Dr. Abhinav Chandrachud
This paper traces the historical origins of
Historical Origins of Section 65(g)
In 1850, a legislative commission in the state of New York, headed by
“There can be no evidence of the contents of a writing, other than the writing itself, except in the following cases: … 5.
At the time, there was no comparable statutory rule in British India.
Soon, Sir James Fitzjames Stephen took over
“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: -
(g) when the originals consist of numerous accounts
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.”
Starkie and Peake on Evidence
There was no suggestion by either Stephen or the Select Committee that provisions from the New York Code were being lifted or borrowed.
In the early 19th
“Of the class of facts which require proof by means of indirect evidence, there are some of so peculiar a nature that juries cannot without other aid come to a direct conclusion on the subject. In such instances, where the inference requires the judgment of persons of peculiar skill and knowledge on the particular subject, the testimony of such as to their opinion and judgment upon the facts, is admissible evidence to enable the jury to come to a correct conclusion. Thus the relation between a particular injury inflicted on a man’s body and the death of that man, is an inference to be made by medical skill and experience, and may be proved by one who possesses those qualifications. So again, where the question is as to a general result from books or accounts of a voluminous nature, the general result from them may be proved by the testimony of one who has examined them.”27
Starkie also added:
“Although a witness cannot be examined as to the contents of a written document not produced, yet he may, in some instances, be examined as to the general result from a great number of documents too voluminous to be read in court.”28
The case of
The case of
Some hints that there was
It is puzzling why the Britons made no mention of Field’s Code in their public speeches and notes on the Evidence Act.
“In general, it has been our object to reproduce the English Law of Evidence with certain modifications, most of which have been suggested by the Commissioners, though with some this is not the case. The English Law of Evidence appears to us to be totally destitute of arrangement….we have discarded altogether the phraseology in which the English text-writers usually express themselves, and have attempted first to ascertain, and then to arrange in their natural order, the principles which underlie the numerous cases and fragmentary rules which they have collected together.” (emphasis supplied)
Stephen was clearly responsible for drafting the Evidence Act. Yet, he did not acknowledge using sources like Field’s 1850 Code. As he said to the Law Amendment Society in England in 1872-73:
“The Evidence Act, for which in its present shape I am in a great measure responsible, is founded on a draft prepared by the Indian Law Commissioners. It includes, I think, everything which was contained in that draft, but is considerably longer, and is arranged on a different principle.”37
The following words in the first report of the Select Committee, dated March
“We have not followed the precedent of the New York Code in laying down a long list of presumptions, agreeing with the Indian Law Commissioners in the opinion that it is better not to fetter the discretion of the Judges. We have, however, admitted one or two such presumptions to a place in the Code, as, in the absence of an express rule, the Judges might feel embarrassed.”42
Interestingly, Stephen was accused, even in his own time, of unoriginality and of borrowing extensively from English law treatises and from other statutes in British India.43
It appears that Field’s Code subsequently developed a poor reputation among
“Another source of unequal workmanship, and sometimes of positive error, is that the framers of the Indian Codes, and of the Contract Act in particular, were tempted to borrow a section here and a section there from the draft Civil Code of New York, an infliction which the sounder lawyers of that State have been happily successful so far in averting from its citizens. This code is in our opinion, and we believe in that of most competent lawyers who have examined it, about the worst piece of codification ever produced. It is constantly defective and inaccurate, both in apprehending the rules of law which it purports to define and in expressing the draftsman’s more or less satisfactory understanding of them…Whenever this Act is revised everything taken from Mr. Dudley Field’s code should be struck out, and the sections carefully recast after independent examination of the best authorities.”44
On the other hand,
“It was not long before the American Codes of Procedure were adopted in substance in Great Britain and the Colonies. A few years later (in 1874) Mr. Field went round the world, and found to his surprise his system of practice in use in the courts in India! He could hardly believe his eyes when he was confronted by the rules that he had prescribed, word for word as he had written them in his library in New York…”47
Interestingly, this passage suggests that when Field discovered the
The first principle
“In England the aim has been to avoid presenting to the consideration of the jury whatever it was thought could not safely be presented to an unprofessional tribunal. In order to obtain this end, various kinds of evidence, which were deemed little worthy of credit, were pronounced inadmissible, and a great deal of evidence which, if duly weighed and dispassionately considered, would tend to the elucidation of truth, is absolutely excluded. On the other hand, evidence is admitted which is at least as dangerous as that which is shut out….In a country like India, where the task of judicial investigation is attended with peculiar difficulties, and where it is the duty of the judge in all civil, and in some criminal cases, to decide without a jury, there is greater danger of miscarriage from the mind of the Court being uninformed than from its being unduly influenced by the information laid before it. It seems, therefore, better to afford every facility for the admission of truth although with some risk that falsehood or error may be mixed with it, than to narrow, with a view to the exclusion of falsehood, the channels by which truth is admitted.”49
The second principle
“[S]ome evidence must be excluded. If all evidence were admitted, nay, even if all relevant evidence were admitted, if everything were let in which tended to throw light on the matters in issue, the Courts would be overwhelmed. Even in England they would break down, and it would be quite impossible for the Courts to discharge their functions in this country with the notorious habit of its Natives of attempting to help on the proof by accumulating everything which has even the remotest bearing on it.”50
Sir James Stephen
“Secondary evidence may be given of the contents of a document in the following cases… (g) When the originals consist of numerous documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection: provided that the result is capable of being ascertained by calculation….
Thus, in Stephen’s subsequent draft,
Indian High Court Decisions
Since its enactment in 1872, only a handful of cases, mostly decided by the
“We are of opinion that S.
“In our opinion the
Courts have also been particularly keen to ensure that the
“He, therefore, does not answer the test laid down by Section 65 of the Act in that he had not examined the documents….The insistence by the Legislature on the presence in the witness-box of a person who has examined the documents or of someone “who is skilled in the examination of the documents” is intended to afford an opportunity to the opposite party to find out the truth by means of the cross-examination of such a witness.”63
The Calcutta High Court has held, however, that it is permissible for the summary under
“Mallick and Guha Roy themselves did not actually see each and every figure and each and every relevant entry of the numerous books and voucher files which were identified by Katela.
It has been held by the Bombay High Court that the person who has examined the documents and prepared the summary need not be the author of those documents.65
Incidentally, it may be noticed that there is a disconnect between
The historical development of
Rule 1006, U.S. Federal Rules of Evidence
“The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.”70
The Advisory Committee, responsible for drafting and enacting the rule,
The well-known U.S. treatise on the law of evidence,
“Where a fact could be ascertained only by
In short, the doctrinal development of Rule 1006 of the Federal Rules of Evidence in the U.S. has been largely similar to that of
The demise of the rule in England
It seems that the rule contained in
At the common law in
Secondary evidence of documents
The findings presented in this paper are interesting for several reasons.
Why is it that British legislators in colonial India relied on Field’s Code, but made no
However, the fact that principles of evidence law were
However, it cannot be said that