[Act 2 of 1855] [2nd February, 1855] Repealed
by Act 1 of 1872 Passed by the Legislative Council of India. (Received the assent of the Governor-General
on the 2nd February 1855). An Act for the further improvement of the Law of
Evidence. Whereas it is
expedient further to improve the Law of Evidence; It is enacted as follows: Act No.
X of 1835 is hereby repealed. Within
the territories in the possession and under the Government of the East India
Company, all Courts of Justice, and all persons having by law or consent of
parties authority to take evidence, shall take judicial notice of all
Regulations and Ordinances made before or on the 22nd day of
April 1834 by the Governor-General in Council of the Presidency of Fort William
in Bengal, by the Governor in Council of the Presidency of Fort St. George, or
by the Governor in Council of the Presidency of Bombay, and having the force of
Law in any part of the said territories, and of all Laws and Regulations
heretofore made by the Governor-General of India in Council, and of this Act,
and of all Acts and Regulations heretofore made, or hereafter to be made by the
Governor General of India in Council, constituted for the purpose of making
Laws and Regulations, whether the same be of a public or of a private nature. All
Courts and persons aforesaid shall take judicial notice of all public Acts of
Parliament and of all local and personal Acts declared by Parliament to be
public and to be judicially noticed, and shall admit as prim Every
Court shall take judicial notice of its own Members and Officers respectively,
and of their deputies and subordinate Officers or Assistants, and also of all
Officers acting in execution of its process, and of all Advocates, Attornies,
Proctors, Vakeels, Pleaders, and other persons authorized by Law to act before
it. All
Courts and persons aforesaid shall take judicial notice of the names, titles,
and authorities of the persons filling for the time being any one of the
following offices in any part of the said territories: All
such Courts and persons aforesaid shall take judicial notice of all divisions
of time, of the geographical divisions of the world, of the territories under
the dominion of the British Crown, of the commencement, continuation, and
termination of hostilities between the British Crown and any other State, and
also of the existence, title, and national flag of every Sovereign or State
recognized by the British Crown. In all the above cases, such Court or person
may resort for its aid to appropriate books or documents of reference. Any
Government Gazette of any Country, Colony, or Dependency under the dominion of
the British Crown, may be proved by the bare production thereof before any of
the Courts persons aforesaid. All
Proclamations, Acts of State, whether Legislative or Executive, nominations,
appointments, and other official communications of the Government appearing in
any such Gazette, may be proved by the production of such Gazette, and shall
be prim Any
recital contained in any Act of the Governor-General of India in Council,
constituted for the purpose of making Laws and Regulations, hereafter to be
passed, of any fact of a public nature, shall be deemed, before all such Courts
and persons, to be prim The
Gazette or Newspaper containing any advertisement purporting to be published by
virtue of any public Statute, Act, Regulation, or Ordinance, or of any Rule or
Order of a Court of Justice or of any Board or Officer of Revenue, may be
received by any such Courts or persons as afore said as prim All
Courts and persons aforesaid may, on matters of public History, Literature,
Science, or Art, refer, for the purposes of evidence, to such published Books,
Maps, or Charts as such Courts or persons shall consider to be of authority on
the subject to which they relate. Books
printed or published under the authority of the Government of a Foreign Country
and purporting to contain the Statutes, Code, or other written Law of such
Country, and also printed and published Books of reports of decisions of the
Courts of such country, and Books proved to be commonly admitted in such Courts
as evidence of the Law of such Country, shall be admissible before any such
Courts or persons as aforesaid as evidence of the Law of such Foreign Country. All
Maps made under the authority of Government or of any public municipal body,
and not made for the purpose of any litigated question shall prim The
following persons only shall be incompetent to testify. 1.
Children. 2.
