness is provided in section 138 of the Evidence Act.

The statement of a witness consist of three parts:-

1. Examination in chief is recorded by the party calling the witness

2. Witness is cross examined by the adverse party

3. Re-examination can be conducted with the permission of the court in case there crops up some ambiguity or a new fact is brought in the cross examination.

EXAMINATION IN CHIEF

Prior to the amendment of court of Civil Procedure, the examination in chief of the witness was recorded in open court in presence of the opposite party. The scenario has changed after the amendment of the Code of Civil Procedure in the year 2002. Under the amended provisions of order 18 Rule 4 CPC, the examination in chief has to be tendered by the party calling the witness in the form of a duly sworn affidavit. This practice has been adopted to save the time of the court in recording the examination in chief in open court. Such an affidavit is dictated, typed, signed and attested in the chambers of the advocates tendering the same. The opposite party has no control to object to the contents of the affidavit. Most of the High Courts have not framed any rules governing the preparation, contents and mode of exhibition of documents in the said affidavit.

An affidavit assumes the character of an affidavit after its attestation by the Oath Commissioner or Notary Public. As a logical consequence, photocopies of the attested affidavit ought to be supplied to the opposite party alongwith the true copy of the documents exhibited in such affidavit. Such a practice ought to be followed strictly. Adjournments are being sought by the unscrupulous litigants on the ground of non-supply of the copy of affidavit alongwith the documents with a view to delay the proceedings in the case. Most of the time, extraneous facts such as legal objections or other averments of the plaint are verbatim reproduced in the affidavit. Judges as well as the opposite party should be cautious enough at the time of tendering of affidavits in chief to object to the same. The court should ensure that photocopies of the attested affidavit with the copy of the documents exhibited ought to be supplied to the opposite party so as to avoid unnecessary adjournments on this ground.

CROSS EXAMINATION:-

Cross examination is a powerful and a valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of a story. The extent of its effectiveness, no doubt depends on the dexterity of the weilder of this weapon. But every cross examiner should and can if he is careful and indicate in cross examination, whatever part of the evidence given in the examination in chief is challenged and an omission to do will lead to the inference that the evidence is accepted subject of course to its being assailed as inherently improbable.^[2]

Woodroffes and Ameer Ali in their commentary on Law of evidence In India in 12thEdition(1969) has described aptly the role of the court in the following words:-

“The whole subject of the Viva Voce examination of witness in open court is confined of necessity to a very great extent to the sound judicial discretion of the judge presiding at the trial; and but few positive and unbending rules have been laid down with regard to it. The control of the Court here referred to, is that it possesses over the manner and the extent of an examination of a witness. The admissibility of testimony is another question. The time and manner, however, of examining the witness is in the discretion of the judge before whom the trial is held. The discretion extends to determine the length of time and the extent to which the witness may be examined. So, the judge may interfere and protect the witness against irrelevant inquiries and overrule a question repeated after being asked several times, substantially answered and allow the witness to furnish a proper answer in a proper manner to a question before permitting another to be put.”

EFFECT OF AMENDMENT OF CODE OF CIVIL PROCEDURE

After the amendment of code of civil procedure, the task of recording the cross examination has been relegated to the Local Commissioner appointed for the purpose. The local commissioner has no power/control to decide the admissibility of the question. His job is clerical and to mechanically record the answer to the question. As a consequence thereof, lengthy, prolix cross examination is allowed to be recorded which is seldom referred to during the course of arguments. The expenses of the local commissioner for getting the cross examination recorded is postponed to several sittings putting unnecessary financial burden on the party.

Where commission is issued for examination of a witness, the commission has no power to disallow question, he considers irrelevant as he cannot be called a judge within section 138 of the Evidence Act.^[3]

In the opinion of the author, the cross examination of material witnesses should be recorded under the direct supervision of the judge who should intervene and curtail the lengthy cross and asking of irrelevant questions. Hasty disposal of cases often lead to injustice. The court ought to dispense justice and not dispense with justice.

