Vol. 12 · pages 556–560

535LAW OF EVIDENCE 4. For the Courts outside the Presidency Towns and not established by the Royal Charter no complete rules of Evidence were ever laid down or introduced by authority. Regulations made between 1793 and 1834 contained a few rules. Other were derived from a vague customary law of evidence partly drawn from the Hedya and Mohomeden Law Officers. Others were drawn from English text books. § Efforts towards Uniformity: 5. The first Act of the Governor General in Council which dealt with evidence, strictly called, was Act X of 1835 which applied to all the Courts in British India and dealt with the proof of the Acts of the Governer General in Council. This was followed by eleven enactments passed at intervals during the next twenty years, which effected various small amendments of the law of evidence and applied to the Courts in India several of the reforms in the law of Evidence made in England. In 1855, Act II of 1855 was passed for the further improvement of the law of evidence which contained many provisions applicable to all the Courts in British India. 6. Notwithstanding this attempt at uniformity there continued to be a great deal of disparity between the rules of Evidence applicable in the Presidency Towns and those applicable in the Muffassil. This disparity continued to be the subject of frequent judicial comment. To remedy this state of affairs, Act I of 1872 was passed. § Construction of the Act: 1. An Act may be (l) to consolidate or (2) to amend or (3) to consolidate and to amend or it may be to define i.e. to codify. The construction of an Act would differ according as it is a consolidating Act or a Codifying Act. 2. Construction of a Codifying Act : The rule of construction in regard to a Codifying Act is laid down in (1891) A. C. 107 (120). Bank of England vs. Vagliano. Lord Halsbury observed:

536 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES P.120. “I am wholly unable to adopt the view that where a statute is expressly said to Codify the law, you are at liberty to go outside the Code, so created, because before the existence of that code another law prevailed.” Lord Harschell observed: P. 144 “The proper cause is in the first instance to examine the language of the Statute and to ask what is its natural meaning, uninfluenced by the considerations derived from the previous state of the law and not to start with enquiring how the law previously stood and then assuming that it was probably intended to leave it unaltered, to see if the words will bear an interpretation in conformity with this view.” 3. The object of codification of a particular branch of the law is that, on any point specifically dealt with by it, such law should be sought for in the codified enactment, and is ascertained by interpreting the language used. 4. Construction of a Consolidating Act : The rule of Construction in regard to a Consolidating Act is laid down in (1894) 2 Ch. 557. Shitty J. (P. 561) observed after referring to the rule of construction laid down in Bank of England vs. Vagliano in regard to a codifying Act. in Lord Halsbury “. . . . . . . . . .But I have here to deal, not with an Act of Parliament codifying the law, but with an Act to amend and to consolidate the law and therefore it is I say these observations (of lord Halsbury) do not apply and I think it is legitimate in the interpretation of the section in this amending and consolidating Act to refer to the previous state of the law for the purpose of ascertaining the intention of the legislature.” 5. The object of consolidation with or without amendment is merely to assemble together the scattered parts of the Existing law. It is merely a re-enactment of the old law. It is not a new enactment of the law. Prima facie the same effect ought to be given to its provisions as was given to those of the Acts for which it was substituted.

537LAW OF EVIDENCE 6. The Indian Evidence Act is as stated in the Preamble an Act to Consolidate, define and amend the law of evidence. It is not a statute which merely consolidates and amends the evidence i.e. it codifies the law of evidence. Its constructions will be governed by the rule laid down in Bank of England vs. Vagliano and not by the rule laid down in it. § Scope and Extent of the Act 1. The scope of the Act is defined in Section 2. Under section 2 the law of evidence is contained: (i) In the Evidence Act and (ii) In other Acts or statutes which make specific provision on matters of evidence and which are not expressly repealed. This Section in effect prohibits the employment of any kind of evidence not contained in the Act or any other statute or Regulation not expressly repealed. Section 2:—The following laws shall be repealed. (1) All rules of Evidence not contained in any Statute Act or Regulation in force. (2) All such rules contained in Regulation as have acquired the force of law under Section 25 of the Indian Councils Act, 1861. (3) Enactments mentioned in the Schedule. 2. The Evidence Act and other Acts relating to Evidence— (1) The Evidence Act is a separate statute dealing with an important branch of law and its provisions are independent of the rules of procedure contained in the Criminal Procedure Code and must have full scope unless it is clearly proved that they have been repealed or altered by another statute. 7 Lah. 84. § Application of the Act Section 1 prescribes the application of the Act (1) Territorial Application It extends to the whole of British India and therefore applies to the Scheduled Districts.

538 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES It extends to places where it has been declared to be in force. (2) Application to Tribunals It applies to all judicial proceedings in or before any Court. (i) WHAT IS MEANT BY A JUDICIAL PROCEEDINGS? There is no definition. An inquiry is judicial if the object of it is to determine a jural relation between one person and another or a group of persons or between him and the Community generally ; but even a Judge acting without such an object in view is not acting judicially. 12 Bom. 10 M. I. A. 340. An inquiry under section 32 of the Bombay Land Revenue Code is not a Judicial proceeding. 22 Bom. 936. 2. The Act applies to all judicial proceedings i.e. to civil as well as criminal. 3. The Act speaks of proceedings not merely suits and trials. Proceedings is a wider term. Inquiry under Section 107 or 144 of the Criminal Procedure Code is not a trial but is a proceeding. Similarly execution of a decree is not a suit but is a proceeding. Consequently the Act applies to proceeds other than trials and suits. (ii) What is a Court 1. Section 3 which is an interpretation clause speaks of the sense in which the word Court is used in the Act. According to this Section— “Court includes all Judges and Magistrates, and all persons, except Arbitrators, legally authorised to take evidence.” 2. This Section does not define what is a Court. It merely says what is to be included in the meaning of the word Court i.e. what functionaries are to be treated as a Court. 3. Where in an interpretation clause it is stated a term includes this and that, the meaning is that the term retains its ordinary

539LAW OF EVIDENCE meaning and the clause enlarges the meaning of the term and makes it include matters which the oridnary meaning would not include. 23 A. L. J. 845. 4. The Court means all persons except Arbitrators who are legally authorised to take evidence. That being so the word Court is not to be confined to persons presiding over a Civil tribunal or a Criminal tribunal. A Registrar holding an enquiry and taking evidence under the Registration Act is a Court. 15 Mad. 138. A Commissioner appointed under order XXVI R. 1-10 of the Civil Procedure Code and under Section 503-508 of the Criminal Procedure Code is a person legally entitled to take evidence and as such he is a court. 5. Judges. No definition of the word “Judges” is given in this Act. Section 2 (8) of the Civil Procedure Code defines the word ‘Judge’ to mean the presiding officer of a Civil Court. Section 19 of the Indian Penal Code, also gives definition of the word Judge. According to this definition a Judge is a person designated as a Judge also a person who is empowered by law to give, in any legal proceeding, civil or criminal a definitive judgment. 6. Magistrates. No definition of this term is given in the Act. The General Clauses Act (X of 1897) lays down the following definition of the term:— Magistrate shall include every person exercising all or any of the powers of a Magistrate under the Code of Criminal Procedure for the time being in force. 7. The peculiarities of these definitions is that they are neither uniform nor are they co-extensive. (i) The basis of the definition of Judge in the Civil Procedure Code is the presidency of the officer.