Applicability of Evidence Act

Applicability
Section-1
 This Act may be called the Indian Evidence Act,
1872.
 It extend to the whole of India except the state
of Jammu and Kashmir and applies to all judicial
proceedings in or before any court including
court martial, other than court martial convened
under the Army Act, The Naval discipline Act, or
the Indian Navy Act, 1934 or the Air force Act,
but not to affidavits presented to any court or
officer, nor to the proceedings before an
arbitrator;
It shall came into force
on 1st September, 1872
Applicability to territory of
India
 Territory Includes not only land but :
 Inland water
 Belt of coastal sea
 Territorial sea up to a distance of 12 nautical miles
 Aerospace
 Territories acquired:
 Goa, Diu, Daman
 Voluntary merger of Sikkim with India
 By exchange (cession)
Applicability to Judicial
proceedings
 The term is not defined anywhere in the Act.
 Three test are there for determination whether
a proceeding is judicial or not. These test to be
applied cumulatively in determination of the
nature of proceeding:
1. Objective test ( to determine jural relation)
2. Functional test (Section 2, clause (i) of Cr.P.C, body
conducting proceeding is authorized by law to
receive evidence and decide on those basis)
Contd..
3. Approach or process test: whether decision
making process involves application of judicial
mind and discretion. This test distinguishes
judicial proceeding from an enquiry held by
administrative authority. Fact finding and
enquiry commissions come under this category.
Although they follow principle of natural justice
(issuing notice, hearing parties, summoning
documents etc.) but proceedings before them
are strictly not judicial proceedings.
Following proceedings are not judicial
proceedings:
1. Departmental proceedings: (against employees in

disciplinary matters, e.g., disciplinary proceedings
under Article 311 of Indian Constitution).
Commissioner of Police, Delhi v. Narinder Singh, AIR
2006 SC 1800, it was held that a confession made to
police officer would be admissible to departmental
proceedings as S.25 of the Evidence act is not
applicable to such proceedings.
Contd..
2. Proceedings before Labour court or Industrial
tribunal under the Industrial Disputes Act, 1947:
Shankar Chakarvarthi v. Britannia Biscuits, SC held

that labour court or tribunal has to decide lis
between the parties on the evidence adduce before
it. While it may not be hide bound by the rules
prescribed in the evidence act it is nonetheless a
quasi-judicial tribunal proceedings. Justice, equity
and good conscience will infirm its adjudication
Contd…
3. Commissions of enquiry: Section 4 of the
Commissions of Enquiry Act, 1952 provides that
commission shall have powers of civil court
(summoning, discovering, production, receiving
evidence on affidavits, requisition of public
record etc.) under CPC, while trying a suit but
those proceedings are not judicial in nature.
Contd..
 In Dr. Subramanian Swamy v. Arun Shourie. AIR 2014 SC
3020, an issue was raised that whether when a sitting SC
judge is appointed as a commissioner by the central
government under act of 1952, does he carry with him all
the powers and the jurisdiction of the SC?
 SC held that sitting judge does not carry with him the
status of Apex court, as he exercise only the statutory
function under the 1952 act and has powers of civil court
for a limited purpose.
Contd….
 Proceedings before the commission can
be held judicial proceedings with in the
meaning of section 193 and 228 of IPC
but making an enquiry and determination
of the facts by the commission is not
judicial in nature under 1952 Act.
 On the other hand some proceedings relating to election
offences under the Representation of People Act 1951
can be considered as judicial proceedings, as they are
quasi- criminal in nature and the provisions of evidence
act are made applicable to the proceedings.
 Jagdev Singh v. Pratap Singh AIR 1965 SC 183, SC

obsereved that the petitioner in an election petition has to
prove the election offence beyond all reasonable proof
and not merely on the basis of preponderance of
probabilities.
Applicability to Courts
 Includes judges, Magistrates and all
persons, legally authorized to take
evidence.
 Except arbitrators.
Applicability to Arbitration
proceedings
 Section 1 clearly provides that act is not
applicable on arbitration proceedings.
 It does not make any distinction between
statutory arbitration (Section 10 of the
Industrial dispute Act) and private
arbitration ( Arbitration and conciliation
Act).
Contd…
 The Arbitration and conciliation Act
gives total autonomy to the parties
to agree on procedure to be
followed by tribunal, and as well as
power to tribunal to determine
admissibility, relevance, materiality
and weight of any evidence.
Section 89 CPC on Arbitration
 S.89 CPC provide settlement of dispute by
arbitration by reference of court, and says that
arbitration proceedings under this section
deemed to be arbitration proceedings under the
Arbitration and conciliation Act,1996.
 Hence arbitration proceedings under S.89 CPC
are also not governed by the Evidence Act.
Applicability to Courts Martial
 Apply to courts martial.
 other than court martial convened under
the Army Act, The Naval discipline Act,
or the Indian Navy Act, 1934 or the Air
force Act, (these are the Acts estalished
under United Kingdom and those acts
are not governed by this Act).
 Army Act 1950, the Indian Navy Act
1957, the Air force Act 1950 are
Indian counterparts of those Acts
and the Evidence Act applies to
courts martial set up under these
Acts.
Applicability to Affidavits
 Affidavit is a sworn statement made by a
person as to the truth of the facts within
his knowledge mentioned therein.
 Section 3 of General Clauses Act,1897
states that affidavit shall include
affirmation and declaration in the case of
person by law allowed to affirm and
declare instead of swearing.
CPC
 Order XIX rule 1,2,3, 4 of CPC and
section 297 of CrPC regulate operation of
affidavits.
 Order XVIII rule 4 as amended in 2002
requires that in every case examination
in chief shall be given by affidavit and
cross examination and re examination by
oral evidence recorded by court or
commissioner appointed for the same.
Cr.P.C
 Evidence of formal character on affidavit.
 Court can summon and examine any such
formal witness as to facts contained in affidavit.
Supreme court rules 2013
 On reasonable and just conditions
court can order that any fact may
be prove by affidavit.
 But court may order the cross
examination of the person on the
application made by parties.
Evidence Act
 S.3 of the Evidence Act oral evidence is defined
as statements made by witnesses in court of law
and affidavits are not the statements made by
witnesses in a court of law, the affidavits were
held to be not evidence.
 Rita Pandit v. Atul Pandit, AIR 2005 AP 253
 FDC Ltd v. Federation of Medical
Representatives of India, AIR 2003 Bom 371.
 Section 1 of the Evidence Act expressly
excludes the affidavits from its purview
and provides that the Act does not
extend to affidavits presented to any
court.
 Sheoraj v. A.P. Batra, 1955 CrLJ 1451
Generally in practice the courts in applications
for transfer of civil case, stay of execution or for
extension of time under section 5 of the
Limitation Act requires an affidavit in proof of
the point asserted. So even though the Evidence
Act categorically does not apply to affidavit,
proving a fact by an affidavit is not barred.

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Applicability

1. Departmental proceedings: (against employees in

Shankar Chakarvarthi v. Britannia Biscuits, SC held

 Jagdev Singh v. Pratap Singh AIR 1965 SC 183, SC

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