VOLUNTEERING EVIDENCE

The latest trend which has started is that the witness in response to the answer to a specific question tends to repeat the facts already stated in the examination in chief or omitted to be stated in chief. Further such volunteering information/evidence leads to asking of volley of question to nullify the effect of such volunteering information. When objection is taken in this respect by the cross examiner, normally the judge allows the same to be recorded on the ground that it will be seen/adjudicated at the time of final arguments. Such a deferment is fraught with legal consequences. Often no decision is given in the final judgment.

Woodroffe’S and AmeerAli(Supra) has opined on this issue as under:-

“Volunteering evidence

A witness may not foist into his answer in any examination statements not in answer to the question put to him. This is called “Volunteering evidence” and the pleader of the opposite party should be on his guard to check its introduction by objection. The trial judge should upon motion strike out answers that are not in response to questions asked, i.e. those answers which state facts not called for by the questions or goes which express an opinion as in the case of experts. But when a part of the answer is not in response to the question, only, that part will be stricken out which is objected for not being responsive”

EFFECT

Applying the view expressed by the learned Authors(Supra), it is crystal clear that no volunteering information should be allowed to be recorded when an objection is being taken by the opposite party. Judicial file should not be overburdened by such uncalled utterances. In case, the question is ambiguous and is capable of admitting two answers, only then, the question should be recorded and the answer may also be recorded separately

For example if the question is asked as under:-

Q-Whether you have stopped beating your wife?

Such a question if answered by simple yes or no will lead to legal complications. Thus, the answer of the witness can be as under:-

A. Since I have never beaten my wife, as such, there is no question of stopping the same.

CASE LAW

The author has been able to lay his hands only on one judgment on this issue which has been rendered by the Bombay High Court wherein it was held that where a witness volunteers a statement and it is not in response to a question of counsel who is examining the witness. However, when the other party has no objection, the court may proceed with that part of the deposition which has come on record as a result of witness volunteering, to deal with the matter. If the opposite party objects to the same, then, it ought to be struck down.^[4]

[1] The author passed degree in Master of Laws from the Panjab University Chandigarh in the year 1978. He has been practicing on civil side at Ludhiana. He has been a guest professor in Panjab University Regional Centre, Ludhiana. He had judged various moot competitions held in PURC, Ludhiana. M No. 9814712425

[2] AIR 1954 TRAV & CO 152

[3] AIR 1960 Punjab 430

[4] 1998(2) MAH LR 843(Bombay)

Almost all the rent Acts applicable in India provides more than one ground of ejectment. Thus where the landlord in the ejectment application has taken more than one ground of ejectment and if one of the ground has been found to be false then whether the ejectment application deserves dismissal, if other ground/grounds are proved to be genuine. Answer is No? Each case is to be decided on its own facts. The said point is covered under the maxim “falsus in uno, falsus in omnibus” meaning thereby false in one thing, false in everything.

The said maxim has no application in India and the witnesses cannot be branded as liars. The said maxim has neither received any acceptance nor has this maxim has become the rule of law. It only amounts to discarding of some part of the disposition and not that it must be discarded, as a whole.

CAN THE COURT SIFT THE DEPOSITION OF ANY WITNESS BY ACCEPTING A PART THEREOF, WHILE REJECTING THE OTHER PART:-

It has been held by the Hon’ble Supreme Court in the judgment reported as Ram Udagar Singh v. State of Bihar, (2004)10 Supreme Court Cases, 443, held as under:-

“In essence, prayer is to apply the principle of “falsus in uno, falsus in omnibus” (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of evidence is found to be deficient, in case the residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that the evidence has been found to be deficient to prove the guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim “falsus in uno, falsus in omnibus” has no application in India and the witnesses cannot be branded as liars. The maxim “falsus in uno, falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be discarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called “a mandatory rule of evidence.” The above said judgment was followed in another judgment of the Hon’ble Supreme Court in case titled as “Jaya Seelan v. State of Tamilnadu” Criminal Appeal No.456 of 2002 decided on 11.2.2009.