Insane
persons. and Not to be summoned without leave of Court. Any
person who, by reason of immature age or want of religious belief, or who, by
reason of defect of religious belief, ought not, in the opinion of such Court
or person, to be admitted to give evidence on oath or solemn affirmation, shall
be admitted to give evidence on a simple affirmation, declaring that he will
speak the truth, the whole truth, and nothing but the truth. The
provisions in the last preceding Section as to witnesses shall apply to
testimony given by affidavit or otherwise writing as well as to testimony
orally delivered. Any
such witness wilfully giving false evidence shall be subject to be proceeded
against in like manner, and to suffer, if convicted, the same punishment as if
he had been sworn and had committed wilful and corrupt perjury. The indictment
or charge shall be varied so as to meet the case. No
person shall, by reason of any interest in the result of any suit or of any
interest connected therewith, or by reason of relationship to any of the
parties thereto, be incompetent to give evidence in such suit. Any
party to a civil suit or other proceeding of a civil nature shall be competent
and may be compelled to give evidence as a witness therein either on his own
behalf or on behalf of any other party to the suit or proceeding, and also to
produce any document in his possession or power, in the same manner as if he
were not a party to the suit or proceeding. Proviso. A
husband or wife shall in every civil proceeding be competent to give evidence
for or against each other. Proviso. A
witness, whether a party or not, shall not be bound to produce any document
relating to affairs of State, the production of which would be contrary to good
policy, nor any document held by him for any other person who would not be
bound to produce it if in his own possession. A
witness being a party to the suit shall not be bound to produce any document in
his possession or power which is not relevant or material to the case of the
party requiring its production, nor any confidential writing or cor-respondence
which may have passed between him and any legal professional adviser. Unless
be offers himself as a witness. Every
witness summoned to produce a document shall, if the same be in his custody,
possession, or power, be bound to bring it, or cause it to be brought into
Court; although there be a valid objection to the right of the party calling
for it to compel its production or to the reading or putting it in as evidence,
or to the disclosure of the contents thereof, the validity of any such
objection made by the person producing the document shall be determined by the
Court; and for the better determination thereof, it shall be lawful for the
Court to receive any admissible evidence which the person producing the
document may give respecting it, and it shall also be lawful for the Court,
except in the case of any document relating to affairs of State, to inspect the
document, and, if necessary, to call to its assistance any person whom it may
appoint to interpret the same. Document
relating to affairs of State. A
Barrister, Attorney, or Vakeel shall not, without the consent or his client,
disclose any communication made by the client to him in the course of his
professional employment, nor any advice given by him professionally to his
client, nor the contents of any document of his client, the knowledge of which
he shall have acquired in the course of his professional employment. The
privilege, however, is that of the client, and if any party to a suit shall
give evidence therein, at his own instance, he shall be deemed thereby to have
waived his privilege, and to have consented to the disclosure by such
Barrister, Attorney, or Vakeel, of any matter as aforesaid, which may be
relevant, and which, the Barrister, Attorney, or Vakeel would have been bound
to disclose but for the privilege of his client; and the Barrister, Attorney,
or Vakeel shall be bound upon examination to disclose any such matter. Any
person present in Court, whether a party or not, may be called upon and
compelled by the Court to give evidence, and produce any document then and
there in his actual possession, or in his power, in the same manner and subject
to the same rules as if he had been summoned to attend and give evidence, or to
produce such document, and may be punished in like manner for any refusal to
obey the order of the Court. Any
person, whether a party to the suit or not, may be summoned to produce a
document without being summoned to give evidence, and any person summoned
merely to produce a document, shall be deemed to have complied with the
summons, if he cause such document to be produced instead of attending
personally to produce the same. The
Rules of evidence in Her Majesty's Supreme Courts as to matters of
Ecclesiastical or Admiralty Civil Jurisdiction, shall be the same as they are
on the Plea side of the said Courts. Except
in cases of treason, the direct evidence of one witness who is entitled to full
credit, shall be sufficient for proof of any fact in any such Court or before
any such person. Proviso. Where
dying declarations are evidence, they shall be received if it be proved that
