Selected Interesting Sections from the Evidence Act 1872
Aiman R. Khan:
The Evidence Act 1872 provides all the necessary information regarding admissibility of evidence in the court. The draft of the Evidence Act was created in 1850 by Sir Henry Summer Maine but it was unworkable in the then British Raj India. What we see today, is the brainchild of Sir James Fitzjames Stephen whose relentless efforts gave birth to the Evidence Act on 1st September 1872.
The Evidence Act 1872 is divided into three parts, 11 chapters and constitutes of 167 sections. It is a procedural law which plays an important role in deciding civil and criminal cases in the present day Bangladesh.Much of the Act talks about thatevidence which are relevant and those which are not. Below are 10 provisions of the Act which you may find interesting.
- Section 11: Irrelevant Facts are Relevant!
According to this section, any irrelevant fact may become relevant if they are inconsistent with any fact in issue or relevant fact; or if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
- Section 25 and 26:
A police officer cannot prove it against you if you confess in front of him. But you also cannot confess in front of a police officer while in custody! According to s.25, if the accused confesses to the police officer, the recipient of the information cannot use it to prove against the person. However in s.26, an accused cannot confess to a police officer while in custody unless there is a magistrate present in the scene.
- Section 32: Truth sits upon the lips of a dying man.
Although s.32 makes evidence given by a dead or missing person or anyone incapable of giving evidence relevant, s.60 is on the contrary. According to s.60, oral evidence must be direct. If the oral evidence refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; or if it is something that could be heard, it must be of a witness who heard it. The oral account of a dead person interpreted by another person clearly does not comply with the rules laid down in s.60.
- Section 40: Dé·jà vu
We all have heard about Res Judicata under section 11 of the Code of Civil Procedure 1908 (CPC) or Double Jeopardy under s.403 of the Code of Criminal Procedure 1898 (CrPC). Both of these Acts suggests Person once convicted or acquitted not to be tried for same offence. S.40 of the Evidence Act 1872 does the same regarding putting a bar on a consecutive trial on the same issue. Here the present of a past decision is a relevant evidence to prevent a new case to be tried.
- Section 53 and 54: Good Boy, Bad Boy
Section 53 states that in criminal cases, the previous good character of the accused is relevant evidence. While s.54 states that in criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.
- Section 74: What’s private is what’s public
Any document created by a government officer is treated as a public document. Section 74 states that a private document can become a public one if it is recorded by a public officer by the ordinary course of his duty. Therefore even a sales contract ora plaint and written statement can become a public document if it has been submitted to the court and kept in government records.According to this section, even Khatians, statements made under s.164 of CrPC is also a public document.
- Section 112: Dad, I am your Son.
The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
- Section 119: When Witness becomes Speechless
A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.
- Section 122: Encryption does exist!
No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married: nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.
- Section 81: In Media, we believe! (Omitted)
This section which still in action in the Indian Evidence Act used to presume the genuineness of Newspapers. However, in Bangladesh, such a provision has been omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision and Declaration) Act, 1973 (Act No. VIII of 1973). Nowadays newspaper articles can be written by anyone and its contents are not necessarily accurate. If it was still in force, much injustice would have arisen.
Evidence Act 1872 is one of the major laws of Bangladesh. It is almost unaltered and still remains in use in all cases. Although many of its provisions were written to suit the colonial era, not much is needed to be changed. The Evidence Act works as an aid to the other important acts and ensures equal opportunities for both parties to a case.
The writer is an Advocate at Dhaka judge court & accredited mediator