It is open to any court to sift the deposition of any witness and accept apart thereof, while rejecting the other part. Thus evidence of the witness cannot be disbelieved completely. It has been held in AIR 1998 (SC) 1978 in the case titled as “SGPC v. M.P. Dass Chella through Lrs. Here in this case it has been held that the appellant relies on the evidence that the Guru Granth Sahib is worshipped. That circumstance alone is not helpful to the appellant. It is contended by the appellant that the oral evidence of the witness examined by the respondent were disbelieved on some points by Yadav, J. and they ought to have been disbelieved completely. There is no substance in the contention. It is open to any court to sift the deposition of any witness and accept a part thereof while rejecting the other part.

The doctrine merely involves the weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called ‘a mandatory rule of evidence (Nisar Ali v. State of Uttar Pardesh AIR 1957 SC 366). In a given case, it is always open to a case to differentiate accused, who has been acquitted from those, who were convicted, where there are a number of accused persons. (Gurcharan Singh v. State of Punjab AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, truth in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respect the court considers the same to be insufficient for placing reliance on the testimony of witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness, whose evidence does not contain a grain of untruth or any rate exaggeration, embroideries or embellishment.

Thus an attempt has to be made in terms of felicitous metaphor, separate grain from chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up and in the process of separation and absolutely a new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made it to discard in toto.

The normal discrepancies in the evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so. The said aspects were highlighted in Krishan Mochi v. State of Bihar etc. (2002 (6) SCC 81) and in “Sucha Singh v. State of Punjab (2003 (7) SCC 643) and were further illuminated in Zahira H Sheikh v. State of Gujrat (2004 (4) SCC 158), and the above said judgment Ram Udgar Singh v. State of Bihar (Supra) Gorle S Naidu v. State of Andhra Pardesh (2003 (12) SCC 449), Gubbala Venygopalswamy v. State of Andhra Pardesh(2004 (10) SCC 120) and in Syed Ibrahim v. State of A.P. (2006 (10) SCC 601).

Where the witness of the landlord or the landlord has been disbelieved on the question of rate of rent would not be a ground to disbelieve the evidence of the witness and the landlord in its entirety. Thus where the landlord has been able to prove his bonafide requirement he should be granted the relief. Case titled as Prithi Chand v. Shanti Sarup, reported in 1996(1) PLR 285, which says that simply because the landlord was not believed on the ground of rate of rent or the ground of subletting, would not debar him from claiming the premises, when he required the same for his own use and occupation. As has been held in Kewal Krishan v. Smt.Bhagwati 1992(1) RCR 566, 2005 (2)RCR Rent 672 case titled as “Joginder Singh v. Varinder Kumar”

The said fact has also been held in another judgment in the case titled as M/s Sood Bros. v. Gurjeet Singh, 2006(2), RCR, page 678, which says that if the landlord is disbelieved regarding the rate of rent, it is no ground to disbelieve him on the ground of bona fide requirement.

The said Maxim/principle has also been equally applied in civil cases as well in the cases under the Representation of People Act, Kindly refer to the judgment titled as “Vatal Nagaraj v. Dayanand Sagar”, AIR, 1975 SC 349.

Where the oral evidence of the witnesses examined by the respondent were disbelieved on some points and thus they ought to have been disbelieved on the other grounds also. There has been no substance to have been found in the said plea. It is open to sift the deposition of any witnesses and accept a part thereof while rejecting the other part. Thus the evidence which has come on the record has to be scrutinized, even if some part of the evidence is sufficient to prove a particular ground, the same should be taken note of.

Similarly it has been held in the case titled as Iqbal Singh v. Mangat Ram reported in 1997(2), Rent Control reporter, page 189, in which it has been held that a false plea regarding arrears of rent has been taken by the landlord. Landlord claiming rent @ 50/- per month. Tenant proved that the rate of rent was Rs.10/- per month only. Contention of the tenant that no order of eviction could be passed against the tenant as land lord has taken a false plea regarding the rate of rent. Contention not tenable.