the deceased was at the time of making the declaration, and then thought
himself to be in danger of approaching death, though he entertained at the time
of making it hope of recovery. The
party at whose instance a witness is examined may, with the permission of such
Court or person, cross-examine such witness to test his veracity, in the same
manner as if he had not been called at his instance, and may be allowed to show
that the witness has varied from a previous statement made by him. In
order to corroborate the testimony of a witness, any former statement made by
such witness, relating to the same fact, at or about the time when the fact
took place, or before any authority legally competent to investigate the fact,
shall be admissible, and for that purpose a copy of any deposition or statement
taken before any Court, Judge, Justice of the Peace, Magistrate or person
lawfully exercising the powers of a Magistrate, or before a Commissioner or
Superintendent for the Suppression of Thuggee or Dacoity in the discharge of
his duty, shall, if certified by such Court, Judge, or other Officer
above-mentioned, under his hand or the Official Seal of the Court, or under the
hand or Official Seal of such Judge, to be a true copy of such deposition or
statement, without further proof, be received as prim A
witness shall not be excused from answering any question relevant to the matter
in issue in any suit or in any Civil or Criminal proceeding, upon the ground
that the answer to such question will criminate, or may tend, directly or
indirectly, to criminate such witness, or that it will expose, or tend,
directly or indirectly, to expose such witness to a penalty or forfeiture of
any kind. Proviso. A
witness in any cause may be questioned as to whether he has been convicted of
any felony or misdemeanor, and upon being so questioned, if he either denies
the fact or refuses to answer, it shall be lawful for the opposite party to
prove such conviction. A
witness may be cross-examined as to previous statements made by him in writing,
or reduced into writing, relative to the subject matter of the cause, without
such writing being shown to him; but if it is intended to contradict such
witness by the writing, his attention must, before such contradictory proof can
be given, be called to those parts of the writing which are to be used for the
purpose of so contradicting him. Proviso. An
impression of a document made by a copying machine shall be taken without
further proof to be a correct copy. When an
original document is out of the reach of the process of the Court, it snail be
lawful for the Court, on application to it in any Civil suit or proceeding, and
on notice to the opposite party at a reasonable time before the hearing, to
make an order for the reception of secondary evidence of its execution and
contents. An
attested document may be proved as if unattested, unless it be a document to
the validity of which attestation is requisite. The
admission of a party to an attested instrument of its execution by himself
shall be as against him sufficient prim Any
entry or statement, which would be admissible in evidence-after the death of
the person who made it, on the ground of its having been made against the
interest of the person making it, or on the ground of its having been made in
the ordinary course of business, shall be admissible, though the person who
made it be not dead, if he is incapable of giving evidence by reason of his
subsequent loss of understanding, or is at the time of the trial or
hearing bon Any
entry in any books proved to have been regularly kept in the course of business
or in any public office, so far as such entry merely refers to and tends to
identify by name, description, number, or otherwise any Bank Notes or other
Securities for the payment of money, or other property, and the payer-in or
receiver of them, shall, in any case where such identification is necessary to
be proved, be admissible in evidence for that limited purpose if it shall appear
to have been made at or about the time of the transaction to which it relates,
though the person who made it, or he on whose information it was made, is alive
and capable of being produced as a witness. Any
receipt in writing, acknowledging the receipt of any money, valuable
securities, or goods, shall, on proof of the execution thereof, be admissible
in evidence before such Court or person aforesaid, not only against the party
giving it, but also against any person in whose favor such receipt would
operate as a discharge, or to whom it would render the person giving it liable
for the money, security, or goods acknowledged to have been received. Whenever
a receipt would be admissible under the preceding Section if given by a
principal, a receipt given by an agent or servant of such principal shall in
like manner be evidence upon proof of the authority to give such receipt. Books
proved to have been regularly kept in the course of business or any public
office, shall be admissible as corroborative, but not as independent proof of
the facts stated therein. The
following documents may he admitted as corroborative evidence: A
witness shall be allowed before any such Court or person aforesaid to refresh
his memory by any writing made by himself or by any other person at the time
