Vol. 12 · pages 651–655

630 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 2. Distinction must be drawn between rule having the force of law and custom which is the source of Law. A large part of Hindu Law is based on custom. But the Court will not take judicial notice of a custom. The party who relies on a custom must prove the existence of the custom. When the party has proved the existence of the custom the Court will give effect to it only if it comes to the conclusion that it is a valid custom. 3. It is true that there are some customs for the proof of which the Court does not require Evidence. But that is not because the Court is bound to take judicial notice. The Court does not require formal proof because by the rule of precedent, the Court is bound to uphold a custom, the existence and validity of which has been recognised in an earlier decision by a Court to which it is Subordinate. (ii) STATUTES. The statutes passed by Parliament are either general or special. A General Statute is universal in its application and extends to all persons and to all territories. A Special Statute is either local or personal and operates upon particular persons and private concerns. 2. All Acts of Parliament are to be presumed to be public unless the contrary be declared therein - Section 13 of 14 Vict. c. 21. 3. Judicial notice must be taken of all public Acts. Court is not bound to take judicial notice of a Private Act unless the particular Private Act contains a direction to the Court to take judicial notice. If it does not contain such a direction, the parry must prove that a Private Act relied upon is an Act of Parliament. (iii) INDIAN ARTICLES OF WAR. These are rules of discipline for Native Officers, soldiers and other persons in His Majesty’s Indian Army. They are contained in the Indian Army Act of 1911. (iv) COURSE OF PROCEEDINGS OF PARLIAMENT AND COUNCIL. 1. Course of Proceedings must be distinguished from proceedings themselves.

631LAW OF EVIDENCE 2. The Court will take judicial notice of the course of proceedings and not of the proceedings. Foreign State Court will take judicial notice whether a foreign State is recognised or not by His Majesty or by the Governor-General in Council. State of War The existence of a State of War between foreign States will not be taken judicial notice of. Rules of the Road on Land or Sea Effect of the last para. 1. Court can refuse to take judicial notice under certain circumstances of matters of which they are bound to take judicial notice. 2. Party is bound to produce the necessary material to enable the Court to take judicial notice. Illus. Gazette must be produced if the party wishes the Court to take judicial notice of a Proclamation. Mode of Proof 1. The general rule regarding mode of proof may be stated thus: The law requires evidence to be given by a person— (i) Who is present in the Court. (ii) Who is legally competent as a witness. (iii) Upon oath or affirmation. (iv) In regular course of Examination. (v) Subject to contradiction as to facts. (vi) Subject to discredit as to veracity.

632 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES I. PRESENCE IN COURT. 1. It is a duty of the citizens to appear and testify to such facts within their knowledge as may be necessary to the due administration of justice. It is a duty which has been recognised and enforced by the Common Law from an early period. 2. The right to compel the attendance of witnesses was incidental to the jurisdiction of the Common Law Court, and the statutes have conferred this power upon other officers such as Arbitrators. Every Court having power definitely to hear and determine any suit, has by the Common Law, inherent power to call for all adequate proof of the facts in controversy and to that end, to summon and compel the attendance of witnesses before it. 3. The wilful neglect to attend and to testify after proper and reasonable service of the subpoena and in civil cases, after payment or tender of the witnesses fee of waiver of payment is a contempt of Court. 4. The process to compel attendance of witnesses to give testimony or to produce documents is not provided for in the Evidence Act. It is provided for in the Civil and Criminal Procedure Codes. 5. The following matters are in the Country provided for by the Civil and Criminal Procedure Codes. (i) Summoning of witnesses : Civil Pro. C. O. XII Cr. Proc. C. 68-74 (Summons) 90-93 (Other rules regarding Process) 328 (Summons on Juror or Assessor) 244 (Issue of Process in Summons Cases) 254 ( ,, ,, Warrant cases) 256 ( ) 257 ( ) 540 (Power to summons material witness on Examine person present.) (ii) Production of documents and other things : Civil P.C. O. XI, XVI. Cr. P. C. 94, 95 (Summons to produce documents or other thing) 96-99 (Search warrants) 485 (Consequences of refusal to produce)

633LAW OF EVIDENCE (iii) Expenses of the witnesses: Civil P. C. O. XVI. R. 2-4 Cr. P.C. 244, 257. (iv) The freedom of complainants and witnesses in criminal cases from police restraints. Cr. P. C. 171. (v) Recognizance for the attendance of complainants and witnesses in Criminal proceedings. Cr. P.C. 217, 170. NOTE.—Not provided for in Civil cases. (vi) Exemption of witnesses from arrest under Civil process. Civil Pro. Code S. 135 NOTE.—There is no protection given against Criminal process. 6. Not only is there provision for summoning a witness, there are provisions for compelling his attendance. (1) Non-attendance in obedience to a Summons is made an offence by Section 174, 175,I. P. C. (2) Non-attendance in obedience to a summons may be followed by Warrant of arrests under Sections 75-86 and by Proclamation and Attachment under Sections 87 89 of the Cr. P. C. (3) Non-attendance may further render a witness liable to a Civil action for damages under Section 26 of Act XIX of 1853 (in force in Bengal) and under Section 10 of Act X of 1855 (in force in Bombay and Madras). 24 W. R. 72. 7. Although the law requires persons summoned as witnesses to attend in person, the law also excuses non-attendance in certain cases. (i) By reason of non-residence within certain limits. Civil P. C. O. XVI R. 19. (ii) By reason of the witness being a purdanashin lady. Civil P. C. Section 132. (iii) By reason of the witness being a person of Rank. Civil P. C. Section 133. § The witness must be competent to give evidence 1. The question of competency of a person may be considered from two points of view (1) From the point of view of his intellectual capacity (2) From the standpoint of his veracity.

634 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES I. COMPETENCY FROM THE STANDPOINT OF INTELLECTUAL CAPACITY. 1. Section 118 deals with the question of competency from the standpoint of intellectual capacity. 2. The rule enacted in Section 118 is a rule which recognises the power of understanding as the only test of competency. 3. As every normal person has the intellectual capacity to understand things and to grasp their importance, Section 118 declares that all persons are competent to testify unless they suffer from want of understanding. 4. The law of competency is therefore practically the law of incompetency. A person is a competent witness who is not incompetent. 5. Incompetency therefore means want of understanding. This want of understanding may arise from (i) Tender years. (ii) Extreme old age. (iii) Disease whether of body or mind. (iv) Any other cause of the same kind. 6. Comment. (i) Tender year or (ii) Extreme old age — is not defined. A boy of 7 may not be incompetent but 12 may be, if the former has an understanding which the latter has not. A man of 60 may be incompetent and a man of 80 may not be. The test is not the age. The test is the Existence or nonExistence of understanding. (iii) Disease of the body A witness may be in such extreme pain as to be unable to understand or if able to understand to answer questions. He may be unconscious, as if in a fainting fit, catalepsy or the like. Here again it is a question of fact whether in any particular case the disease of the body is such as to deprive a person of his power of understanding.