Where on the facts and circumstances of the case the claim settled by the landlord has been found to be false with regard to commencement of tendency, rate of rent and date from which the rent was payable, then the eviction petition is liable to be dismissed, because in that case the pleading of the landlord has been found to be false. The conduct of the petitioner/landlord also to be taken into consideration as he is telling one lie after the another and has been suppressing the truth from the court. The landlord/petitioner cannot be permitted to deprive the tenant of statutory protection by making vague, frivolous and false allegations. Thus the right to recover rent from the tenant is different from the right to save eviction under the provisions of the Act. Kindly refer to judgment titled as Harnam Singh v. Mohinder Singh, 1997 (2), Rent Control Reporter, page 200, in which it has been held that where the landlord was not entitled to eviction on the false pleadings as mentioned above. Also refer to judgments titled as ‘Mehar Chand v. Tilak Raj, 1982(84) PLR, 13; Mangat Rai v. D.D. Mehta, 1987(2)(92), PLR, 80; Faqir Chand v. Bhagwan Dass, 1994(3)(108), PLR, 129.

Can the landlord succeed in ejectment petition if he has taken false plea regarding his accommodation:- where the landlord has taken the false plea regarding his accommodation and sought eviction on the ground that he was living in one room only with his family comprising of his wife and three going sons and also pleaded that he has three sisters also who, though living separately, but used to visits and stay with him during their visits to his house and accommodation is quite in sufficient. On the contrary tenant proved that landlord was having in his possession five rooms on the ground floor and two on the first floor and so the accommodation already available with the landlord was sufficient for his family. In this case the tenant has proved that at the time of filing the eviction petition the landlord was having with him six rooms, including five rooms, which the landlord petitioner was claiming to have been constructed and the only conclusion has to be that the eviction proceedings were initiated on false plea of availability of one room only with the landlord and that fact itself was sufficient to disentitle him from getting any relief from the court and the courts have further held that revisional jurisdiction under the Rent Act invoked by the petitioner landlord is quite limited. The High Court is expected to interfere with the order of the rent controller only if it feels satisfied that the rent controller order under challenge was not in accordance with the law and its reasoning in the order passed by him was perverse. But in the present case the case of the petitioner landlord was based on false plea of his accommodation, which fact has been proved by the tenant, thus on the basis of the false pleading the ejectment of landlord rightly dismissed.

Can the rent controller proceed to determine the amount of rent, interest and costs in the absence of demand:-

If the landlord sought the eviction of the tenant/sub tenant and does not arrears of rent in the eviction petition from the tenant/sub tenant, who is claiming to be direct tenant, no ejectment order can be passed against such tenant on the ground of non-payment or tender of arrears of rent. In the absence of demand, Rent Controller did not proceed to determine the amount of interest and costs. The tenant was not bound to tender the amount of rent. Order of ejectment on the ground of short tender against the petitioner held not sustainable. “Ram Charan v. Bataku Ram through Lrs”. 1998 (2) RCR 656 1997 (3) PLR 857 (FB) followed in. Thus in view of the same the tenant is under no obligation to pay the rent and that too in the absence of demand, the rent controller did not proceed to determine the amount of interest and costs and the tenant is not bound to tender the rent. Further the order of ejectment on the ground of short tender against the petitioner is not sustainable.

Thus the landlord can take as many as grounds available to him to seek the eviction of the tenant from the demised property, even if one ground is not proved and is found to be false he can fall upon the other grounds if he has been able to prove the same except the peculiar set of cases mentioned above. He can seek the eviction of the tenant. Each ground is to be proved separately and independently, meaning thereby if the landlord has not been able to prove the grounds taken by him in the ejectment petition i.e. ground regarding sub-letting, rate of rent, change of user etc. it does not mean that the other grounds if proved by him independently are also false and that the eviction petition is to be dismissed in its entirety.