when the fact occurred, or immediately afterwards, or at any other time when
the fact was fresh in his memory, and he knew that the same was correctly
stated in the writing. In such case the writing shall be produced and may be
seen by the adverse party, who may, if he choose, cross-examine the witness
upon it. Whenever
a witness may refresh his memory by reference to any document, he may, with the
permission of the Court, refer to a copy of such document, provided the Court
or person, under the circumstances, be satisfied that there is sufficient
reason for the non-production of the original. In
cases of pedigree, the declarations of illegitimate members of the family, and
also persons who, though not related by blood or marriage to the family, were
intimately acquainted with its members and state, shall be admissible in
evidence after the death of the declarant, in the same manner and to the same
extent as those of deceased members of the family. On an
inquiry whether a signature, writing, or seal is genuine, any undisputed
signature, writing, or seal of the party, whose signature, writing, or seal is
under dispute, may be compared with the disputed one, though such signature,
writing, or seal be on an instrument which is not evidence in the cause. Any
Power of Attorney, which has been executed at a place distant more than one
hundred miles from the place wherein the action, suit, or proceeding is
depending, may be proved by the production of it, without further proof, where
it purports, on the face of it, to have been executed before, and authenticated
by a Notary Public, or any Court, Judge, Consul, or Magistrate. Whenever
it is proved that a Letter Book is kept, and that, according to the usual
course of business, letters are copied into such book and despatched, and the
Letter Book is produced, and it is proved that the letter was despatched
according to the usual practice, to the best of the knowledge and belief of the
witness, having reasonable ground for forming that belief, the Court may
presume the despatch of that letter according to the usual course of business. Any
book proved to have been kept for marking the despatch and receipt of letters,
containing an entry of the despatch of a letter, and an acknowledgment of the
receipt of such letter, shall, on proof that such entry was made in the usual
course of business, be prim So much
of Section VI of Act XY of 1852 as provides that every such application as
therein mentioned shall be made before issue joined in any such action, or
twenty-one days before the trial or hearing of any other legal proceeding as
therein mentioned, hereby repealed. The
provision contained in the 16th Section of Act VI of 1854, that
affidavits of particular witnesses, or affidavits as to particular facts or
circumstances, may, by consent of the parties, or by leave of the Court
obtained upon notice, be used in the hearing of any cause on the Equity side of
the Supreme Courts, shall extend to all civil actions, suits, and proceedings
on all sides of the Courts. So much
of the 17th Section of the same Act as provides that upon the
hearing of any motion, petition, or other proceeding in any of the said Supreme
Courts, the Court may upon the application of any of the parties thereto, or of
its own accord, require and enforce the attendance and oral examination before
itself of any witness or of any party to the suit, and may also require and
enforce the production of any document or documents, and may direct the costs
of the attendance and examination of such witness or party to be paid by such
of the parties to the suit, or in such manner as it may think fit, shall extend
to all civil actions, suits, and proceedings on all sides of the said Courts. The 33rd Section
of the Act No. VI of 1854, which applies only to proof of accounts on the
Equity side of the said Supreme Courts, shall extend to and embrace all
accounts directed to be taken on any side of the said Courts. Whenever
by any Statute or Act, Regulation or Ordinance now in force, or any Statute or
Act to be hereafter in force, certificate, certified copy, or other document,
shall receivable in evidence of any particular in any Court of Justice, the
same, if it is substantially in the form and purports to be executed in the
manner directed by the Statute, Act, Regulation, or Ordinance which makes it
evidence, shall be prim The
improper admission or rejection of evidence shall not be ground of itself for a
new trial or reversal of any decision in any case, if it shall appear to the
Court before which such objection is raised, that, independently of the
evidence objected to and admitted, there was sufficient evidence to justify the
decision, or that, if the rejected evidence had been received, it ought not to
have varied the decision. Nothing
in this Act contained shall be so construed as to render inadmissible in any
Court any evidence which, but for the passing of this Act, would have been
admissible in such Court. Evidence Act, 1855 [Repealed]
Section - 45. Refreshing memory of witness.
Section - 49. Proof of Power of Attorney.
Section - 50. Proof of despatch Letter by Letter Book.
Section - 51. What to beprim
Section - 55. Section XXXIII of Act VI of 1854 extended.